MOHAMMED v. DIRECTOR OF PANCHAYATS — 1987 DIGILAW 621 (KER)

Judgment :- 1. Petitioners in all these original petitions have challenged the refixation or delimitation of wards in different Panchayats in Kerala as per orders passed by the Authorised Officers appointed by the Government in exercise of powers under S.143(1) of the Kerala Panchayats Act, 1960 (for short'the Act'). Such divisions of wards were made after revoking the earlier orders passed by the Deputy Directors of Panchayats, while considering representations filed by interested persons. The refixation now made by the Authorised Officers is challenged on various grounds. Want of jurisdiction, malafide exercise of powers, political motivations and violation of principles of natural justice are the main points urged in these original petitions to assail the impugned orders. Learned Advocate General requested to treat the contentions raised in the counter affidavit filed in O.P. No. 8172/87 as common contentions in all the other original petitions, without prejudice to the Government's right to file separate counter affidavits in other original petitions later, if found necessary. 2. It is stated that Government have decided to hold elections to Panchayat Committees either by December, 1987 or at least by early January, 1988. The material contentions set out in the two counter affidavits, which are relevant, are the following: 3. There are 1001 Panchayats in the State of Kerala and hence, it is impossible to satisfy all the persons in the matter of division of wards. This High Court has directed the Government in the judgment dated 11-11-1986 (in O.P.No.10700/85) to conduct general elections to Panchayats at the earliest. Accordingly, door-to-door enumeration was conducted in all the Panchayats in order to include names of persons who have attained the age of 18 years as on 1-1-1987. This work was completed in April, 1987. The number of voters in wards of Panchayats has increased considerably and disproportionately. Norms have to be observed is fixing the strength of voters in each ward as per the Kerala Panchayats (Fixing of Strength and Division of Wards) Rules, 1962. Hence the necessity arose for re-alighting the boundaries of the wards. That apart, a strong feeling was expressed by the general public that division of wards as existed in 1984 needs revision at least in a good number of Panchayats. In the above circumstances, Government decided to take steps to revise the division of wards. Hence the necessity arose for re-alighting the boundaries of the wards. That apart, a strong feeling was expressed by the general public that division of wards as existed in 1984 needs revision at least in a good number of Panchayats. In the above circumstances, Government decided to take steps to revise the division of wards. Suggestions and objections were invited and Government authorised five persons to exercise its powers vested in S.10(3A) of the Act. About 930 objections and suggestions were received from a large number of Panchayats. Even through the Government could have effected delimitation or re-alignment of wards without referring to any objection, Government wanted to approach this question from an entirely democratic perspective and it was hence that objections and suggestions were invited. The Authorised Officers retorted to a scientific and specific method which is conducive to the proper functioning of the Panchayats when constituted. As the principles of natural justice were observed by hearing all the interested parties, the impugned orders are not liable to be quashed on the ground of violation of such principles. It is also contended that the original petitions are not maintainable in as much as the petitioners have got a more efficacious alternate remedy by invoking S.144(3) of the Panchayats Act. Settlement of disputed question of fact cannot be made by invoking Art.226 of the Constitution. In the counter affidavit filed by the Government dated 13-11-1986 in O.P. No. 9087/84 and 10700/85, the Government have informed this court that revision petitions have been received by the Government on ward divisions and those petitions would be disposed of as early as possible. As the said stand was expressed by the Government as early as 13-11-1986, the petitioners must be credited with the knowledge that the Government are bound to dispose of revision petitions filed by persons aggrieved with the earlier fixation of boundaries. 4. As per S.14D of the Act every person who is not less than 18 years of age on the qualifying date and is ordinarily resident in a panchayat area shall be entitled to be registered in the Electoral Roll for that panchayat area. "Qualifying date" means the first day of January of the year in which the electoral roll is prepared or revised. "Qualifying date" means the first day of January of the year in which the electoral roll is prepared or revised. Hence, if the process of election to Panchayats is delayed beyond the said qualifying date, the Government are bound by statutory compulsions to revise the electoral roll once again. The anxiety shown by the Government in having the election protest started is December, 1987 and to have it completed in January, 1988 is hence justified. 5. As per notification published in the Kerala Gazette dated 19-9-1987, Government have, in exercise of powers conferred by S.143(1) of the Act, authorised the officers mentioned in the schedule thereto to exercise the powers vested in the Government under S.10 (3A) of the Act in regard to all Panchayats in the Districts shown against their names. A copy of the said notification is marked as Ext.R1 (g). The said notification was in supersession of the earlier notifications published by the Government is exercise of the same powers. The impugned orders were passed by those authorised officers referred to in Ext. RI (g). It had accidentally happened that some of the impugned orders were passed by the Authorised Officers by revising some earlier orders passed by the same person who held the office of a subordinate rank then. 6. When these original petitions came up for consideration, learned Advocate General made a suggestion, which according to him is a practical solution for the redressal of grievances expressed by the petitioners. He consulted the Government also before making the suggestion and the Government have consented to act as per the said suggestion if approved by this court. The suggestion is this: As the Government have to conduct panchayat elections in early January, 1988, Government are prepared to consider the objections and contentions contained in all these original petitions by exercising revisional powers of the Government, for which purpose, the Commissioner and Secretary to the Government for Local Administration (Panchayat) of the Government of Kerala will hear the persons concerned on such dates as this court specifies. Learned Advocate General made a request that no direction may be made for issuance of notice to the persons concerned since any such direction would involve much time and would, therefore, cause much delay in commencing the process of election. Learned Advocate General made a request that no direction may be made for issuance of notice to the persons concerned since any such direction would involve much time and would, therefore, cause much delay in commencing the process of election. His further request is that this court may specify the date or dates of hearing by the said Commissioner and Secretary which the parties concerned may take as notice. 7. The aforesaid suggestion was not acceptable to most of the counsel appearing for different petitioners. They contended that Government have no such powers of revision new since the powers exercised by the Authorised Officers were revisional powers vested in the Government. One of the counsel expressed his apprehension that Government have no real intention to rectify the mistakes and the anomalies in the relaxation of wards as such refixations were made with the obvious purpose of scoring an advantage over the opposition patties. The said contention does not require serious consideration. In the democratic system of Government which we follow, the Government would invariably be manned by the elected representatives of the people who belong to one or more political parties. It is inevitable that same (if not one) parties will be in the opposition. There are advantages and disadvantages by being the ruling party or being in opposition. Hence composition of wards or constituencies cannot be normally made by keeping advantages or disadvantages to all parties in equal proportion. That apart, the Court does net possess the antenna to catch the political mood or the electoral inclinations of the people to judge the extent of advantages scored by a political party while making realignment of the boundaries of wards. I shall therefore consider the feasibility as well as legality of the suggestion made by the learned Advocate General. 8. If the Government have further revisional powers over refixation of wards effected by the Officers authorised under S.143 (1), I am disposed to accept the suggestion made by the learned Advocate General for reasons more than one. Firstly, the High Court under Art.226 is under practical disability to make division or refixation or realignment etc. of the wards as they involve intricate questions of fact. They also require evidence to conclude about the viability and such other factors of the wards. Firstly, the High Court under Art.226 is under practical disability to make division or refixation or realignment etc. of the wards as they involve intricate questions of fact. They also require evidence to conclude about the viability and such other factors of the wards. Secondly, the counsel appearing for all the parties as well as the Advocate General have expressed in ore accord that elections have to be held as early as possible in order to quench the thirst of the people to have elected panchayat committees. Pendency of these original petitions, without early disposal, will lead to the consequence of compelling the Government to postpone the elections. Such a consequence must be averted as far as possible. If the elections are not held in January, 1988, the inevitable consequence would be to postpone them to a period which would be several months thereafter because of the requirement to have enumeration of electoral rolls based on the qualifying date, as per S.14D of the Act. Thirdly, if Government have revisional powers, such powers can be exercised more efficaciously for undoing the mistakes, if any, committed by the Authorised Officers. This is on account of the machinery which Government can command and the wherewithals which Governmental power can possess as they are necessary for making modifications or alterations in the composition of wards. So, I shall now examine whether Government have further power of revision ever the impugned orders. 9. The main points of contentions against the suggestions made by the Advocate General are these: (i) Revisional powers cannot be exercised again since such powers were already exercised. (ii) S.10 (3A) is the special provision dealing with revisional powers in regard to division of wards and hence other provisions for appeal and revision are not to be exercised in matters relating to division of wards. (iii) As the Government have already committed to the correctness of the refixation, it is only a futile attempt for the petitioners to try to get their grievances redressed through the Governmental interference. 10. The last point does not merit consideration as the same is only an expression of want of confidence in the Government. It has to be presumed that the powers conferred by the statute on authorities would be discharged bona fide and with seriousness. It cannot be presumed that such powers would be exercised in a mala fide manner. 11. 10. The last point does not merit consideration as the same is only an expression of want of confidence in the Government. It has to be presumed that the powers conferred by the statute on authorities would be discharged bona fide and with seriousness. It cannot be presumed that such powers would be exercised in a mala fide manner. 11. Counsel for the petitioners made reference to the decisions reported in Paul Averthan v. Sankaran Balakrishnan (1961 K.L.T. 728); Roop Chand v. State of Punjab (AIR 1963 S.C. 1503); Laxman v. State of Bombay (AIR 1964 S.C. 436); Venkateswara Rao v. Government of Andhra Pradesh (AIR 1966 S. C. 828) and Baldev Singh v. State of Himachal Pradesh (AIR 1987 S. C. 1239). These decisions were relied on to support the contention that the Government cannot exercise revisional powers for a second time, irrespective of the question whether the order was passed by an officer subordinate to the Government. Support was sought from the aforesaid decisions for the further contention that orders passed by the officers on delegation are really orders passed by the Government themselves. Those decisions would be of help only if the statutory provisions, the scope of which were considered in those decisions, are of similar words as used in the relevant provisions of the Act, which is germane for consideration in these original petitions. Learned Advocate General contended that the enlarged scope provided in S.143 (3) and also in S.144 (3) (i) (b) of the Act is of a singular or special type and hence no decision cited by the counsel would be of any help in interpreting such provisions. 12. The first sub-section of S.143 enables the Government to authorise "any authority, officer or person to exercise any of the powers vested in them". Such authorisation can also be made by the Government for exercising powers vested in the Director, Deputy Director, the Collector or any other Officer, except the powers to make rules. The only limitation appears to be that such authorisation should be to exercise powers in regard to any Panchayat or any class of Panchayats or of Panchayats "in any local area". The notification made in Ext. RI (g) cannot be held to be in infringement of S.143 (1) because, different local areas have been specified therein. Sub-s. (3) of S.143, being the most important provision for consideration, is extracted below: "143. The notification made in Ext. RI (g) cannot be held to be in infringement of S.143 (1) because, different local areas have been specified therein. Sub-s. (3) of S.143, being the most important provision for consideration, is extracted below: "143. Delegation of powers etc: (1) xxxx (2) xxxxx (3) The exercise of any power delegated under sub-s. (1) or sub-s. (2) shall be subject to such restrictions and conditions as may be prescribed or as may be specified in the notification, and also to control and revision by the delegating authority, or where such authority is the Government, by such persons as may be empowered by the Government in this behalf. The Government shall also have power to control and revise the acts or proceedings of any person so empowered". A reading of the said sub-section shows that widest possible scope ii provided to the Government to exercise powers at stages one after the other. S.10(3A) deals with the powers of revision. Such powers can be exercised by Officers authorised under S.143 (1). Even if the exercise of such power is for and on behalf of the Government, sub-s. (3) confers on the Government further power to control and revise the orders passed by the delegated authority. The special feature of sub-s. (3) is that the reserved revisional power could also be exercised through persons empowered by the Government in that behalf. The following words in the sub-section would indicate the special care which the legislature took in investing overall powers with the Government even in respect of orders passed by officers so empowered. "Government shall also have power to control and revise the acts or proceedings of any person so empowered". A closer scrutiny of the sub-section throws light on the aforesaid special features. The sub-section confers revisional powers on the Government at three different stages. (a) Revisional powers under S.10(34) to be exercised "at any time" and such powers can be exercised through officers authorised under sub-s. (1) of S.143. (b) The further revisional powers over the orders passed by such authorised officers. Of course, even those powers can be exercised through persons empowered by the Government in that behalf. (c) The overall revisional powers even in regard to orders passed by persons empowered by the Government to exercise revisional powers at or during the aforesaid second stage. (b) The further revisional powers over the orders passed by such authorised officers. Of course, even those powers can be exercised through persons empowered by the Government in that behalf. (c) The overall revisional powers even in regard to orders passed by persons empowered by the Government to exercise revisional powers at or during the aforesaid second stage. Rarely have I come across provisions which invested powers on Government which are meant for exercise repeatedly at different stages. Intention of the legislature that Government must possess such residual or additional or overall powers, looms large very much through the manner in which the words are employed in S.10 (3A) and S.143 (1) and (3). This is evidently because the matters to be attended to or the mistakes to be rectified, or the objections to be disposed of may be too many since the number of Panchayats exceeds even 1000. Sometimes, all such objections cannot conveniently be heard and decided by the Government themselves, and hence a delegation of powers may be necessary. The delegated authority may also pass such orders as would warrant rectification and Government would nave thought that Government must be armed with the powers to rectify such mistakes as well. These might quite probably have been the reasons which prompted the Government to seek such additional or super-revisory powers. In none of the decisions cited supra the scope of the revisional powers is not as wide as the relevant provisions in the Act and hence the ratio of those decisions is of no help in interpreting such provisions. 12A. The care with which the Governmental powers are delineated in the provisions indicates the legislative anxiety in safeguarding such powers in matters spread over to large areas. Even when amendments were made subsequently, no attempt is seen made to whittle down such powers, but on the contrary some endeavours have been made to confer still more powers on the Government. S.10 (3A) is the offshoot of that endeavour. S.144 (3) (i) (b) would provide further inherent support for the conclusion that the legislature very zealously reserved such powers for the Government. Sub-s. (3) of S 144 deals with the powers of the Government "to call for and examine the record of any order passed or proceedings recorded under the provisions of this Act" either suo motu or on application. Sub-s. (3) of S 144 deals with the powers of the Government "to call for and examine the record of any order passed or proceedings recorded under the provisions of this Act" either suo motu or on application. Such powers can be exercised in regard to the orders passed or proceedings recorded "by any officers or authority or person authorised by the Government under sub-s. (1) of S.143 or any officer empowered by them under that section". It is pertinent to note that S.144 follows S.143. The legislative purpose was to reinform that the power of the Government to call for and examine the record is in a way limitless, irrespective of the fact that the officer authorised or officer empowered either under sub-s. (1) or under sub-s. (3) of S.143 were also exercising revisional powers for and on behalf of the Government. 13. The decision reported in Maharashtra State Board of Secondary and Higher Education v. Paritosh Bhupeshkumar Sheth ((1984) 4 S.C.C. 27) is referred to by one learned counsel in support of his contention that S.143 (3) and 144 (3) are net intended to be exercised when a special provision is made for revisional powers in matters relating to the division of wards. It was by virtue of Act 19 of 1962 that the legislature inserted S. (3A) in S.10 of the Act. The said amending Act did not make any alteration in the general powers specified in S.143 or 144. It has also to be remembered that even when some of the sub-sections of S.10 were deleted by Act 6 of 1978, the legislature did not think it necessary to change the frame and structure of S.143 and 144. It cannot be assumed that insertion of sub-s. (3A) in S.10 was intended by the legislature to restrict or curtail the powers of the Government conferred by S.143 or 144. Had that been the intention, the legislature would certainly have availed of the opportunity at least when it passed Act 6 of 1978 to make necessary amendments. Therefore, I am not inclined to accept the contention of the counsel that S.10 (3A) must be treated as a special provision which ousts the jurisdiction created by S.143(3) and 144 (3) of the Act. 14. Therefore, I am not inclined to accept the contention of the counsel that S.10 (3A) must be treated as a special provision which ousts the jurisdiction created by S.143(3) and 144 (3) of the Act. 14. The upshot of the above discussion is that the Government have wide powers of revision even in regard to the orders passed by the Authorised Officers in exercise of S.10(3A) of the Act. 15. I, therefore, accept the suggestion made by the learned Advocate General that the Government be directed to consider all the relevant objections made in these original petitions for assailing the various orders passed by the Authorised Officers. The submission of the Advocate General that the Government have deputed the Commissioner and Secretary to the Government for Local Administration (Panchayat) of the Government of Kerala, to hear and dispose of all such objections, is recorded. Dates are indicated in the Annexures to this judgment for the aforesaid Commissioner and Secretary to hear the petitioners. Direction is hereby given to the petitioners to take notice that they would be heard by the said Commissioner and Secretary on such date as indicated against each original petition specified in the Annexures. The parties can be present either in person or through authorised representative. I make it clear that none of the petitioners shall be heard to complain that he is not aware of the date of hearing before the aforesaid Commissioner and Secretary. I also make it clear that if the aforesaid Commissioner and Secretary cannot attend office due to personal inconvenience on any of the days mentioned in the Annexures, he shall authorise the Additional or Deputy Secretary in his Department to act on his behalf on such dates. There is a direction to the Government to pass appropriate orders in exercise of the aforesaid revisional powers as expeditiously as possible in the manner suggested above. Original petitions are disposed of in the manner indicated above.