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1976 DIGILAW 140 (KAR)

VIJAYAKUMARA GUPTA K. S. v. DIVL COMMR, BANGALORE

1976-09-03

D.S.TEWATIA, SRINIVASA IYENGAR

body1976
TEWATIA, J. ( 1 ) THE Town Municipal Council, Madbugiri, by its resolution dt. 20-5-1969 proposed to lease out nine shops constructed by the Municipality to nine persons by allotment. The Divisional Commissioner by his order dt. 28-12- 1973, at the instance Of some rate payers, in exercise of his powers Under secs. 303 and 322 of the Karnataka Municipalities Act, 1964 (hereinafter referred to as the 'municipal Act') cancelled the resolution aforesaid and directed the Municipality to lease out the shops in question in public auction. The affected persons to whom the leases of the shops in question had been granted by the Municipality earlier, challenged in this court the aforesaid order of the Divl Commr in WP. 82 of 1974. The learned single Judge by his order dt. 26-84975 allowed the writ petition and quashed the impugned order and it is against this order that the present appeal arises at the instance of only two of the respondents to the writ petition. ( 2 ) THE learned Counsel appearing for the appellants has assailed the order of the learned single Judge only on the ground that the assumption made by the learned single Judge that the provisions of Sec. 211 of the mysore Town Municipalities Act, 1951 are in part materia with the provisions of S. 303 of the Municipal Act, and the reliance on a decision of this court reported in Marichanniah v. Deputy Commr 1964 (1) Myslj. 364. , in which the scope of the provisions of S. 211 had been considered by this Court, for holding that the Divl Commr had no power to cancel the resolution of the Municipal council was not justified. And the order of the Divl Commr dt. 28-12- 1973 has been sought to be sustained on two grounds, viz, (1) that the divl Commr, under-S. 303 of the Municipal Act being designated as the chief Controlling Authority, could, in exercise of that power, cancel the resolution, and (ii) that under S. 322 of the Municipal Act, as a revisional authority, the Divl Commr could interfere with the resolution of the municipal Council in question. ( 3 ) WHETHER the provisions of S. 211 of the Municipalities Act of 1951 and of S. 303 of the Municipal Act are in pan materiel or not, the order of the divl Commr is clearly without jurisdiction as would be presently shown. ( 3 ) WHETHER the provisions of S. 211 of the Municipalities Act of 1951 and of S. 303 of the Municipal Act are in pan materiel or not, the order of the divl Commr is clearly without jurisdiction as would be presently shown. For ease of reference, the relevant provisions of Ss. 303 and 322 of the Municipal Act deserve to be noticed. " S. 303, Chief Controlling Authority.-The Commr shall subject to the control and orders of the Govt, be the Chief Controlling Authority in respect of all matters relating to the administration of this Act and for that purpose may exercise all powers necessary in that behalf. S. 322 (1) The Govt or the Commr may call for and examine the record of any proceedings under this Act of any subordinate officer, and after such enquiry as is deemed fit, if the Govt or the Commr, as the case may be, is satisfied that the order of the subordinate officer is contrary to law and has resulted in miscarriage of justice, pass such orders thereon as the Govt 6r the Commr-deems just. (2) No order under sub-sec (1) shall be made to the prejudice of any party unless he has had the opportunity of being heard. "the question arises as to what is the scope and ambit of the power under S. 303 of the Act. Does this power comprehend within its fold the power of revision or appeal from the resolution of the Town Municipal council or of doing anything which the provisions under the Municipal Act envisage other authorities or officers to do? their Lordships of the Supreme Court in State of Mysore v. Allum karibasappa AIR, 1974 SC, 1863, had an occasion to consider the meaning and scope of the expression 'control' used in S. 54 of the Mysore Co-operative Societies Act no. 11 of 1959. The said section is in the following terms :"where State aid amounting to not less than two lakhs of rupees is given to any co-operative society, the State Govt, if it is satisfied that it is necessary in public interest so to do, may by notification in the Official Gazette take power to exercise such control over the conduct of business of such society as shall suffice in the opinion of the state Govt to safeguard the interests of the State. " ( 4 ) IN that case, the Govt in exercise of powers presumed to have been invested in it by S. 54, issued two notifications, whereby, in substance, the existing committee stood displaced and substituted by a new committee. Their Lordships held that S. 54 contemplated exercise of control over the conduct Of business. The word 'control' suggests check, restraint or influence, and the said term merely comprehended the power to regulate and restrain from action, while the State in the guise of exercising control had displaced the committee of Management and substituted its own committee. ( 5 ) IN view of the meaning given to the word 'control' by their Lordships, the 'authority' whether 'chief or 'ordinary' that exercised control could not assume to itself either the revisional and appellate power or the powers statutorily vesting in another authority. We reach the same conclusion when we examine the other relevant provisions of the Municipal act. ( 6 ) IN the Municipal Act the only provisions that envisage cancellation of a resolution of the Town Municipal Council is S. 306 which power inheres in the Deputy Commr. The other provision in the Municipal Act is S. 309 which invests the Divl Commr with the kind of power that vest in the deputy Commr under S. 306, but only in regard to the City Municipal councils. The aforesaid two provisions are in the following terms:" 306. Deputy Commr's power of suspending Execution of order etc, of Municipal Council.- (1) If in the opinion of the Deputy Commissioner, the execution of any order or resolution of a Town Municipal Council, or the doing of anything which is about to be done Of is being done by or on behalf of a Town Municipal Council, is unlawful or is causing or is likely to cause injury or annoyance to the public, or to lead to a breach of the peace, he may, by order in writing under his signature, suspend the execution or prohibit the doing thereof. (2) When a Deputy Commr makes any order under this section, he shall forthwith forward to Govt and to the Commr and to the municipal Council affected thereby a copy of the order, with a statement of the reasons for making it; and it shall be in the discretion of the Govt to rescind the order, or to direct that it shall continue in force with or without modification, permanently or for such period as it thinks fit : provided that no order of the Deputy Commr passed under this section shall be confirmed, revised or modified by the Govt without giving the Municipal Council, a reasonable opportunity of showing cause against the said order. 309. Commr's power in respect of City Municipal Councils- in respect of City Municipal Councils the powers conferred by sections 306, 307 and 308 shall be exercisable by the Commr and the provisions of the said sections shall mutatis mutandis, apply to such City municipal Councils and their Councillors. " ( 7 ) IF the provision of S. 303 itself had been intended to comprehend the power in the Divl Commr to cancel the resolution either of the Town municipal Council or of the City Municipal Council then, there was no necessity to specifically invest him with the exercise of the power under S. 306 regarding the City Municipal Council. The provisions of s. 309 lead to the one and the only conclusion that the legislature had not comprehended the provisions of S. 308 as investing the Divl Commr with power of cancelling the resolution of the City Municipal Council and therefore it bad to make a specific provision in that regard investing him With such a power; If the legislature had intended that the DM Commn should exereise the power of suspension or cancellation of the resolution of. the town. Municipal Council also, then it would have made a mention of the town Municipal Council as well in S. 309. That the legislature did not do so leads to the one and the only conclusion that it had not intended the divl Commr to exercise any such power in regard to resolutions passed by the Town Municipal Council. the town. Municipal Council also, then it would have made a mention of the town Municipal Council as well in S. 309. That the legislature did not do so leads to the one and the only conclusion that it had not intended the divl Commr to exercise any such power in regard to resolutions passed by the Town Municipal Council. Hence, we are clearly of the opinion that the provisions of S. 303 of the Municipal Act do not comprehend within its ambit the power in the Divl Commr of cancellation of the resolutions passed by the Town Municipal Council. As to his power under S. 322 of the Municipal Act, it may be observed that the Municipal- Council, can by no stretch of imagination be considered an officer, much less an officer -subordinate to the Divl Commr. The Act itself makes distinction, between the resolution of a committee and the orders passed by the subordinate officers. A resolution of the Municipal Council, can by no stretch of imagination, be considered an order. ( 8 ) IN the result, we entirely concur in the view taken by the learned single Judge that the impugned order dt. 28th. Decr, 1373, passed by the divi Commr was without jurisdiction and thus illegal. Hence, the appeal is dismissed. The parties are left to bear their own costs. --- *** --- .