Hutatma Rajeshwarrao Wakde Gram ... vs Chief Officer, Municipal Council ...
2002 Latest Caselaw 233 Bom

JUDGMENT

N.V. Dabholkar, J.

1. This writ petition, under Article 227 of the Constitution of India, challenges the order passed on 30-9-2000 by the Additional Commissioner, Aurangabad, in the matter registered as No. 2000/MUN/REV/ P-t/9 before him, thereby rejecting the revision petition, filed by the present petitioner, under Section 318 of the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965 (for the sake of brevity, hereinafter, "the Municipalities Act").

While dismissing the revision petition, learned Additional Commissioner has not entered into any of the issues of controversy nor recorded any findings on merits. He has arrived at the conclusion that the powers under Section 318 of the Municipalities Act, which are ordinarily to be exercised by the State are not conferred upon him by proper delegation. In fact, he appears to be of the view that the Regional Director could not have re-delegated the powers in his favour, even though the State Government might have delegated such powers in favour of the Regional Directors.

2. The petitioner is the social institution and society registered under the Societies Registration Act, 1860. Comrade Vithalrao Naik is the President, who was also, at the material time, elected member of the State Legislative Assembly.

By resolution No. 92/A passed on 16-3-1999, the Municipal Council, Kalamnuri, unanimously resolved that the open site with the building thereon, should be transferred to the petitioner society, because the Municipal Council was unable to bear the expenses for maintenance and repairs of the same. The open site was donated to the Municipal Council by one Shri Dhondopant Burse, over which an auditorium was constructed from the funds provided by the President of petitioner society, under the local development programme.

Similar resolution No. 109/D was repeated by the Municipal Council on 6-7-1999 and open site along with structure and auditorium were transferred to the possession of the petitioner on 15-1-2000.

On 19-4-2000, Member of Legislative Council Smt. Rajanitai Satav, preferred a complaint to the respondent No. 2 Collector Hingoli, against the aforesaid resolution. Consequently, the Collector by his order dated 19-4-2000 was pleased to suspend the said resolution, purportedly without issuing any notice to the petitioner society or its office bearers, in exercise of his powers under Section 308 of the Municipalities Act.

This order of the Collector was challenged by the petitioner society in a revision under Section 318 of the Municipalities Act, which is dismissed by the Additional Commissioner, Aurangabad, by the impugned order.

3. Heard learned counsel for the respective parties.

Rule.

By mutual consent, Rule is made returnable forthwith.

4. The only issue that is required to be considered is whether the findings of the Additional Commissioner that he was not competent to exercise the revisional powers of the State Government as under Section 318 of the Municipalities Act is correct or requires to be interfered with.

On reference to Section 318 of the Municipalities Act, it can be seen that the State Government is the authority for the purpose of considering the legality, propriety and regularity of the orders passed by officers or the Municipal Council and proceedings before those authorities.

Shri Nirkhee, Advocate has taken me through the Section 74 of the Municipalities Act and more particularly, Sub-section (2), which according to him empowers the State Government to delegate its powers under Section 318 of the Municipalities Act. On reference to Sub-section (1) of Section 74, it can be seen that the State Government is empowered to appoint the Director of Municipal Administration, by notification in the Official Gazette and the jurisdiction of Director of Municipal Administration extends over the entire State. By virtue of the same provision, later half of the Sub-section (i), the State Government is also empowered to appoint, by a like notification; Regional Directors of Municipal Administration, competent to exercise jurisdiction over the area as may be specified by the State Government from time to time. Sub-section (1) of Section 74 does not refer to powers to delegate of the State Government. Sub-section (2) is required to be reproduced for ready reference, and the same reads as follows :

"(2). The Director, and the Collector of each district, shall exercise such powers and perform such duties as are conferred and imposed upon them by this Act or any rule made thereunder. The State Government may, by notification in the Official Gazette, direct that any power (except the power to make rules) or duty which by this Act or by any rule made thereunder is conferred or imposed upon it shall, in such circumstances and under such conditions, if any, as may be specified, be exercised or performed also by the Director or the Collector."

Sub-section can be divided into two parts. The portion not underlined in the quotation above is the first part by which the Director appointed by the State Government, in exercise of the said powers under Section 74(1) and the Collector of each district, by virtue of this part are empowered to exercise such powers and perform such duties as are conferred and imposed upon them by the Act or any Rules made thereunder. Thus for the Director and Collector of each district to exercise the powers conferred by the Act or the duties cast upon them by the Act, they need no support of any notification regarding the delegation of powers by the State Government. The powers conferred upon and duties imposed upon by the Act and Rules can be exercised by these two authorities straightway.

Later half of Sub-section (2) empowers the State Government to delegate its powers and duties which are conferred upon it by this Act or by any Rule made thereunder. On reference to this later half, it is evident that the section empowers the State Government to delegate powers only in favour of the Director or the Collector and the Sub-section (2), read in isolation, gives an impression that the Regional Directors or the Additional Collectors cannot exercise any of the powers conferred upon the State Government or duties imposed upon it by the Act and Rules, even by delegation.

However, consideration of the issue would remain incomplete, if Sub-section (3) is not taken into consideration, which reads as follows:

"(3) Each Regional Director, and each Assistant and Deputy Collector, shall within his respective jurisdiction be competent to exercise any of the powers and to perform any of the duties conferred and imposed upon, or delegated to, the Director and the Collector, respectively:

Provided that, the Director or, as the case may be, the Collector, may, subject to the general or special orders of the State Government reserve to himself such powers and duties as he may, by order, specify in this behalf."

It is evident from Sub-section (3) that the Regional Director and Assistant/Deputy Collectors can exercise powers and perform the duties within their respective jurisdiction. They are competent to do so so far as the powers conferred and duties imposed upon them. This has a reference to first part of Sub-section (2). The Director and Collector are to exercise the powers conferred and perform the duties imposed upon them by the Act and the Rules, without being required to be so empowered by any notification of the State Government. In the same manner, the Regional Director and Assistant/Deputy Collector, can exercise all the powers and perform all the duties conferred/imposed upon them by the Act and the Rules without any notification etc. regarding the empowerment/delegation. This is obviously because the powers are conferred and the duties are imposed by the Act itself or the Rules framed thereunder. On reading Sub-section (2) and Sub-section (3) together, it can be seen that for the purpose of exercising the powers conferred upon and the duties imposed upon by the Act or the Rules, the Director, includes the Regional Director and the Collector includes assistant/Deputy Collector.

It is pertinent to note that Sub-section (3) does not restrict itself only to the extent of powers/duties conferred/imposed upon by the Act and the Rules, but it also makes a reference to the powers/duties delegated to the Director and the Collector respectively. This has relation to the later half of the Sub-section (2) reproduced and discussed earlier. On reading later half of Sub-section (2) together with Sub-section (3) and more particularly, the portion relating to the powers/duties delegated to the Director and Collector respectively, it can be seen that as soon as the State Government by notification in the Official Gazette delegates its powers/duties upon the Director or Collector, Sub-section (3) enables the Regional Director and Assistant/Deputy Collector to exercise those powers. On reading Sub-sections (2) and (3) together, it is felt that neither any notification regarding re-delegation by the Director in favour of the Regional Director or the Collector in favour of Assistant/Deputy Collector is necessary for the purpose nor it requires any office order from the first authority in favour of the later.

Such exercise of the powers delegated upon the Director/Collector by the State Government can be limited by the Director or the Collector by virtue of proviso to Sub-section (3) by passing the orders, subject to general or special orders of the State Government, reserving such powers unto itself. Only when some of the powers/duties delegated upon the Director/Collector are so reserved by the Director/Collector, the Regional Director, Assistant Deputy Collector shall be prevented from exercising such powers and performing such duties. Unless there are orders, declaring such reservation, passed by the Director or Collector, the Regional Directors and Assistant/Deputy Collectors shall not be divested of the powers which are delegated upon the Director/Collector by the State Government, by a notification in the Official Gazette, in exercise of the powers conferred upon the State Government by Section 74(2) of the Municipalities Act.

As can be seen from the impugned order, there is a notification issued by the Urban Development Department dated 4-6-1976 by which it has delegated to the Director of Municipal Administration, the powers under Section 318 of the Municipalities Act, which are ordinarily to be exercised by the State Government.

5. So far as the present case is concerned, all the lawyers unanimously submitted that the Additional Commissioner, by virtue of notification dated 22-7-1976 is Additional Regional Director of Municipal Administration for their respective divisions, but he is not the Regional Director. As can be seen from Sub-sections (2) and (3) together, the State is empowered to delegate its powers in favour of the Director or the Collector. By virtue of Sub-section (3) the powers of Director and Collector can be automatically exercised by the Regional Director and Assistant/Deputy Collector. However, in both of these provisions, there is nothing to indicate that either the State Government by a notification can delegate its powers in favour of the Additional Regional Directors or the Director/Regional Director can do so, by any office orders.

6. To sum up, the powers of the State Government under the Municipalities Act can be exercised by the State Government itself. The State is empowered to delegate those in favour of the Director/Collector. There is no power to delegate in favour of the Regional director/Assistant/Deputy Collector, but once the powers are delegated in favour of the Director/Collector, by virtue of Sub-section (3) the Regional Director and Assistant/Deputy Collectors can exercise those powers.

7. On reference to the impugned order, it can be seen that by virtue of the Government Resolution dated 22-7-1996 issued by the Urban Development Department and Public Health Department, the Additional Commissioners of the division were appointed to be the Additional Regional Directors of the Municipal Administration for their respective divisions. In fact, the issue would have arisen for a consideration, whether the powers which can be exercised by the Regional Director of Municipal Administration, can also be exercised by the Additional Regional Directors. However, in view of the peculiar facts and circumstances in the matter, which are on record in the impugned judgment itself, this aspect is not required to be entered into. In the further part of the judgment the learned Additional Commissioner has referred to the notification of the Government No. 54/875/CR./196/79-UD-9 dated 18-10-1980. This notification in the fact is a corrigendum to the notification dated 22-7-1976, by which all Additional Commissioners were appointed as Additional Regional Directors of the Municipal Administration for their respective divisions. The effect of subsequent notification is substitution of words "Regional Directors of Municipal Administration" in place of the words "Additional Regional Directors of Municipal Administration". Thus, by corrigendum issued in the form of notification dated 18-10-1980, now all Additional Commissioners of respective revenue divisions are appointed as Regional Directors for the respective revenue divisions. In Section 74(1) of Municipalities Act there is nothing to suggest that more than one Regional Directors cannot be appointed in one region. A reference to their original designation under the Maharashtra Land Revenue Code i.e. Commissioner or the Additional Commissioner etc. is only in order to indicate that it is an ex-officio appointment and not an appointment persona designata.

In the further part of the judgment, the learned Additional Commissioner has referred to a Government letter dated 18-2-1982 from the file of the department. The letter had pointed out that by Government notification dated 4-6-1976, powers of the Government under Section 318 of the Municipalities Act were delegated to the Director of Municipal Administration and the Director, in turn, had re-delegated the powers to the Commissioner and the Regional Director of Municipal Administration, vide his order No. DME-1076/11 dated 4-6-1976. No doubt, the powers delegated ordinarily cannot be re-delegated by the authority. However, as already discussed hereinabove, re-delegation in favour of the Regional Directors by the Director of the powers which are delegated to him by the State Government under Section 74(2) of the Municipalities Act, is not necessary, in view of Section 74(3). The Regional Directors stand empowered to exercise the powers delegated by the State in favour of the Director, by virtue of statutory provisions contained in Sub-section (3) unless some of such powers are withheld by the Director by a specific order as provided in the proviso to Sub-section (3). The learned Additional Commissioner, in fact, the Regional Director of Municipal Administration; has not referred to any such notification, order or letter, by which the Director of Municipal Administration had reserved any of the powers, delegated in his favour by the State Government.

8. Therefore, it must be said that the learned Additional Commissioner, at the material time, by virtue of Government notification dated 22-7-1976 read with corrigendum dated 18-10-1980 was the Regional Director of Municipal Administration and competent to exercise the powers under Section 318 of the Municipalities Act, in view of the delegation of those powers by the Government in favour of the Director, by notification dated 4-6-1976 and Section 74(3).

The interpretation that he is required to exercise the powers delegated to the Director, and further re-delegated by the Director by the letter dated 4-6-1996 is, therefore, to some extent erroneous. Such a re-delegation is not necessary and Regional Directors can exercise such powers even in absence of the order No. DME/1076/11 dated 4-6-1976, referred to in the impugned order.

9. The order of the Additional Commissioner, dismissing the revision petition on the sole ground that he has no jurisdiction (because he is not properly empowered) to entertain the same, therefore, requires to be and is accordingly quashed and set aside.

The matter is remanded back and the Additional Commissioner, who in fact is the Regional Director of Municipal Administration of his revenue division, is directed to decide the revision petition, after hearing all the parties on merits.

10. Rule is made absolute accordingly. In the circumstances, no order as to costs.