HARESH OCTROI CO. v. S. RAMABHADRAN — 1979 DIGILAW 201 (GUJ)

G. T. NANAVATI, P. D. DESAI, J. ( 1 ) THE Bagasra Nagar Panchayat which is the second respondent in the Letters Patent Appeal and petitioner in the writ petition is constituted under the Gujarat Panchayats Act 1961 (hereinafter referred to as the Act) and it exercises powers and performs functions under the various provisions of the Act. Sec. 180 inter alia enables a nagar panchayat to lease by public auction or private contract the collecting of octroi. The petitioner Panchayat gave an advertisement in a daily news paper on July 27. 1979 inviting applications from persons interested in taking such lease. A public auction took place on August 9 1979 The appellate in the Letters Patent Appeal gave a bid for Rs. 8 26 503 the third respondent in the said appeal gave a bid for Rs. 8 27 0 There were other bids but they were not higher than the bids of these two parties. By a circular resolution No. 441 passed by the petitioner Panchayat on August 7 1979 the bid of the appellants which was lower than that of the third respondent was accepted. The third respondent preferred an appeal on August 16 1979 to the District Panchayat Amreli under sec. 290. The Appeal Committee of the District Panchayat by its order dated August 20 1919 dismissed the said appeal. The third respondent preferred Special Civil Application No. 2569 of 1979 against the said appellate order. However the said writ petition was withdrawn in view of the alternative remedy available under sec. 305. Soon after the withdrawal the third respondent preferred on September 12 1979 a revision application before the Development Commissioner under sec. 305 The Development Commissioner by his order dated September 29 1979 allowed the revision application and quashed the order of the Appeal Committee of the District Panchayat as also resolution No. 44 of the petitioner Panchayat. The ground on which Development Commissioner quashed the aforesaid order and resolution was that upon a bare reading of the resolution in question it appeared that the lower bid of the appellants was accepted in preference to the higher bid of the third respondent on the ground that whereas the partners of the appellant firm were local residents the third respondent was outsider. In the opinion of the Development Commissioner the ground which prevailed with the petitioner Panchayat was not relevant and germane particularly in view of the fact that the third respondent was a resident of Junagadh District which was next adjacent to Amreli District. The appellants feeling aggrieved by the decision of the Development Commissioner preferred special Civil Application No. 2914 of 1979 which came on for hearing b fore the learned Chief Justice. By a speaking order dated October 17 1979 the learned Chief Justice summarily rejected the said writ petition. Hence the Letters Patent Appeal. The writ petition of the petitioner Panchayat which has been tagged on with the Letters Patent Appeal is directed against the self same order of the Development Commissioner and it has come up for hearing for the first time along with the Letters Patent Appeal. ( 2 ) WE are in entire agreement with the reasoning and conclusion of the learned Chief Justice and in our opinion there is no merit in this Letters Patent Appeal as also in the writ petition. ( 3 ) ONE of the grounds which was urged before the learned Chief Justice and which has been forcefully reiterated before us on behalf of the petitioner Panchayat and the appellants is that the State Governmenthad no jurisdiction under sec. 305 to quash the resolution in question passed by the petitioner Panchayat. The submission before the learned Chief Justice was that under sec. 305 the revisional powers could be exercised only in respect of any order passed inter alia by any Panchayat and that a resolution passed by the petitioner Panchayat granting lease under sec. 180 amounts to a decision and it cannot be said to be such an order. The argument was rejected by the learned Chief Justice on the ground that under sec. 305 the State Government had the power to call for and examine the record of proceedings of any Panchayat or Committee thereof and that the width of the power indicated that if any decision taken or order made in such proceeding was not in accordance with law or was improper the revisional power could be properly exercised. We agree with the view of the learned Chief Justice. We agree with the view of the learned Chief Justice. In addition we would like to point out that even assuming that there is a distinction between an order and a resolution passed by a panchayat and that what is revisable under sec. 305 is an order and not resolution it requires to be noted that so far as the present case is concerned the revisional power was exercised under sec. 305 against the appellate order of the District Panchayat. Sec. 29) sub-sec. (3) which deals with the scope of the appellate power of the District Panchayat in terms speaks of the District Panchayat passing such order on the appeal as it may deem just and proper (underlining supplied ). There is no manner of doubt therefore that when the District Panchayat dismissed the appeal preferred by the respondent its decision amounted to an order and that such order would in any event be revisable under sec. 305 on the plain terms of the said section. ( 4 ) ANOTHER argument based on sec. 305 which was not urged before the learned Chief Justice but which was placed for our consideration was that under sec. 290 sub-sec. (3) the order of the District Panchayat in appeal is to be treated as final and that in view of that provision revisional powers under sec 305 could not have been exercised. Inasmuch as this argument was not advanced before the learned Chief Justice it is doubtful whether we can entertain it for the first time in Letters Patent Appeal. Even assuming however that such an argument can be entertaned in our opinion there is no merit in the same. The appellate order upon which finality is conferred under sec 290 (3) does not restrict the exercise of revisional powers under sec. 305. The power of superintendence is given to the State Government under sec. 305 in general terms in respect of proceedings of any panchayat or of any committee thereof or of any officer excepting the proceedings of the Nyaya Panchayat or of the District or the sessions Court in judicial proceedings from the proceedings of a Nyaya Panchayat for the purpose of satisfying itself as to the legality or propriety of any order passed. By mentioning one specific exception to the general power the Act has indicated an intention to include every other proceeding which is subject to the revisional power of the State Government. This is the view taken by the Supreme Court in Everest Apartments Cooperative Housing Society Ltd. v. State of Maharashtra A. I. R. 1965 S. C. 1449 in the context of similarly worded provisions of the Maharashtra Cooperative Societies Act 1960 In view of the said decision in our opinion which must apply having regard to the similarity of language even in the context of the provisions of sec. 260 (3) and sec. 305 of the Act we must reject this argument advanced on behalf of the petitioner Panchayat and the appellants. ( 5 ) THE next argument on behalf of the appellants and the petitioner Panchayat was that pursuant to resolution No. 44 a contract for the period commencing from August 22 1979 and ending with August 21 1980 was already entered into by and between the petitioner Panchayat and the appellants on August 13 1979 and that an amount of Rs. 82 650 was deposited and the surety bond as required was also executed on the same day. Not only that but the contract was also acted upon by the parties. The appellants have already engaged staff for collection of octroi and they are actually collecting the same on and with effect from August 22 1979 The first instalment of Rs. 50 0 towards the contract amount was paid on September 1 1979 and second instalment of Rs. 18 775 was paid on September 5 1979 and the third instalment of Rs. 68 875 was paid on October 3 1979 by the appellants to the petitioner Panchayat. In addition the appellants have also paid a sum of Rs. 6887. 50 towards 10% case levied by the District Panchayat Amreli on September 1 1979 Under such circumstances when the matter was in the realm of a concluded contract the revisional power under sec. 305 could not have been invoked and exercised and in any case such power ought not to have been exercised. From the speaking order made by the learned Chief Justice it is not clear whether this argument was advanced before him because he has not dealt with the same. 305 could not have been invoked and exercised and in any case such power ought not to have been exercised. From the speaking order made by the learned Chief Justice it is not clear whether this argument was advanced before him because he has not dealt with the same. Still however we have heard the parties on this point and are of the opinion that there is no substance in this submission. So far as jurisdiction to exercise revisional powers under such circumstances is concerned we have no doubt that the State Government which is an independent authority can undoubtedly exercise its quasijudicial powers under sec. 305 to quash the resolution upon which Contract was founded on legitimate grounds. The analogy based on the revisional powers under sec. 211 of the Bombay Land Revenue Code 1879 in respect of which it has been held that such power could not be exercised once a Sanad is granted and the matter is within the realm of Contract cannot be pressed into service. Whereas under sec. 305 of the Act revisional power is conferred upon the State Government which is an outside adjudicating authority in respect of matters which fall within the jurisdiction of an autonomous body like the panchayat the power under sec. 211 of the Bombay Land Revenue Code is conferred upon the State Government and certain other revenue officers in respect of revenue powers exercised by subordinate officers and agents. What the competent authority revises under sec. 211 of the Bombay 1. and Revenue Code in substance and reality is the order of one of its own limbs exercising revenue powers and under such circumstances once a concluded contract comes into existence the revisional power has been held to be ousted on the ground that contractual obligations having been incurred by the State pursuant to the contract executed on behalf of the State it is not permissible to the State or the revenue authorities to alter the covenants in exercise of revisional jurisdiction. Panchayats are not in that sense limbs of the Government exercising governmental powers and contracts entered into by them are not contracts on behalf of the State Government. Panchayats are autonomous bodies functioning under the statute and they have the power to enter into contracts in their own name. Panchayats are not in that sense limbs of the Government exercising governmental powers and contracts entered into by them are not contracts on behalf of the State Government. Panchayats are autonomous bodies functioning under the statute and they have the power to enter into contracts in their own name. Having regard to this basic distinction we do not think that any argument can be advanced that revisional power under sec. 305 of the Act cannot be exercised in relation to the orders of a Panchayat by a quasi judicial authority like the State Government once a concluded contract comes into existence. ( 6 ) THE question whether on merits such powers ought to have been exercised on the facts and in the circumstances of the case is really a matter which does not pertain to the writ jurisdiction of the Court unless it is shown that the exercise of power is vitiated on any ground which could be urged in order to seek the relief of certiorari or in the nature of certiorari. In other words unless there is lack of jurisdiction or an error of law apparent on the face of the record or breach of natural justice this Court cannot interfere and sit as it were in appeal over the exercise of revisional powers. There is no question here of lack of jurisdiction as held above nor any question of breach of natural justice arises. No error of law apparent on the face of record has been shown. The ground which weighed with the revisional authority was that in accepting the lower bid and granting lease in favour of the appellants the consideration which weighed with the petitioner Panchayat was totally extraneous or impermissible. namely that the partners of the appellant firm were local residents whereas the third respondent whose bid was higher was not a local resident. That this was the consideration which must have weighed with the petitioner Panchayat is apparent from the contents of the circular resolution No. 44 which contains the ground upon which the lower bid was recommended for acceptance by the Chairman of the petitioner panchayat. The Development Commissioner and the learned Chief Justice have also found accordingly. That this was the consideration which must have weighed with the petitioner Panchayat is apparent from the contents of the circular resolution No. 44 which contains the ground upon which the lower bid was recommended for acceptance by the Chairman of the petitioner panchayat. The Development Commissioner and the learned Chief Justice have also found accordingly. We see no reason to take a different view of the matter and having regard to the extraneous consideration which appears to have weighed with the petitioner Panchayat in accepting the lower bid of the appellants we have no hesitation in holding that the revisional power was properly exercised. ( 7 ) IT was urged in this connection that having regard to the course of events no interference ought to have been made in revision by the Development Commissioner. What was pressed into service in this connection was the various things which have happened in the direction of the implementation of the contract after circular resolution No. 44 was passed. It is true that after the circular resolution was passed the contract has been executed and it has been acted upon and the appellants have worked the contract and made payments. This consideration though relevant is not decisive. It cannot be overlooked that this is not a case where the aggrieved party namely the third respondent has not resorted to the remedy available to him with expedition and as a result thereof these several things have occurred. Resolution No. 44 was passed on August 7/9/10 1979 The contract was to commence from August 22 1979 Meanwhile soon after the resolution was passed the third respondent preferred an appeal to the District Panchayat on August 16 1979 that is to say within six days of the passing of resolution No. 44 and obtained interim relief before the term of the contract had commenced. The District Panchayat disposed of the appeal on August 20 1979 The third respondent soon thereafter preferred the earlier writ petition and upon its withdrawal preferred a revision application before the Development Commissioner on September 12 1979 The revision application was disposed of on September 29 1979 by an order made in favour of the third respondent. The District Panchayat disposed of the appeal on August 20 1979 The third respondent soon thereafter preferred the earlier writ petition and upon its withdrawal preferred a revision application before the Development Commissioner on September 12 1979 The revision application was disposed of on September 29 1979 by an order made in favour of the third respondent. Therefore the third respondent has shown utmost diligence and expedition and as a result there of within a period of one month and one week of the commencement of the term of the contract the revisional authority has quashed the resolution which was at the foundation of the contract. The delay if any which has occurred and which has brought about some complications is due to the inherent delay which is common in any judicial or quasijudicial proceeding in our country for which an aggrieved party cannot be refused just relief. ( 8 ) RELIANCE was placed on behalf of the appellants and the petitioner Panchayat on the decision of the Supreme Court in Ramana Dayaram Shetty v. The I. A. Authority of India A. I. R. 1979 S. C. 1628 and particularly upon the observations made in para. 35 of the said decision where the Supreme Court refused to grant relief to the petitioner although it found that the decision accepting the tender of the respondent was violative of the constitutional provisions. We are unable to appreciate as to how the exercise of discretion by the Supreme Court on the facts and in the circumstances of that case can ever be pressed into service as providing a guideline for the exercise of discretion in another case which must be decided on its own facts. In any case it is apparent from the observations contained in para 35 that main consideration which weighed with the Supreme Court in that case was that the petitioner in that case had waited for a period of five months before invoking judicial remedy. Besides it was found in that case that it was gravely doubtful whether the writ petition preferred by the petitioner was bona fide with a view to protecting his own interest. No such circumstances are present here. In our opinion therefore even on this submission the appellants and the petitioner Panchayat must fail. Besides it was found in that case that it was gravely doubtful whether the writ petition preferred by the petitioner was bona fide with a view to protecting his own interest. No such circumstances are present here. In our opinion therefore even on this submission the appellants and the petitioner Panchayat must fail. ( 9 ) IN the result we concur in the decision of the learned Chief Justice and summarily reject the Letters Patent Appeal as also the writ petition. No orders on Civil Application No. 2999 of 1979. ( 10 ) IN view of the fact that as a result of these proceedings the lease granted in favour of the appellants will forthwith come to an end some complications are likely to arise. It will be for the petitioner Panchayat to decide as to how it has to act in accordance with law in order to implement the decision of the revisional authority. The petitioner Panchayat will legitimately take some time in order to reach such decision. It has been averred in the writ petition filed by the petitioner Panchayat that it has no agency for collection of octroi. The result would be that though octroi has been levied it may not be possible to collect the same once the appellants are ousted forthwith. This would result in loss of public revenue and evasion of tax. Such a situation cannot be allowed to prevail. Under such circumstances we are of the view that till the petitioner Panchayat takes decision in accordance with law in order to implement the decision of the revisional authority the appellants should be allowed to function in accordance with the terms of their contract purely as and by way of a temporary and stop gap arrangement. The petitioner Panchayat will take the necessary action within a period of one month from today and the order made herein continuing the arrangement in favour of the appellants will automatically terminate upon the expiry of the period of one month from today. The petitioner Panchayat will take the necessary action within a period of one month from today and the order made herein continuing the arrangement in favour of the appellants will automatically terminate upon the expiry of the period of one month from today. We also wish to make it clear that the claims if any of the appellants qua the petitioner panchayat as a result of the ultimate outcome of these proceedings and vice versa being not the subject matter of the writ petition of the Panchayat and the writ petition out of which the Letters Patent Appeal arose must not be taken to have been decided herein Appeal and petition dismissed. .