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1982 DIGILAW 298 (KER)

MADHUSOODANAN NAIR v. GOVERNOR OF KERALA

1982-12-13

P.SUBRAMONIAN POTI, T.CHANDRASEKHARA MENON

body1982
Judgment :- 1. Challenge is made in this writ petition to the decision made by the Government of Kerala to create the new District of Pathanamthitta. The petitioner is an advocate practising in the courts at Adoor, the sub divisional headquarters of one of the revenue divisions in Quilon District. The respondents originally impleaded to the proceedings are the Governor of Kerala, the State of Kerala, represented by the Chief Secretary to Government and the Special Officer appointed for taking steps in respect of the formation of the new District. The petitioner has sought for a declaration from this Court that the first and second respondents have no power to create a new District by an executive order. A writ of mandamus is also prayed for forbearing the respondents from implementing the decision to create the new District in the State as also a writ of the same nature forbearing the Special Officer from taking any further steps in her capacity for the formation of the Pathanamthitta District. By an amendment to the Original Petition, petitioner also seeks a writ of quo warranto calling upon the third respondent to show to the court under what authority she is holding the post as Special Officer. 2. The case of the petitioner in the matter is as follows. There is no legislation empowering the Governor or the State of Kerala to form districts or to alter the limits of the districts. In respect of the former Malabar area of the State, under the Kerala Adaptation of Laws Order the Madras District Limits Act, I of 1865 is in force. That Act makes it lawful for the State Government from lime to time to alter limits of existing districts or zilas. This statute had enabled the Government of Kerala to bifurcate the then Malabar District in January 1957 and form the new districts of Cannanore, Kozhikode and Palghat. Petitioner would further point out that it was on the basis of the same statute that the districts of Malappuram and Wynad were subsequently formed. However in the Travancore-Cochin area of the State this Act could have no application and as stated earlier no statute enables the Government to form new districts. 3. Petitioner would further point out that it was on the basis of the same statute that the districts of Malappuram and Wynad were subsequently formed. However in the Travancore-Cochin area of the State this Act could have no application and as stated earlier no statute enables the Government to form new districts. 3. Under the Constitution Parliament is conferred with the power to form new States, to increase or diminish the area of any State and alter the boundaries and name of any State (Article 3). There is no corresponding power, according to the petitioner, given to the States to form districts or alter the boundaries of the districts. Art.154 vests the Governor with the executive power of the State. Art.162 provides that the executive power of a State shall extend to the matters with respect to which the Legislature of the State has power to make laws but in any matter with respect to which the legislature of a State and Parliament have power to make laws, the executive power of the State shall be subject to, and limited by, the executive power expressly conferred by the Constitution or by any law made by Parliament upon ...the Union or authorities thereof. Therefore the State through its executive head the Governor can exercise the Executive power only on such matters with which the legislature of the State has power to make laws and no other. The legislative powers of the State as stated in Art.246(3) of the Constitution are with respect to any of the matters enumerated in List II in the Seventh Schedule of the Constitution (referred to as the 'State List'). The executive power of the State is therefore, as per the contentions raised by the petitioner, conferred to the subjects specifically enumerated in List II of the Seventh Schedule. The formation of a district is not one of the subjects in List II. In respect of constitution of Municipal Corporations, Improvement Trusts, District Boards and other local authorities and village administration there is specific provision in Entry 5 in the State List. But not for formation, abolition or alteration of boundaries of districts. The formation of a district is not one of the subjects in List II. In respect of constitution of Municipal Corporations, Improvement Trusts, District Boards and other local authorities and village administration there is specific provision in Entry 5 in the State List. But not for formation, abolition or alteration of boundaries of districts. The petitioner would therefore urge that the State cannot trace its power of formation of a district to any entry in the State List and it is only in the Union List that power could be traced in view of Entry 97 of List I of the Seventh Schedule (the Union List). That'entry' relates 'to any other matter not enumerated in List II or List III including any tax not mentioned in either of those lists.' Consequently according to him there is a total lack of jurisdiction for the State of Kerala to form a district in that part of the State where no specific enactment empowering the State to form a district exists. 4. The petitioner also refers to the Kerala Board of Revenue Act which. refers to the powers of the Board of Revenue. A full Board of Revenue alone has got powers and do business in respect of 10 items mentioned under Notification No.LR(E) 1-28890/64 published in the Kerala Gazette of 24-8-1965 as per rules framed under S.5 of the Board of Revenue Act. These rules relate to exercise of jurisdiction by one or more members of the Board. The rules cannot obviously empower the Board of Revenue with the power of formation and redistribution of districts when there is no statutory enactment which clothes the Government or any authority with power to form a new district. 5. The petitioner would also contend that even assuming that the Government has power to form a new District, that can only be done in accordance with the rules framed under the Board of Revenue Act for which the full board of the Board of Revenue has to meet if they have power to recommend the creation of a new district or to alter the existing boundaries of a district. The petitioner would aver that the Board of Revenue has not been consulted in the matter. Nor has the Government taken into account the relevant matters regarding the necessity, viability, financial involvements etc. The petitioner would aver that the Board of Revenue has not been consulted in the matter. Nor has the Government taken into account the relevant matters regarding the necessity, viability, financial involvements etc. which should be the deciding factors in taking a decision on the formation of a new District. 6. Mala fides is also alleged by the petitioner in the matter. According to him the decision on the formation of the new district of Pathanamthitta was taken when the Council of Ministers had no real majority in the Legislative Assembly, they were kept in office by the casting vote of the Speaker and Sri. K. K. Nair one of the members of the Assembly had openly announced his decision to vote with the Ministry only on the assurance that a new district of Pathanamthitta would be formed as he had demanded. The petitioner further alleges that the said gentleman had openly announced that before he voted on the Vote on Accounts, he would press for the announcement of the actual areas, and headquarters of the proposed Pathanamthitta District. The circumstances can only point out that the decision to form the district had been taken not keeping in mind public interest, administrative conveniences or the financial implications involved in the question. The petitioner pleads that the decision of the Cabinet to form a new district as demanded by Sri. K. K. Nair is an abuse of the executive power of the State and hence unconstitutional, void and inoperative. Writ of quo warranto is prayed for on the ground that the appointment of the third respondent as Special Officer is without the support or backing of any constitutional provision, act, rules or executive power vested in the Governor of Kerala or the State of Kerala. This plea is advanced on the basis that the order relating to the formation of the new district is ultra vires since there is no power vested in the Governor or State of Kerala to create a district or alter the boundaries of any existing district. 7. In the counter affidavit filed on behalf of the Governor and the State the locus standi of the petitioner and the maintainability of the petition are questioned. It is contended that the issues raised in the case are mainly of a political nature. 7. In the counter affidavit filed on behalf of the Governor and the State the locus standi of the petitioner and the maintainability of the petition are questioned. It is contended that the issues raised in the case are mainly of a political nature. The basis of the petition is not any private or personal wrong to the petitioner but an alleged wrong to be suffered by a section of the people. The new district is formed for administrative purposes. Reorganisation of new districts are taken up by Government for consideration taking into account relevant factors like population, geographical features, administrative convenience and development needs. 8. The counter affidavit brings to the notice of the court that after the Kerala State was formed, new Districts have come into existence created on administrative grounds Thus the Districts of Ernakulam, Alleppey and Idukki in the former Travancore Cochin area and the Districts of Malappuram and Wynad in the former Malabar area have been formed exercising the -executive power of the Government. The fact that the Madras District Limits Act is not applicable does not deprive the Government of its executive power to form new Districts. A District is itself a defined portion of the State. The formation of a District or any decision to bring about changes in boundaries of a District is a power ancillary and incidental to many of the fields of legislation in regard to which the State Legislature can make law. In order to implement the policies in regard to the subjects under the various entries in List II and III the State must have an effective administrative machinery. Such a machinery cannot operate in all these fields from the State Capital. Dividing the State into small and compact districts is an administrative necessity well within the executive power of the State. The final decision regarding the formation of Pathanamthitta District, it is stated in the counter affidavit, would be taken by the Government after the report of the Special Officer is considered in all its details. It is also stated that the legal formalities would be complied with when the Pathanamthitta District is formed. It would be wrong to assume, so runs the counter affidavit, that the decision to appoint the third respondent is traceable only to political expediency rather than administrative exigency. 9. It is also stated that the legal formalities would be complied with when the Pathanamthitta District is formed. It would be wrong to assume, so runs the counter affidavit, that the decision to appoint the third respondent is traceable only to political expediency rather than administrative exigency. 9. A second counter affidavit filed on behalf of the State seeks to sustain the Government's power to appoint a Special Officer in the matter of formation of the new District. The Government by virtue of its executive power could direct any of its officers to gather particulars or submit report in respect of any matter concerning the administration of the State or in respect of which the executive power of the State extends. A contention is also taken up there that the Governor of Kerala cannot be impleaded or proceeded against in view of Art.361 of the Constitution. 10. We may note here that three persons have got themselves impleaded as additional respondents-respondents 4 to 6. Respondents 4 and 5 are alleged to be the President and General Secretary of a Committee known as Pathanamthitta District Formation Working Committee and they oppose the original petition supporting the Government's decision in the formation of the new District. The sixth respondent is the Adoor Bar Association represented by its Secretary. The sixth respondent supports the petitioner's contentions. 11. We see no reason to reject the original petition on the ground that the petitioner has no locus standi in the matter. Any citizen in the State should Be able to question any illegal or ultra vires action of the Government. In a democratic State every citizen is in a way participant in the governance of the State and therefore if the Government goes astray in any matter, the citizen should have the right to approach the proper legal forum for questioning such action. The citizen has the right to see to it that the government is on the proper path. Certainly the judiciary will keep aloof from party politics and will not intervene in what are essentially political contests. The citizen has the right to see to it that the government is on the proper path. Certainly the judiciary will keep aloof from party politics and will not intervene in what are essentially political contests. While the courts have to draw a line between political and judicial questions taking due note of the division of powers between the three branches of the Government and doits best not to tread on other's grounds, the judiciary cannot refrain from making its own decision if a citizen complains of an illegal or ultra vires action of the State or its officers. It is true that before intervening in any such matter, the court will exercise that discretion vested in it by the law and the Constitution only taking the relevant factors like the nature of the harm that might be the consequence of the impugned action, the difficulties that might crop up consequent on the court's decision in the matter, the extent and nature of the complainant's interest in the matter made before the court. It is one thing to say that the court has no jurisdiction in the matter and another to say that the circumstances of the case do not warrant court's intervention. While the court will not abdicate its authority for intervention in proper and necessary cases, such intervention will be only an exercise of sound judicial discretion weighing every relevant factor and with the sole intention of advancing justice. 12. We will now go into the first question raised by Mr. Ramakumar, learned counsel for the petitioner, whether the Government has any power to exercise any executive power to form a new District. A District is only a territorial unit for the proper administration of the State. Its relation with the State of which it forms part is in no way comparable to the relation of the State with the Union of India. The State is not a Union of Districts while under the Constitution, India is a union of the States. A District has no constitutional significance. It is merely a territorial unit that is formed solely for administrative convenience of a State. The territorial unit thus formed for administrative purposes is called a District on account of historical factors. The State is not a Union of Districts while under the Constitution, India is a union of the States. A District has no constitutional significance. It is merely a territorial unit that is formed solely for administrative convenience of a State. The territorial unit thus formed for administrative purposes is called a District on account of historical factors. The reason why the formation of District as such does not figure in any of the Lists Union List, State List or Concurrent List is because of this. We have no hesitation in accepting that the formation of a District or any decision to bring about changes in boundaries of a District is a power ancillary and incidental to the administrative power of the State in the fields in respect of which the State Legislature can make laws. 13. We may in this connection point out that there cannot be any controversy that the powers of the State executive only do extend to matters upon which the State Legislature is competent to legislate as Mr. Ramakumar points out. The learned Advocate General has not controverted that. That principle is clear from the language of Art.162 of the Constitution and we have also the authorities of the Supreme Court for that. See Ram Jawaya v. State of Punjab (AIR. 1955 SC. 549); State of Madhya Pradesh v. Thakur Bharat Singh (AIR. 1967 SC. 1170) and Bishambhar Dayal Chandra Mohan v. State of U. P. (1982)1 SCC. 39. As the last of the decisions also points out the State in its exercise of executive power is charged with the duty and responsibility of carrying on the general administration of the State and so long as the State Government does not go against the provisions of the Constitution or any law, the width and amplitude of executive power cannot be circumscribed. If there is no enactment covering a particular aspect, the Government could carry on the administration by issuing administrative orders until the Legislature makes a law in that behalf. 14. In respect of setting up a Bureau of Investigation for investigation of evasion of tax, justice Debiprasad Pal of the Calcutta High Court said in Narayana, A. S. v. State of West Bengal (78 CWN. 14. In respect of setting up a Bureau of Investigation for investigation of evasion of tax, justice Debiprasad Pal of the Calcutta High Court said in Narayana, A. S. v. State of West Bengal (78 CWN. 295): "That the State Government was entitled to set up the bureau in the exercise of its executive government must obtain prior legislative sanction for the exercise of its legislative power; the mere fact that there was no law for the constituting of the Bureau did not by itself affect the validity of the constitution of the Bureau." 15. A Division Bench of the Andhra High Court speaking through Justice Ekbote, as he then was held in R. Sultan v. State I.L.R. (1970) A. P. 1075: "There is admittedly no provision in the Constitution on the lines of Art.3 of the Constitution of India empowering the State Government to organise or reorganise Districts, Taluks or Villages situate within the geographical limits of the States. It would however be a mistake to infer from the absence of any specific provision in the Constitution that the State Executive or legislature is not competent to divide the area of the State into several Districts, Divisions, Taluks, Firkhas or Village. Art. 154 vests the Executive power of the State in the Governor. For purposes of effectively executing the law and for the purpose of carrying out effective and efficient administration, formation of Districts. Taluks and Villages is necessary and that is why such a power to form and re-form District or other Units is a necessary power which inseparably goes with the power to legislate on the subjects enumerated in the State or Concurrent list. This power necessarily goes along with both the executive power referred to in Art.154 read with Art.162 and with the legislative power referred to in Art.246 read with the several entries of the State and the Concurrent list. The State Governor who has executive power and who can exercise the same either directly or through the officers subordinate to him appointed at the District. Taluk or Village level, can in the exercise of his executive powers constitute or reconstitute District. Taluks or Village for the purpose of carrying out his executive obligation in regard to entries in the State or Concurrent list. Taluk or Village level, can in the exercise of his executive powers constitute or reconstitute District. Taluks or Village for the purpose of carrying out his executive obligation in regard to entries in the State or Concurrent list. Formation or re-formation of a District is an incidental or ancillary or subsidiary power relating to various entries in the State or Concurrent list, and Entry 97, the residuary provision cannot be said to be attracted to the said subject." 16. As the Supreme Court of the United States said in Missouri v. Lewis (101 U. S.30): "Each State has the right to make political subdivisions of its territory for municipal purposes, and to regulate their local Government Convenience, if not necessity, often requires this to be done, and it would seriously interfere with the power of a State to regulate.its internal affairs to deny to it this right." 17. Now, we come to a more difficult question. According to Mr. Ramakumar, the learned counsel for the petitioner, assuming the State has got the power to create a new District it can only be done in accordance with the legislation it has passed on the subject, here, the Kerala Board of Revenue Act. Mr. Ramakumar would contend that as per the provisions of that Act the full Board of Revenue alone could do that. For a proper understanding of the contention in the matter, we quote here the relevant provisions of the Act and the rules made thereunder. "S. 3. Constitution of the Board of Revenue. There shall be constituted for the State of Kerala a Board of Revenue consisting of one or more members as the Government may from time to time think fit to appoint. 4. Powers of control and supervision of the Board: The Board shall be the administrative head of the departments mentioned in the First Schedule and shall exercise general supervision over the departments mentioned in the second Schedule. (2) The Board shall exercise such other powers as the Government may, by notification in the Gazette, confer on it. 5. 4. Powers of control and supervision of the Board: The Board shall be the administrative head of the departments mentioned in the First Schedule and shall exercise general supervision over the departments mentioned in the second Schedule. (2) The Board shall exercise such other powers as the Government may, by notification in the Gazette, confer on it. 5. Exercise of jurisdiction by one or more members of the Board: The Board may, with the previous sanction of the Government, make rules for the exercise by one or more members of the Board of the powers and functions of the Board and all decisions made pursuant to such exercise shall be deemed to be decisions of the Board." "Section 12: Power of Government to make rules. The Government may make rules to carry out all or any of the purposes of this Act." "The first Schedule. (See S.4(1)) Departments over which the Board shall have administrative control. 1. Land revenue including survey, settlement, land records and land acquisition. 2. Excise and prohibition. 3. Agricultural income-tax 4. Court of Wards. 5. Mines and Minerals. 6. Sales tax 7. Famine relief. 8. Civil Supplies 9. Housing. 10. The Observatory, Trivandrum. The second schedule (See S.4(1)) Departments over which the Board shall have such control as is found necessary for co-ordinating their activities and increasing their efficiency. 1. Local bodies. 2. Co-operation. 3. Advancement of backward 4. Fisheries. communities 5. Registration. 6. Colonisation. 7. Mines and Minerals" A notification has been issued in exercise of the powers conferred by S.5 of the Kerala Board of Revenue Act and in supersession of all previous sanction notification on the subject, by the Board of Revenue with the previous sanction of the Government in regard to the distribution and reservation of its business. As per that creation and redistribution of Districts, Divisions and Taluks is a subject reserved for disposal by the Full Board. 18. What Mr. Ramakumar contends is that as is well settled if there is a mode prescribed as regards the manner in which a matter has to be done by a legislation, whatever be the ambit of the executive powers of the Government, that mode will have to be strictly adhered to in doing the same. The Government cannot ignore the legislation. Therefore, according to the learned counsel, only a Full Board could decide on the creation of a new District. The Government cannot ignore the legislation. Therefore, according to the learned counsel, only a Full Board could decide on the creation of a new District. Admittedly a Full Board has not taken a decision on that and therefore the order of the Government in the matter is bad and void for that reason. The learned Advocate General here also does not controvert the general proposition advanced by the counsel for the petitioner. Here what he contends is that apart from the fact that the Board shall be the administrative head of the department mentioned in the first schedule and could exercise general supervision over the departments in the second schedule, it can exercise only such other powers as the Government by notification in the Gazette confer on it. The formation of a District is not a power which has been conferred on the Board by any notification in the Gazette. Therefore the subject reserved to the Full Board relating to creation etc. of a District can at best be only an advisory jurisdiction in respect of matters connected with the creation of a District. 19. In the light of S.4 of the Board of Revenue Act, we are inclined to agree with the Advocate General. We hold that Government's executive power in respect of matters not conferred on the Board by S.4 or by a notification as per S.4 of the Act would not be fettered by the notification relating to the distribution and reservation of its business by the Board though it might have been issued with the sanction of the Government. 20. In regard to mala fides alleged, we find no merits as such. May be the impugned order is politically motivated. It is difficult for the court to intervene in matters which are completely within the executive powers of the Government and which is purely an administrative matter unless there is a patent abuse of powers. There as pointed out in Balakrishnan v. Union of India (1969 KLT. 693) the court should keep aloof from matters which brings court into immediate and active relation with party contests. It will be a judicial intervention into an essentially political contest. In the above view, we dismiss the writ petition but in the circumstances of the case without costs. Dismissed.