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Madhya Pradesh High Court · body

2012 DIGILAW 1047 (MP)

Saurabh Kumar Jain v. State of M. P.

2012-10-11

G.D.SAXENA, J.K.MAHESHWARI

body2012
ORDER Maheshwari, J. -- 1. This petition has been filed by the petitioner by way of Public Interest Litigation assailing the administrative order (Annexure P-1) dated 1.3.2012 passed by respondent No.2 whereby the powers have been assigned to the Deputy Collectors, Tahsildars/Naib Tahsildars and Revenue Inspectors of Gwalior District as per the schedule attached to the said order to function in their respective areas. By the said order the Deputy Collectors were also assigned the powers of Rent Controlling Authorities in Gwalior. 2. Learned counsel appearing on behalf of the petitioner has contended that as per aforesaid memo, the Deputy Collectors are directed to discharge the functions of Rent Controlling Authority, Gwalior by respondent No.2. It is his contention that the said appointment has not been made as per section 28 of M.P. Accommodation Control Act, 1961 (hereinafter referred to as the Act of 1961). Shri Jain submits that as per sub-section (1) the appointment of the Rent Controlling Authority has to be made by the Collector with the previous approval of State Government, who is not an Officer below the rank of Deputy Collector. As per sub-section (2) of the Act, the Collector of the District further conferred with the power to appoint one or more Rent Controlling Authorities in similar manner to assist the Rent Controlling Authority. In view of the foregoing, it is submitted that the power of Rent Controlling Authority assigned to the various Deputy Collectors by order Annexure P-1 passed by the Collector without previous approval of the State Government is not in conformity to law, therefore, they cannot be permitted to discharge the function as Rent Controlling Authorities. 3. Respondents by filing their return have averred that in the order impugned dated 1.3.2012, respondent No.2 has made the distribution of work amongst various Deputy Collectors and other revenue officers at Gwalior, and also assigned the power to discharge the function of Rent Controlling Authority, which cannot be found at fault, because it is in consonance with the power vested to respondent No.2 under section 28 of the Act of 1961. It is further contended that the previous sanction of the Law Department has already been taken, which is apparent from the document, Annexure R-1, dated 5.1.2005, whereby the Law Department has directed that any Deputy Collector may be appointed as Rent Controlling Authority but not by name and the approval of the State Government is not necessary. However, in view of the opinion of the Law Department, the appointment of the Rent Controlling Authority has rightly been ordered. It is also contended that as per the opinion given by the Law Department repeated approval of the State Government is not required to be obtained. Thus, the appointment of Rent Controlling Authority has rightly been directed by the Collector, Gwalior. It is further said that on account of pendency of number of cases and looking to the spirit of the Act of 1961 the case filed before the Rent Controlling Authorities by the person belonging to special category of landlord ought to have been decided as early as possible enabling them to provide speedy justice, therefore, also the action taken by the respondents vide order Annexure P-1 is in conformity to law. 4. After hearing the learned counsel for the parties and to appreciate the rival contentions, first of all, the provision as contained in section 28 of the Act of 1961 which deals the appointment of the Rent Controlling Authority is reproduced as thus : “28. Appointment of Rent Controlling Authority. -- (1) The Collector shall, with the previous approval of the State Government appoint an officer, not below the rank of Deputy Collector to be the Rent Controlling Authority for the area within his jurisdiction which this Act applies. (2) The Collector may, with the previous approval of the State Government, appoint, from amongst officers, not below the rank of a Deputy Collector, one or more Rent Controlling Authorities, as he deems fit to assist the Rent Controlling Authority appointed under sub-section (1).” Bare reading of the aforesaid section indicates that the Collector of the District has conferred with the power to appoint an Officers not below the rank of Deputy Collector as Rent Controlling Authority for the area within their jurisdiction to this Act applies, with the previous approval of the State Government as specified sub-section (1). Sub-section (2) further confers power to the Collector to appoint one or more Rent Controlling Authorities as it deem fit to assist the Rent Controlling Authority appointed under sub-section (1). In view of the aforesaid, it is clear that the appointment of the Rent Controlling Authority who may be made by the Collector in the District with the previous approval of the State Government. In sub-section (1) of section 28 of the Act, the word “shall” for taking previous approval has been specified. It emphasizes that the previous approval of the State Government by the Collector to appoint the Deputy Collector as Rent Controlling Authority within his district is mandatory. Impliedly, to validate the appointment of Rent Controlling Authority made by the Collector, previous approval of the State Government is compulsory. As per the language of sub-section (2) thereof, the Collector of the district has further conferred the discretion in the matter of appointment of one or more Rent Controlling Authorities but such appointments can be made with the previous approval of the State Government as specified in sub-section (1) of section 28. In that view of the matter, we are of the considered opinion that the appointment of Rent Controlling Authority or authorities can be made by the Collector, but with the previous approval of the State Government. In other words, if the appointment of the Rent Controlling Authority or authorities have been ordered without having previous approval of the State Government it cannot be said to be the valid appointment, and they cannot be permitted to discharge the functions of the Rent Controlling Authority. 5. In the present case, vide order Annexure P-1 dated 1.3.2012, the Collector District Gwalior while re-organizing the function of the Revenue Officers directed that the Deputy Collectors, Tahsildars/Naib Tahsildars and the Revenue Inspectors ought to discharge their functions with certain powers in a particular area of Gwalior District as specified in the list attached to Annexure P-1. By which the various Deputy Collectors have been assigned the work as Rent Controlling Authorities. By which the various Deputy Collectors have been assigned the work as Rent Controlling Authorities. By the said order, eight powers have been assigned to discharge the functions to the Deputy Collectors of the District Gwalior which are reproduced as under : ^^e-iz- Hkw&jktLo lafgrk] 1959 ,oa ‘kklu ds vU; vf/kfu;eksa@ fu;eksa@ funsZ’kksa@ ifji=ksa ds varxZr vuqfoHkkxh; vf/kdkjh ¼mi[kaM vf/kdkjh½ dks iznRr leLr ‘kfDr;ksa dk iz;ksxA 2- lwph vafdr vuqfoHkkxh; vf/kdkjh ds le{k n’kkZ, x, Fkkuk {ks=ksa ls lacaf/kr naM izfdz;k lafgrk vFkok vU; vf/kfu;eksa esa mfYyf[kr mi[kaM eftLVªsV@dk;Zikfyd eftLVªsV dh ‘kfDr;ksa dk iz;ksxA 3- vius&vius dk;Z {ks= esa utwy vf/kdkjh ds :i esa ‘kfDr;ksa dk iz;ksxA 4- ‘kklu dh leLr ;kstukvksa ds fdz;kUo;u ,oa vuqJo.k gsrq fofHkUu foHkkxksa ds vf/kdkfj;ksa ls leUo;A 5- e/; izns’k yksd ifjlj csn[kyh vf/kfu;e ds varxZr l{ke vf/kdkjhA 6- e/; izns’k yksd U;kl vf/kfu;e] 1955 dh /kkjk 34¼d½ ds varxZr iath;d dks ‘kfDr;k¡ iznRr dh tkrh gSa vr% mDr vf/kfu;e ds rgr iath;d ds :i esa leLr drZO;ksa dk fu”iknu djukA 7- LFkku fu;a=.k vf/kfu;e varxZr HkkM+k fu;a=d vf/kdkjh dh ‘kfDr;ksa dk iz;ksxA 8- v/kksgLrk{kjdrkZ }kjk le;≤ ij lkSais x, vU; dk;ZA** 6. As per the aforesaid, it is evident that the Deputy Collectors posted in various areas of District Gwalior, which are Gwalior, Lashkar, Jhansi Road, Morar, Gwalior Rural and Ghatigaon have been assigned the powers of Rent Controlling Authorities under the M.P. Accommodation Control Act, 1961. Thus, while conferring the power to function as Rent Controlling Authority, the previous approval of the State Government has not been obtained. In the matter of previous approval, it is stated in the return that the Law Department of the State Government gave an opinion that the repeated approval of the State Government is not necessary, and reliance has been placed on an order dated 5.1.2005 (Annexure R-1) passed by the State Government. In the matter of previous approval, it is stated in the return that the Law Department of the State Government gave an opinion that the repeated approval of the State Government is not necessary, and reliance has been placed on an order dated 5.1.2005 (Annexure R-1) passed by the State Government. To appreciate the language of the aforesaid order, which has been heavily relied upon by the respondents, it is required to be quoted herein, which reads as under : ^^e/; izns’k LFkku fu;a=.k vf/kfu;e] 1961 dh /kkjk 28 ds varxZr HkkM+k fu;a=.k vf/kdkjh dh fu;qfDr dyDVj }kjk dh tkrh gSA lkekU;r% ftyksa esa jkT; iz’kklfud lsok ds vf/kdkfj;ksa dks uketn HkkM+k fu;a=.k vf/kdkjh fu;qDr fd;k tkrk gS ftudk le;≤ ij LFkkukarj.k gksus ds dkj.k nwljs inkf/kdkjh dks fu;qDr djus dh izfdz;k dh tkrh gS] ftlds dkj.k izdj.k foyafcr gksrs gSaA 2- bl laca/k esa fof/k foHkkx ls ijke’kZ fd;k x;kA fof/k foHkkx }kjk bl laca/k esa fn;k x;k vfHker fuEukuqlkj gS % e/; izns’k LFkku fu;a=.k vf/kfu;e] 1961 dh /kkjk 28¼1½ dk voyksdu djus ij izdV gksrk gS fd HkkM+k fu;a=.k vf/kdkjh dh fu;qfDr ftyk/;{k }kjk ‘kklu ls iwoZ vuqeksnu izkIr dj ,sls vf/kdkfj;ksa esa dh tk ldrh gS tks ml ftyk/;{k ls uhps dh Js.kh dk ugha gksA mDr vf/kfu;e dh /kkjk 28¼1½ esa HkkM+k fu;a=.k vf/kdkjh dh fu;qfDr gsrq O;fDr’k% uke ls vf/klwpuk tkjh djus dh dksbZ fof/kd vko’;drk izrhr ugha gksrh] inuke ls fu;qfDr fd, tkus esa dksbZ fof/kd ck/kk gksuk ugha ik;k tkrkA 3- vr% Hkfo”; esa HkkM+k fu;a=.k vf/kdkjh dh fu;qfDr djrs le; fof/k foHkkx ds mijksDr vfHker ds vuqlkj inuke ls gh fu;qfDr dh tk,A** 7. On perusal of the language of the aforesaid, it is further evident that the law department has reiterated that the appointment of the Rent Controlling Authority may be made amongst the Deputy Collectors posted in the District by the Collector with the previous approval of the State Government. It is clarified that the appointment of the Rent Controlling Authority is not required to be made by name or as a persona designata. They may be appointed by post out of the Deputy Collectors posted within the district. Thus, it is clear that the law department has not opined that while appointing Deputy Collectors by the Collector of the District as Rent Controlling Authorities by post, the previous approval of the State Government is not necessary. They may be appointed by post out of the Deputy Collectors posted within the district. Thus, it is clear that the law department has not opined that while appointing Deputy Collectors by the Collector of the District as Rent Controlling Authorities by post, the previous approval of the State Government is not necessary. Even otherwise, the opinion of the law department cannot partake the nature of the Statute. 8. In view of the foregoing and on perusal of the order impugned Annexure P-1 dated 1.3.2012 passed by the Collector, District Gwalior assigning the powers to various Deputy Collectors to function as Rent Controlling Authorities has been passed without previous approval of the State Government. The defence taken in view of the document Annexure R-1 dated 5.1.2005 relying upon the opinion of the State Government is of no help to them. It can safely be observed that if the Statute provides something to be done in the manner, it ought to be done in the same manner and the opinion of the law department as referred, though not relevant as observed above, but even otherwise cannot wash out the requirement of law. It can further be observed that the order Annexure P-1 has been passed in lieu of distribution of work to the Deputy Collectors and other revenue officers wherein the power to discharge the functions as Rent Controlling Authorities has been assigned to as many as six Deputy Collectors. The aforesaid action does not satisfy the requirement of sub-section (1) and sub-section (2) of section 28 of the Act of 1961. Accordingly, we are of the view that the appointment of six Rent Controlling Authorities directed by the Collector by the order impugned Annexure P-1 within District Gwalior is not valid without previous approval of the State Government and henceforth they cannot be permitted to discharge the functions of Rent Controlling Authorities by virtue of the said order. The Collector, District Gwalior, is at liberty to appoint the Deputy Collectors as Rent Controlling Authorities as per the provisions of section 28 of the M.P. Accommodation Control Act, 1961. 9. The Collector, District Gwalior, is at liberty to appoint the Deputy Collectors as Rent Controlling Authorities as per the provisions of section 28 of the M.P. Accommodation Control Act, 1961. 9. In consequence to the aforesaid discussion, we are of the considered view that the order Annexure P-1 passed by respondent No.2 appointing various Rent Controlling Authorities within the District Gwalior without previous approval of the State Government is not in conformity to the provisions of M.P. Accommodation Control Act, 1961, therefore, quashed to such extent. Accordingly, this petition is allowed. It is hereby directed that respondent No.2 is at liberty to take recourse to law in the matter of appointment of Rent Controlling Authority as per provisions of section 28 of the Act of 1961. It is further required to be observed that by applying the principle of ‘De facto Doctrine’ the work performed by the Rent Controlling Authorities in furtherance to the order impugned Annexure P-1 shall not be invalidated. In the facts and circumstances of the case, parties to bear their own costs. 10. The Principal Registrar of this Court is directed to send the copy of this order to the Chief Secretary of Madhya Pradesh and also to the Principal Secretary, Housing and Environment Department, to ensure that appointment of the Rent Controlling Authorities in various Districts of the State of Madhya Pradesh shall be made as per provisions contained under section 28 of the M.P. Accommodation Control Act, 1961. It is also to be observed here that if the appointments have been made by the Collectors in their respective Districts without previous approval of the State Government, they shall not be allowed to function as Rent Controlling Authorities henceforth, validating the work already done by them. Now the approval be granted within a period of one month from the date of receipt of certified copy of this order and thereafter they may discharge their functions as Rent Controlling Authorities. Certified copy as per rules.