Shtenf Utlar l'radtth

Lasf.mi !cl F•clory

Sark•r J,

I9Ct

Feirlmr;• i'.

70 SUPREME COURT REPORTS [1962] SUPP.

its award.

A rule duly framed under the Act requiring the Tribunal to pronounce its decision in open court is therefore not in conflict with s. H.

The result is that these appeals fail and are dismissed with costs.

Appeals di.smis.ed.

RA:IIA KRISHNA RAMANA'J'H

THE .JANPAD SABHA, GONDIA

(B. P. 81'.l'HA, C .. T., K. Sr:BBA R..i.o, ~. RA.JAGOPAT.A

An'ANGAP., .J. R. Mr:DHOLKAR and T. L.

VENKATARAMA AYYAR, J.J.)

!Jegilative /)nuer-'1 1errninal Tax-[n1pru1ition by Dist.rirt Counr.il under Proi:i11cirzl Strif?t!r:-Con.'ltitution .4ct Placing ta:r in }'etl".ral Legis{afit'e List-i'Jciring 7)rrn:ision-Po1l'er of l)ro1; ncin.l legislatur~ to continue ta:r-C.l'. and lferar local Self Uot'unw:nt Act, 1920 (C. P. 4 of 1920)-C.P. aud llerar

J.oco! IJ01, ernm.ent Act, 1948 (C.P . .18 of l.?48). s. /!12-C.l'. and Bmn f, oca.l G'o; mzment (Amendmwr) Act, 1.?49 (':.P. 32 nf /!149)--G'overnment of India Act, 104J (.1G <Im. 5 CJ" 2. ),

8. J.13 (2).

Cnder the C. P. and Berar Local Self Government Act 1920, the District Council of Bhandara. in 1925, imposed a te<minal tax on the export of bidis and birli lea\-cs by rail out of Rhandara district. By the Govrrnrnent of India Act, 1q35, ter1ninal tax '"'as included in the Federal Legislati\•e List but s. 143 (2) of the Act prO\idecl that such a tax which was being la\vfully levied under a la\\' in force on January I, 1935, n1ay continue to he levied until provision to the c0ntrary was macic hy the Federal l.cgilature.. 1he District Council continued to leavy and collect thr: tax. In 1948 the C P. an<l Berar Local Government Act, 1948, can1e into force which repealed the 1920 Act.

It replaced the District Council, Bhandara, with three Janapada Sabhas. Clause (c} of the proviso ti> the saving section s. 192 provided that aH rates, taxes an<l cessr.s due to the District Council sh~II be

deu1ed lo be due to the Sabha to whose ar<a they pert'ltl\Cq.

By an amending Act of 1949 the Provincial Legislature replaced cl. (b) of the proviso to s. 192 by a new cl. (b) which, inter alia, continued in force all taxes which were in force immediately before the commencement of the 1948 Act, this amendment was given retrospective effect from the commencement of 1948 Act. The appellant contended that the 1948 Act which repealed the 1920 Act did not save the terminal tax, and once the tax was discontinued the Provincial Legislature had no power left to impose it afresh and that the amendment was accordingly beyond its legislative competence.

The respondent contended that s. 143 (2) of the Government of India Act, 1935, vested in the Provincial Legislature plenary power to legislate in respect of every tax which was being lawfully levied in the province, that cl.

(c) of the proviso to s. 192 of the 1948 Act saved the tax and that the amendment was validly made and it saved the tax with retrospective effect from the date of the repeal of the 1920 Act.

Held, that the terminal tax was validly continued by the retrospective amendment of cl. (b) to the proviso of s. 192 of

1948 Act. Section 143 (2) of the Government of India Act, 1935, did not confer upon the Provincial Legislature any plenary power of legislation in respect of taxes which were being validly imposed. But it did confer upon the Provincial Legislature a limited leislative power to enact a law with reference to the tax levy so as to continue it. The power of the Provincial Legislature to repeal the 1920 Act which imposed the tax was co-extensive with its power to enact such a law.

In exercise of this limited legislative power the Provincial I ... egislature wa~ competent to enact the Amending Act of 1949.

Attorney-General for Ontario v. Attorney-General for the Bominion, [1896] A.C. 348, referred to. .

Clause (c) of the proviso to s. 192 of the 1948 Act did not save the future imposition of the tax; it merely provided for the collection of taxes already accrued in favour of the District Councils by the successor Sabhas. The words in this clause "due to the District Council'' referred only to taxes which had accrued on the date of the repeal of the 1920 Act and did not include taxes which accrued later and became payable subsequent to that date. The subsequent amendment of 1949 could not be taken into account in construing cl. (c) and for determining the intention of the legislature.

Crvrr. APPELLATE JuRISDIC'l'ION: Civil Appeal~ Nos. 188 to 191of1956,

• f ' • '

Rama Krishna

Ramanath v.

The J anpad Sabha,

Gondid

Ra:na Krishna

Rama,, oth

\" Tilt Janpd Sabha,

Gor.dia

~1)a:itgar ./.

72 SUPREM.E COURT REPC1RTS [1962] SUPP.

Appeals from that judgment and decree dated April 13, l!l5!i, of th" former "Xagpur High Court in Civil Suits Nos. :i, 1, fl and 10 of l!J:i5 (Original Nos. :u.c.c. 194, 195, 2no and 202 of I9!il).·

Al. C, Sehl1.'£td, AtwrneyGeneral for India,

A. V.

Vis1i~1nathri Sastri, .J. V. , fokatdar and /. N.

Shroff, for the appellant (in C. A. No. 188 of 56).

H. N. S11nynl, .Additional Solicitm General of lnditJ, and G. C. Afrithur, for tho respondent(in C. A. No. 188 of 56) . .! . .V. .Takritd'1r ancl l. N. Shroff, for the appellants (in C. As. os. 189 to 191 of :i6).

S. T. Desai and G. C. Mathur, for the respondent (in C. A. No. 190 of liG).

G. C. Mathur, for the respondent (in C. As. l\ os. 180 and 191 of :jG).

19G2. February 7. The .Judgment of the Court was delivered by A YYANGAR, J. -Section 143(2) of the Government of India Act, IH35 enacted.

"143(2). Any taxes, duties, cesses or fees which, immc, diately before the commencement of Part HI of this Act, were being lawfully }o\'icd by any Provincinl Governmenf, municipality or other !or.al authority or body for the purposes of tho Province, municipality, dialrict. or 0thcr local area under a law i11 force on th!' first <lay of .January, 11inetee11 hundrerl rincl thirt.y-five, may, notwithstanding that. those taxes, duties, cesHes or fee~ ae mcntionecl in the Federal Legislative List, continue to be levied and to be applied to the same purposes until provision to the contrary is maclo by the Federal Legi:-l:iture."

The precise import, significance ai1<l effect of tq~

words "continue to be levied and 'to be applied to the same purposes until provision to the contrary is made by the Federal Legislature" is the common question which arises in these four appeals which come before us by virtue of certificates under Art. 132 of the Constitution granted by the High

Court of Madhya Pradesh at Nagpur.

Section 51 of the Central Provinces and Bcrar Local Self Government Act, 1920 enacted :

"51. (l)· Subject to the provisions of any law or enactment for the time being i'n force a District Council may, by a resolution passed by a majority of not less than two. thirds of the members present at a special meeting convened for the purpose, impose any tax, toll or rate other than those specified in sections 24, 48, 49, and 50.

(2) ................................................... .

(3) ................................................ " By virtue of the power thus conferred the District Council of Bhandara which was "a local authority"

constituted under this Act of 1920 imposed a tax on the export of bidis and bidi-leaves by rail out of the Bhandara district by a resolution dated May 14, 1925, as amended by another dated April 18, 1926.

The tax was at the rate of 4 annas per maund on bidis and 2 annas per maund on bidi leaves. The Local Government framed rules for the collection of the tax under s. 79 of the Act of 1920, and the said tax was being collected by this local authority on April l, 19:!7, when Part III of the Government of India Act came into force. It is now common ground that the tax thus levied and collected was "a terminal tax on goods carried by railway" covered by entry 58 in the Federal Legislative List-List I-in the Seventh Schedule to the Government of India Act of 1935. The result of this tax being in the Federal Legislative List, jt js anifest~ is that tqe ]>rovincial Leislatur(J

Rama Kri.shna

Ramanath v.

The J anpad Sabha,

Gandia

Ayyangar J.

Rama Krishna

Rama11ath

Y. ?'he Ja11paJ Sabf.a,

Gondi:J

SUPREME COURT REPORTS (1962] SUPP.

could not thereafter freshly impose such a tax under its legislativo power.

By reason of the pro vision however of s. 143 (2) of the Government of India Act, 1935, extracted Parlier, the local authority continued to retain the authority to levy and collect the 8aid tax and tho tax continued to be collected by the District Council even after April I,

HJ37 when Part III of the Government of India Act came into force.

While so, the Central Provinces :ind Berar Local Self Government Act, 1920, was repealed and was replaced by tho Central Provinces and Berar Local Government Act, 1948, which came into force on June 11, 1948. District CouncilH which were the units of local government a<lminiHtration under the Act of I 920 were replaeecl by .Janpr1ds which comprised smaller areas and as a result the an•a which was under the jurisdiction of the District Council of Bhandara under the Local Self Government A<t of 1920, came to be constituted into three .Janpads, viz., those of Gondia, Bhandara and S; Lkoli-these being the three Tahsils comprised in the district and tho thrco Janpa<ls were adminiRtered h~· three .Janpad

abhas former! under the Ad of .1 !)48.

There were provisions in the later cna<tment providing for continuity in the powers to be exercised by the

Di.trict Couneils whom the former replaced. But what is of relevance to the points arisin~ in thn

present appeals arc those containl'd ins. 192 of the Act of l!l48 which, as originally enacted, ran :

"On and from dte on which this Act comes into force, the Centrnl ProYinceH and Rerar Local Self GoYcinmP11t. Act, 1920, shall be rt'pealcd :

Provided that--

(a) all local authorities constituted under the said Act shall continue to function there 4nder for such ti!lle till the constitution of . . . . .

the Sabhas as the Provincial Government may, by notification, specify;

(b) all rules and byelaws made, all notifications published, all orders issued and all licences and permissions granted under the said Act and in force immediately before the commencement . of this Act shall, so far as they are consistent with this Act, be deemed to have been respectively made, published, issued and granted thereunder;

( c) all rates, taxes and cesses due to the district Council or Local Board shall be deemed to be due to the Sabha to whose area they pertain; and

(d) all references made in any Act of the Provincial Legislature to the said Act shall be read as if made to this Act or to the corresponding provision thereof."

Pausing here, two matters which figured largely in the arguments require to be notieed in the provi sions of this section. The first is that there was an exprcs,; repeal of the Loc11l Self Government Act of 1920 effected by the main part of the section.

Th~ second is that the repeal was not absolute and unconditional but was modified by a saving which continued the operation of certain of the provisions of the repealed Act. But the terms in which the 1ight to collect the rates, taxes and cesses was continued in favour of the Janpad Sabhas which replaced the District Councils under cl. (c) was capable of being construed as not enabling the future imposition of the rate, cess etc, by the , Janpad i'abhas. The scope and mPaning of this clause which is one of the principal matters to be considered in these appeals we shall reserve for later consideration but at this stage it might be mentioned that the clause is certainly capable of bein$ understoocj as tranaferrin~ to the Sabhas onlr

1962 - Rama Kria/ma

Ramanath v.

The Janpad Sabha,

Gondia

Ayyangar J.

1~62

Rama Krishna

Ramonatll

v. Tiu Janpad Sabha, Gmidi4

AyyangarJ.

SUPREME COURT REPORTS [1962] SOPP.

the right to collect the rntes, tiixes or ceases which had accrued due to the District Councils which had remained unpaid on the date when by virtue of the first part of s. 192 the Act of 1920 stood repealed and the District Councils ceased to exist. If this were the propPr meaning of this clause it is obvious that the .Tanparl Sa bhas could no longer levy the terminal tax on bidis and bidi-lcaves where the export was effected on or after June 11, 1948, on which date by virtue of the Act of 1948, coming into force tho earlier Act of 1920, stood repealed.

The Janpad Sabbas wert>, however, continuing the levy and the Provincial Legislature sought to put the matter beyond doubt by an amending Act of 1949 by which cl. (b) of the proviso to s. Hl2 was replaced by a new clause reading :

"All rules and byclaws and orders made, notifications and notices issued, licences and pcrmiti:i granted, taxes imposed or assessed, cc88cs (other than additional cesses imposed in accordance with section 49 of the said Act), fees, tolls or rates levied, contracts entered int-0 and suits instituted and proceedings taken under the said Act and in force immediately before the commencement of this Act shall continue to be in force and in so for as they n.re not inconsistent with thiR Act, they shall ho deome<l to have bee11 respectively made, issued, granted, imposed or aHscose<l, levied, entered into, instituted and taken under this Act until new provisions are made under the appropriate provisions of this Act."

and bys. 39 cf the Amending Act this amendment was given retrospective effect from I.he commencement of the LoP-al Government Act of 19l8. It was not in dispute that if the terms of cl. (bl as amended • by the Act of I94!l bad found n. place in the Local Government Act of 1948 when originally enacted,

he levr of this tax: br the J&npad Sabh¥ woul<l

38.d.R. siJPR:EM:E coti:kr RE:Po:Rifs 77

have been valid. It is only necessary to add that if this tax had been lawfully levied by the Janpad Sabhas immediately before January '.l6, 1950, they could continue to be levied after Constitution came into force nothwithstanding the repeal of the Government of India Act by the Constitution and notwithstanding terminal taxes being a tax solely leviable by the Union List in Sch. VII) by reason of the provision containrd in Art. 277 of the Constitution reading :

"277. Any taxes, duties, cesses or fees which, immediately before the commencement of this Constitution, were being lawfully levied by the Government of ?UY State or by any municipality or , other local authority or body for the purposes of the State, municipality, district or other local area may, notwithstanding that those taxes, duties, ceases or fees are mentioned in the Union List, continue to be levied and to be appliecl to the same purposes until provision to the contrary is made by Parliament by law." It would thus be seen that in order to sustain the claim of the respective Janpad Sabhas who are the respondents in these four appeals to continue to lawfully levy the terminal tax it should be established either that cl. (c) to the proviso to s. 192 enabled them to do so or that the amendment effected to proviso (b) to s. 192 of the Act of 1948 was validly enacted. Before considering this question it would be of advantage if we set out the facts of the cases under appeal. It is sufficient to ref.Jr to the facts in Civil Appeal 188 of J 956 because, except for the identity of the appellants and the amounts involved, the matter in controversy is exactly similar, Rama Krishna Ramanath-appellant in Civil AppPal 188 is a proprietary concern carrying on business, inwr alia., in manufacturing and selling bidis. In the

Rama K1ishna

Ramaiiath

•• Tkt J anpad Sabha,

Gondia

A7yangarJ.

J !Jli2

Uania K1iJhna

Ra111a11ath

Tl; t .lm1pad Sabh1,

Gnndia

-1.>'1011gar J.

~~ SUPREME COVRT REPOR'l's [l!i62] SUPP.

course of that business they export bid is to various places outside the territo1 ial limits of the , Janpad Sabha, Gondia.

The .Jar1p:id abha, Gondia demanded and collected taxes whrn th<' c'xport took place' from railway stations within its territorial jurisdirtion. Botwi:en January 2ti, 1950, and , Juno 30, I 95:!, the respoudrnt 8abha had collected tax totalling Rs. 3,81S!l5/3, the appellant concern contending that from the date of the coming into force of the Constitution the imposition and collection of the terminal tax by the respondent Sabha was illegal, because the right to levy terminal taxes was vested exclusively in the government. of the Union under entrv 89 in the l?irst List to the 7th Schedule to the Constitution and sought tho refund of this sum of tax from the respondent Sabha and also required that it should desist from continuing the imposition and leTy of this tax, and when the request was not needed, served not.ice on the Sabha.

In consequence of this notice though the Sabha discontinued the collection of the tax, it refused to refund the tax already collected.

Thereupon the appellant instituti>d a civil suit in the court of the Civil , Judge at Gondia pr..aying for a decree for the sum of l:ts. :~.818; 15/3 and costs.

The suit was resisted and thereafter this alongwith several similar suits ineluding three by the appellants in the other three appeals were all withdrawn to the High Court undor Art. '228 of the Constitution for deciding the substantial question of law as to the interpretation of the Constitution and of tho Government of India Act as to whether the levy of the tax by the respondent Sabha was lawful or not.

These suits were consolidated and were disposed of by a common judgment dated April la, 1955, by which all the suits were dismissed but a certific,1t.c was granted under Art. 132 of the Constitution.

On the strength of tho certificate four of the agi,; rieved plaintiffs filed appeals to tho Courts and that is how the matter is before us.

Before considering the submissions made to us by the learned Attorney-General for the appellant it would be convenient to state the exact factual position relating to the levy of the impugned tax :

(1) The tax being one on goods exported out of the local area by rail would answer the description of a terminal tax falling within the exclusive iurisdiction of the Central Legislature under the Government of India Act, 1935. The position has continued to be the same under the distribution of legislative power in relation to taxes under the Constitution. The result would, therefore, be that but for the saving contained in s. 143(2) of the Government of India Act, 1935 it would not have been legally competent for the local authority . to continue to levy the tax after the Government of India Act came into force ; similarly but for Art. 277 that levy could not have been continued beyond January 26, 1950. On the facts stated earlier it would be seen that the right of the local authority to levy the tax would be ultimately dependent on the same being authorised by s. 149(2) of the Government of India Act.

(2) The tax that was sought to be levied by the respondent-Sabhas and which was challenged as unauthorised and illegal was identical in the incidence as the tax which the District Council of Bhandara lawfully levied just prior to the commencement of Part III of the Go; vernment of India Act, 1935. By incidence we mean the subjectmatter of the tax, the taxable event as well as the rate of the duty. In other words, the tax now sought to be levied and that which was lawfully imposed 1md collected prior to April 1, 1937 were exactly identical in their effect and operation.

Similarly there was no controversy as regards either the identity of the area in aid of .whose local administration the tax was now sought to be collected, nor as regards the purposes for which they

196Z

Ramo Kri•hna

Raman, th

v. rhe J anpad s ablia,

Gondia

Ayya11gar J.

I9C2

Rama K, i1hna

Ramtlflath

•• The J anpad Sabha,

Gomlia

AyY1ngar J,

SUPREME COURT REPORTS [1962) SUPP.

were utilised as compared with what prevailed on April I, 1937.

The principal contention however, raised on behalf of the appellant before the High Court was based upon a denial of the identity of the authorities-three .Janpad Sabhas with the District Council, Bhandara which levied and collected the tax\.prior to April l, 1937.

The learned Judges of the High Court rejected I.his contention and held that tho throe Jan pad Sa bhas which replaced the District Council of Bhandara were in subHtance identical with the latter principally for the reason that the aroa covered by the three newly created Janpads was the same as that for which the District Council functioned and that the purposes for which the tax collected would be utilized which arc the criteria specified in s. 143(2)-werc exactlv the same, Just as it could not be disputed "that if there were any ehango in the composition of the District Council the identity of a. local authority would not be altered for the purposes of s. 14:l(2}, tile mere splitting up of that local area for being administered by a plurality of Local Government Units would not effect any change mau, rial for the purposes of the continued exigibility of the tax under s. 143(2). The learned Attorney-General therefore very properly did not press before us this point based upon the disappearance of the District Council and its being replaced by the respondent-Sabhas as any ground for denying to tho respondent-Sabhas the right to levy the tax.

The only point that was urged before UB in challenge of the right of the respondent-Sabhas to continue the levy of this terminal tax may be formulatecl thus: The Prov incia.l Legislature of Central Provinces & Berar in exercise of it~ legislative power under item 13 of the Provincial Legislative List enacted the Local Government Act,

1948 and validly repealed the Act of 1920 under which this tax was levied. As part of the same legislation and taking effect at the same time it was open to that Legislature to have continued the provisions of the repealed Act of 1920 under which the impugned tax was levied so as to enable the newly created Janpad Sabhas to exercise the fiscal powers of the District Councils which they . replaced, thus so to speak modifying or qualifying the repeal. Such a continuance could be provided by a saving clause couched in appropriate phraseology to effectuate such an intention. If this had been done the source of legal authority to levy the tax would, even after the Act of 1948 came into force, have been the repealed Act of 1920 which to the extent of the saving would be deemed to have continued in force.

But tl)is was not done.

There was, no doubt, a saving under the proviso to s. 192 )Jut the saving in respect of the taxes which was contained in sub-cl. ( c) to the proviso was confined to the recovery of taxes which had accrued due on the date of the repeal but which still remained uncollected and the purpose of the sub-clause was to effect a distribution of those assets, viz., of the accrued arrears among the several Jan pad Sabhas which replaced each District Council, so that when on June 11, 1948, the Act of 1948 came into force, the effect of it was that the repeal of the Act of 1!120 was for all purposes relevant to the matter now in controversy complete and with it the power to levy the tax in future stood extinguished, save only as regards the right to collect the arrears which had accrued due to the District Councils before that date. No doubt, the Provincial Legislature effected an amendment to s. 192 in 1949 py which the saving was extended to include the right of the Jan pad Sabhas to continue to levy the impugned tax and this amendment was given retrospective effect as from June 11, 1948, but

196!

Rama Krishna Ramanath

The Janpad Sabha, Gondia

A11'1/on(Jar J.

Rama K1ishna

Ramanalh

The Janpad Sabha,

Gandia

A.yyanuar J.

8:! SUPREME COURT REPORTS [1962) SUPP.

this amendment was beyond the legislative com

petence of the Provincial Lagislature since in pith and substance it was virtually a legisla\ion ex pressly conferring upon the Jan pad Rabhns H~ right to levy 11. t{lrminal tax-a right which thnv did not possess b., fore that date and unless the Lcgis lature was competent to enact a law in relation to such a tax it could not vnlidly confer upon the local. authority whnt in legal effect should he considered to be a fresh right to levy the tax.

The argument wa.s also preonted in a slightly diff crcnt form by snying that on the terms of s. 143(2) of the Government of India Act thcro was a provision only for tho r.ontimiance of the tax and that when once that continuitv was broken by a v1ili1! piccr. of legislation finch as took place in this ci>se when the Local flelf Con>rnment Act I !l20 wcs repealrd without a prnperly draftPd saving clause enabling the continiH'd levy of the tax, tho disccmtinnity created thereby crmld nrJt thereafter be repnired and the gap filled by further legislation even though it purported to be with rcstrospccti ,.e effect.

Mr. 811.nval-karned Additionnl Solieitor- General who appeared for the respondent.-Sabhas submitted several nnswors to suHWJ.in the valirlity of the continued imposition of tho tnx. He first urgod th:1t the effect of s. 14:l(2) of the Government. of India Act, I !l:-15 was in effect to vest in Provincial Legislat.urns IL plennry power to legis lat" in rospect of every tax which was being 111.w fully levied by locnl authorities etr:. in thn Provine!'

prior to the commencement of Part ITT of the GoTernmont of India Act sn much so thctt even if tho amendment cf!'ected to s. lv2 hy the Local Government (Amendment) Act of 1949 be !rented as itself a fresh imposition of tho tax its validity could not be challenged.

We must express our inability to accept thiH extreme conkntio11.

Section 143 (:!) which is a saving clause nnd

obviously designed to prevent a dislocation of the finances of Local Governments and of local authorities by reason of the coming in to force of the provisions of the Government of India Act distributing heads of taxation on Jines different from those which prevailed before that date, cannot be construed as one conferring a. plenary power to legislate on those topics till such time as the Central Legislature intervened. Such a -construction would necessarily involve a power in the Provincial Legishture to enhance the rates of taxation-a result we Il\UBt say from which Mr. Sanyal did not shrink, but having regard to the language of the section providing for a mere continuity and its manifest purpose this construction must bfl rejected.

The next point urged by Mr. Sanyal was based on the construction which he sought to put on cl.( c) of the proviso to s. 192 of the Local Government Act of J 948.

He submitted that the words "due to the District Council" were wide and apt enough to include not merely the taxes that had accrued due on_ the date of the repeal of the Act of 1920 but even the amounts which accrued later and becanie payable subsequent to that date-"Due" he said meant "payable" and as the words of the sub-section did not specifically limit the period when the cess became payable to some time anterior to the repeal of the Act of 1920, it ought to be read as including those amounts which accrued due and became payable even thereafter. We find it difficult to accept this submiseion either. The difficulty in accepting it is created only in part by the use of the expression "due" but the main hurdle in the way of the respondent is that what is saved by the sub-clause (and is distributed among the Janpad Sabhas which replaced the District Councils), is specified as a cess, rate etc. du(' to a District Council.

The rate, cess or duty due to a District Council could obviously be only that which

196!

Rama K'l'ishna

Ramanath v.

The Janpad Sabha,

Gondia

Ayyangar J.

196Z

Rama K tishna

Rama11al-h

" Tht J an}Md Sabha,

Urmdia

Ayyangar J.

84 SCPREl\IE CO"CRT REPORTS [I 06~] SUPP.

had accurcd due to a District Council while that bodv waA in existeno<> and "it h the extinct i"n of the Ditrict Councils by the rcpc; Ll of thP Act of

l!'l20 there could b,, no question ofony further sums being clue to such a body. :\Ir. Sanyal howe>er 8ought to got over this situati:m by suggr, ting that the words "due to a District Council" were merelv descriptivr' of the nature of the tax and did not pre dioatc that it was an amount due to a part.icular body on the d1tte when it became due.

In our opinion this is not an interpretation which the words could reasornihl.v bear and we have, therefore, no hesitation in rejecting this argumrnt.

It waA then submitt.ed that e\en if the words of cl. (c) of the rwoviso would not or<linarily include n saving as regards the right of the Ja11pad Sahhas to levy the tax in tho future, still we should adopt that constrnotion as hPing in conS('nance with and for giving effect t.o th<' intention of the legislature which made it clear that that wns so hv enacting the am•mdment to s. I !l2 hv the Act of f\l4!) within a year or so after the Act of 19-!8. 'Ve "onsider that this submission also dcRenes, in th!' circumstances of the present cae. to he rejected. It is a cardinal principlP of Ht'ltu tory construction t bat the i nt.ention of the legislature should bo gathered from the WL'rdR of the enactment. If, as we have held, those words arc incapable of the construct ion that. thern was a saving of the right of the .fonpad Snhhas to impose and co lied thn taxapart from the right. to collect the

arrPars of tax which accurcrl due while th(• District Council was in cxistenoe, that eonstructio11 cannot be

morlific<l and the legiHlative int<-nl with whi<"h that proviso was "nacted HUpplrmcntcrl by a reference to what the l<•gislatnr<.> <lie! later.

Xo doubt, there is authority for the position that when the mPaning of tbB words used in a.n Pnactment is amhiguouH nr obscure, subsequent statutes might sometim<>s l><•

ned as nhat hA.s been tnrmcd "a parli:tmcntary

e:xpoition" of the obscure phraeology. It.i~ hardly

.., -

necessary to discuss the permissible limits of this mode of construction for the purpose of-the present case, because the prime conditions for invoking that rule are absent here-there is no obscurity or

amiguity in the words of cl. (c) and secondly if the learned Attorney-General is right, the Provincial Legislature had no legislative capacity to enact the Amending Act of 1949-and this must include legislation either by way of explanation or exposition, and of course by positive enactment. If there is incapacity to enact retrospective legislation on the matter, the position is not rendered different by viewing it as parliamentary exposition. The validity of the amendment effected by the Act of 1949 must be judged independently and on its own merits and its terms cannot be used as a guide to the interpretation of what the legislature in enacting s. 192 of the Act 1948 intended by the words in cl. (c).

The next submission was that as the Act of 1949 amended the terms of s. 192 so as to save the power of the Janpad Sabhas to levy the cess with retros pective effect from the date when the Act of 1920 stood repealed, there was in the eye of the law a continuity in the levy of the cess or rate and so no hiatus or period of discontinuity existed such as had been suggested by the learned Attorney-General and the existence of which was the entire foundation of his argument. It must, however, be mentioned that the learned Attornev-General was not oblivious of this feature of the legislation of 1949, viz., that it purported to operate as it were to close the gap, but his submission was that if, in fact, the gap existed and there was factually a period of discontinuity, the legislature which had no authority to enact positive leiislation with reference to the topic in May 1949 was incompetent to pass an enactment with retrospective effect.

In our opinion, this argument of Mr. Sanyal requires serious consideration and the answer wouF

Rar1.a Krishnrr

Ramanath v.

The J anpad Sabha,

Gondia

Ayyangar J.

HG2

Rnma K, ialna

Rllfrlalud1'

The J anpi:u/ Sabha,

Ocmdia

A.yvangar J,

86 SUPRE~1E COUH.T REPOHTS [l!l62J SU!'P.

turn on the proper construction of the terms uf . s. 143(2) of the Go\'erument uf India Act. The first

matter tu bo considered would be the source of tho legislative power tu enact the Local Government [Act of l!J4~. In so far as the constitution of local • l authorities, their territorial di8tributiou, the endowl ing them with puwcrn, jW"isdictiun and authority in general are concerned, the legislative power therefore is to be found in entrv 13 of the P10vincial Legislative List II to Sch. V H uf th ti Gu.vemment of India Act, l!l35 reading :

'Luca! Government, that is to 8"Y' the constitution and powers of municival co'rporations, improvement trusts, district boards,

minii1g settlement authorities illld other local authorities for the purpose of local self. government on village administration".

It must howevn be observed that merely bt'cause the legislature is empowered under this entry to constitute local authorities and vest them with powers and jurisdiction it would not follow that these local bodies could be vested with authority to levy any and every tax for tho purporn of raising re,...nuo for the pi:rposes of local administration.

They could be validly authorised to raisu only those taxes which tho Province could raise under and by virtue of the relevant. entries in the Provincial Legislative List.

Thi~ is on the principle that the Province cou Id not <mthorise local bodies created by it t.o. impose taxes which it itself could nut directly levy for the J.>lll'poscs of the Provincial Government.

Now come11 the question whether the Provincial Legislature was competent, by legislation, tp discontinue the levy of the tax by effecting a ropeal of the taxing provision contained in the Local Self Government Act of 1920. There is no doubt that the general principle is that the power of a legislative body to repeal a law is co-extensive with its power to enact such a law, as would he seen from

the following passage in the judgment by Lord \Vatson in AttorneyGeneral for Ont, ario v. Attorney- General for the Dominion(1) :

"Neither the Parliament of Canada nor the provincial legislatures have authority to repeal statutes which they could not directly

enact." But obviously its application in particular instances would be controlled by express constitutional provision modifying the same. We have such provision in the case on hand in s. 14i1(2} of the Government of India Act, HJ35.

In the context the rele vant words of the sub-section could only mean

"May continue to be levied if so desired by the Pro vincial Legislature" which is indicated by or is implicit in the use of the expression "May" in the clause "may be continued until provision to the contrary is made by the Federal Legislature." This would therefore posit a limited legislative power in the Province to indicate or express a desire to continue or-not to continue the levy. If in the exercise of this limited power the Province desires to discontinue the tax and effects a repeal of the relevant statute the repeal would be effective. Of course, in the absence of legislation indicating a desire to discontinue the tax, the effect of the provision of the Constitution would be to enable the continuance of the power to levy the tax but . this does not alter the fact that the provision by its implication confers a limited legislative power to desire or not to desire the continuance of the levy subject to the overriding power of the Central Legislature to put an end to its continuance and it is on the basis of the existence of this limited legislative power that the right of the Provincial Legislature to repeal the taxation provision under the Act of 1920 could be rested. Suppose for instance, a Provincial Legislature desires the continuance of the tax but considers the rate too High and

(I) (1896] A. C. 348, 366.

Rama Krishna

Ramauath

The Janpad Sabha, Gondia

AyyangarJ.

llama KriF!rna

Rar'l'/auath , .. n .. J anp, d s ubha,

Oondia

A; Jllllf, O, J.

SUPREME COURT REPORTS [I 062] SUPP.

wishes it to le reduced and pnsses an enactmPnt for that purpose, it cannot b" that the legislation is incompetent and that the Statt> GovernmPnt must permit the local authority to levy tax at the same rate as prevailed on April I, J ll3i if the latter dosircd the continuance of the tax. If surh a lgisla tiou were e:1acted to achieve a r<'duction of tlw rate of the duty, its lgislathe competence must obviously be traceable to the power contained in words "m:.y continue to be levied" in s. 14:l(2) of the Goverrnnem of India Act. If we nm right so far it woulc.l follow thnt in the cxercist' of this limited legislative power tho l'ro\•ineial Legislature would also have a right to legislate for the eontinuanco of the tax provided, if of c:ourse, the other conditions of s. ,4; Jp!) a.re satiefiecl, viz., (I) that the tax was one which was lawfully levid by a local authority for the purposes of a local arl'a nt the commencement. of Part III of the Govemml'nt

of India Act.., (2) that. the identity of the body that collects the tax, the area for whose benefit the tax is to be utilised and the purposes for which the utilisation i:i to t; ike place continue to be the same and (~1) the rate of tho tax is not enhanced nor it; i

incidence in any manneralterod, so that it continues to be same tax. If as we have held earlier thero is a limited legislative power in the Province to enact a law with reference to the tax levy iiu as to continue it, tho validity of th(' Act of I \J4\! which manifested the legislative intent to Continue the tax . without any break, the legal continuity hl, ing

established by the retrospective operation of tlw

provision, has to be upheld.

The appeals therefore fail and are dismissed with costs-one set of hearing fee~.

Appeals dismissed.

RA:IIA KRISHNA RAMANA

H

THE .JANPAD SABHA, GONDIA

Berar Local Self Government Act 1920

s. 143

Berar Local Government Act, 1948

s. 192

s. 192

s. 143

Government of India Act, 1935

s. 192

s. 192

Section 143

Government of India Act, 1935

s. 192

Section 143(2)

Part HI of this Act

Art. 132

Section 51

sections 24, 48, 49

s. 79

Part III of the Government of India Act

Seventh Schedule

s. 143

Government of India Act, 1935

Part III of the Government of India Act

Berar Local Self Government Act, 1920

Self Government Act

s. 192

section 49

Art. 277

s. 192

s. 192

Art. 132

s. 143(2)

Government of India Act, 1935

Art. 277

s. 149(2)

India Act, 1935

s. 143(2)

s. 14

s. 143(2)

s. 192

s. 192

s. 143(2)

s. 14

Part ITT of the GoTernmont of India Act

Section 143

s. 192

s. 192

s. 192

s. 143(2)

s. 14

s. 14


3 s.c.R.

SUPREME COURT REPORTS 713

BACHHITTAR SINGH

THE STATE OF PUNJAB

(B. P. SINHA, c. J., K. SUBBA RAO, N. RAJAGOPALA

AYYANGAB, J. R. MUDHOLKAB and

T. L. VENKATARAMA AIYAB, JJ.)

Public Servant-Disciplinary Proceeding-Dismissal- Appeal--Minister passing order on file-Order not communicated-Whether binding-If order can be varied-Oh.ief Minister passing .final order-Validity-Rules of Business of Punjab Government, rr. 4, 8, 25, 28-0onstitution of India Arts. 166, 311.

The appellant was appointed a qanungo in Pepsu and latter as Assistant Consolidation Officer.

Complaints having been received against him, an enquiry was held as a result of which he was dismissed by the Revenue Secretary. Against this order he preferred an appeal to the State Government.

The Revenue Minister Pepsu wrote on the file that dismissal would be too hard and instead he should be reverted as qanungo but no written order to that effect was served upon the appellant. After merger of. Pepsu with Punjab, the Revenue Minister Punjab sent up the file to the ChiefMinister with the remarks "C.M. may kindly advise". The Chief Minister passed the order confirming the dismissal. and the order was duly communicated to the appellant.

The appellant challenged the order of the Chief 'Minister Punjab on the grounrl that the Chief Minister Punjab could not sit in review on the order of the Revenue Minister Pepsu and that the Chief Minister was not competent to deal with the matter as it pertained to the portfolio of the Revenue Minister.

Held, that the order of the Revenue Minister Pepsu could not amount to an order by the State Government unless it was expressed in the name of Rajpramukh as required by Art. 166(1) of the Constitution and was then communicated to the appellant.

Until the order was so communicated it was only of a provisional character and could be reconsidered over and 8Ver again.

Before communication the order was binding neither on the appellant nor on the State Government.

State of Punjab v. Sodhi Sukdev Singh A.l.R. (1961) f S.C.R~ 371, referred to.

Boehhiuar Singh

•• Thr Slalr of Punjab

1tt111iholk1t .T.

714 SUPREME COURT REPORTS (1962] SUPP.

Held, further, that the Chief Minister Punjab wa' competent to deal with the appeal and to pass the order which he did. Under r. 25 of the Rules of Business of the Punjab Government the matter undoubtedly related to the portfolio of the Revenue Minister, But since under r. 28(1 )(ii) and I xix) which provide that cases involving questions \ of policy and cases of administrat.ivc importance and such other cases or classes of cases as the t!:hief Minister may consider necessary shall be referred to the Chief Minister, the case wa• properly referred to the Chief Minister.

Under r. 4 the order passed by the Chief :Vlinistor, r.ve11 though it pertained to the portfolio of the Revenue Minister, would be dcen1cd to be an order of tlic Council of i\:finistcrs.

It would be the Chief Ministers advice to the Governor, for which the Council of finistcrs \\'Ottlrl be collectively responsible and action taken thereon v.otild be the action of the Government.

'~ Departmental proceedings cannot be dividerl into t\vo parts : (i) enquiry and (ii) taking Of acdon ; there is one con ti nuous proceeding though there are tvo stages.

Any action decided to he taken a!lainst a public servant found guilty e misconduct is a judicial order and as such it cannot be varierlf

at the will of the authority.

Crvrr, Arrm.r, ATE JumsnICTION : Civil Appeal 1'\o. 155 of 1961.

Appeal by the special Ieavo from t.ht~ judgment and order dated JamH\r.I' 5, 1959, of tl:e PunjBb High Court in Civil \Vrit Application No. 4fi0 of 1957.

I. M. !Ail, and M. L. Armarwal, for the appellant.

S. M. Sikri, AdvocateG'eneral }or the State of Punjab, N. S. Bindra and P. D. Menon, for the respondents.

1!162. ;\farch 7. The Judgment of the Court was delivered by

MenHOLKAH, .J.-This i;: an appeal by special leave against tho judgment of the Punjab High Court 1lismissing the appellant's petition under Art. 226 of the Constitution.

The appellant was appointed a qanungo in the former Stato of PEPSU in the year 1950. On December l, 1953 he was appointed Assistant Consolidation Officer. Certain complaints having been received regarding tampering with official records he was suspended and an enquiry was held against him by the Revenue Secretary of PEPSU Government. As a result of that enquiry the Revenue Secretary dismissed him by order dated August 30,

1956; on the ground that the appellant was not above board and was not fit to be retained in service. This order was duly communicated to the appellant.

Thereupon the appellant preferred an appeal before the State Government.

It would appear that he had submitted an advance copy of his appeal to the Revenue Minister of PEPSU who called for the records of the case immediately. After perusing them he wrote on the file that the charges against the apptillant were serious and that they were proved. He also observed that it was necessary to stop the evil with a strong hand. He, however, expressed the opinion that as the appellant was a refugee and had a large family to snpport. his dismissal would be too hard and that instead of dismissing him outright he should be reverted to his original post of qanungo and warned that if he does not behave properly in future he will be dealt with severely. On the next day the State of PEPSU merged in the State of Punjab.

According to the appellant the aforesaid remarks amount to an order of the State Government and that they were orally communicated to him by the Hevenue Minister. This is denied on behalf of the State. It is, however, common ground that the aforesaid remarks or order, whatever they be, were never comwunicated officially to the appellant.

After the merger of PEPSU with the State of

Bachhittrir Singh

The State of Punjab

M u<lholkar J.

1961.

8'1clthittar Singh

v. ' 'he Stal< of PunJalJ

M udMlk.;. J .

SUPREME COURT REPORTS [1962] SUPP.

Punja.b tho file was put up before the RP.venue Minister of Punjab, Mr.Darbara Singh.

On December 1/4, 1956, Mr. Darbara Singh remarked on the filo "Scrio11; charges have boon proved by tho Revenue Secrot;1r.Y' and Shri Bachhittar Singh was dismissed.

I wou lei. like tho Secretary i/c to clisc11ss the case personally on 5th December, 19.5G." Then on April 2/8, 1957 tho Minister noted on the file "C.M. may kindly arlviso." With this remark thr. file went up before the Chief :llinister, Punjab, who on April lfi/18, 19; ii, passed an order, the concluding portion of whfoh rearls thus :

"Having regard to tho gravity of the charges proved against this offici<d, I am definitely or the opinion that his dismissal from service is a correct punishment and no leniency should he shown to him merely ')n the ground of his being a displaced person or having a large family to support.

In• the circumstances, the order of dismissal should

stand.''

This order was communicated to the appdlant on May l, 1957.

Thereafter he preferred a pPtition under Art. 226 of the Constitution which, as already

stated, was di8missed by the Punjab High Court.

The validity of the order of tho Revenue Secretary dismissing the appellant was not challenged before us.

The point urged hcforn us is that the order of the Revonun :'lfinister of the PEPS\; having reduced the punishment from dismissal to reversion, tho Chief Minist"r of Punjab could not sit in review over that order and set it aside.

Two grounds arti urged in Aupport of this point. fhc first is t.hat the order of tho Revenue ,\finister of PEPSU was the ordor of the State Government and was not open to review. The second ground is that iu any case it was not within the competence of the Chief Minister of Punjab to doal with tl:\e matter

inasmuch as it pertained to the portfolio of the Revenue Minister.

Before we deal with the grounds we may state that the High Court was of the opinion that proceedings taken against the appellant were made up of two parts : (a) the enquiry (which involved a decision of the question whether the allegations made against the appellant were true or not) and

(b) taking action (i.e., in case the allegations were found to be true, whether the appellant should be punished or not and if so in what manner.) According to the High Court the first point involved a decision on the evidence and may in its nature be described as judicial while the latter was purely an administrative decision and that in so far as this was concerned there was no reason why the State Governrn, ent was incompetent to change its decision "if it thought , administratively advisable to do so". We 'canno't accept the view taken by

the High Court regarding the nature of what it calls the second part of the proceedings.

Departmental procee.dings .taken against a .Government servant are not divisible in the sense "in which the High Court understands them to be. There is just one continuous proceeding though there are two stages in it. The first is coming to a conclusion on the evidence as to whether the charges alleged against the Government servant are established or not and the second is reached only if it is found that they are so established. That stage deals with the action to be taken against the Government servant concer- . ned. The High Court aocepts that the first stage is a judicial proceeding and ind\)ed it must be so because charges have to be fr; uned, notice has to be given and .the person concerned has to be given an opportunity of being heard. Even so far as the second stage is concerned Art. 311 (2) of the Constitution requires a notice to be given to the person concerned as also an opportunity of being heard.

Bachhittar_ Singh " v . .

Th _State oj Punjab

' '- ''

.i.l1.ud/wlkar J.

Bachhittor Sin6Ji

Tiu Stall of P11rajah

M urlholkar J.

•I I •

• , I f( 718 SUPRmME G'OURT REPORTS (1962) SlJPl'

Therefore, this stage of thll proceeding is no less judioial than the earlier "one. Consequently any action decided to be taken against a Government servant found guilty of misconduct is a judicial order :tnd

as such it cannot be varied at the will of tho authority who is empowered to impose the punishment.

Indeed, the very object with which notice is required to be given on the question of punishment is to ensure that it will be such a.s would be justified upon t.he charges established and upon the other attendant circumstances of the oase. It is thus wholly erroneous to characterise the taking of action against a person found guilty of any charge at a departmental enquiry as an administrative order.

What we have now to consider is the effect of tho note recorded by the Revenue '.\iinistcr of PEPSU upon the file.

We will assume for the purpose of this case that it i, i an order. Even so the question is whether it can be regarded as the order of the State Gov<•rnment which alone, as admitted by the appellant, was competent to hear and decide il-n appeal from the order of the Revenue Seoretary.

Art. 166( I) of the Constitution requires that all executive act ion of the Government of a State shall be exprei; aed in the namo of the Governor.

Clause (2) of Art. 166 provides for the authentication of orders and other instruments made and executed in the name of the Governor.

Clause ( :l) of that Article enables the Governor to make rules for the more convenient transaction of tho buHiness of the Government and for the allocation among the ~1inistcrs of the said business. 'What the appellant c1llle an ordor of tho State Government is admittedly not expressed to be in the n11me of the Governor. But with that point we shall deal later. What we must first ascertain is whether the order of the Revenue l\Iinister is an order of the State Government i.e., of the Governor. In this

3 S.C.R.

SOPREME COURT REPORTS 719

connection we may refer tor. 25 of the Rules of Business of the Government of PEPSU which reads thus:

"Except as otherwise provided by any other Rule, cases shall ordinarily be disposed of by or under the authority of the Minister incharge who may by means of standing orders give such directions as he thinks fit for the disposal of cases in the Department. Copies of such standing orders shall be sent to the Rajpramukh and the Chief Minister."

According to learned counsel for the appellant his appeal pert3ins to the department which was in charge of the Revenue Minister and, therefore, he could deal with it.

His decision and order would according to him, be the decision and order of the State Geverriment. On behalf of the State reliance was, however, placed on r. 34 which required cer tain classes. of cases to be submitted to the Raj. pramukh and the Chief Minister before the issue of orders. But it was conceded during the course of the argument that a case of the kind before us does not fall within that rule. No other provision bearing on the point having been brought to our notice we would, therefore, hold that the Revenue Minis ter could make an order on behalf of the State Government.

The question, therefore, is whether he did in fact make such an order. Merely writing something on the file does not amount to an order. Before something amounts to an order of the State Government two things are necessary. The order has to be expressed in the name of the Governor as required by cl. (1) of Art. 166 and then it has to be communicated. As already indicated, no formal order modifying the decision of the Revenue Secretary was ever made.

Until such an order is drawn up the State Government cannot, in our opinion, be

BachhiUar Singh

The State of Punjab

' Mudholka' J.

IH:

BaoAhitlar Singh ..

Tit, 1.ie of 1:•nj•b

MtulliolkOT J,

,720 SUPRE.'\fE COuRT REPOiiTS (1962] sui>:P.

regarded as bound by what was stated in tho file.

Aa along as the matter rosted withhim the Revenue Minister could well sooro out his remarks o; minutes on the file and write fresh ones.

The business of State is a complicated one and has necessarily to be conducted th1\mgh the agency of a large number of officials and authorities. The constitution, therefore, . requires and so did the Rules of Ilusiness framed by the Rajpramukh of PEPSU provide, that the action must be taken by the authority concerned in the name of the Rajpramukh. It is not till this formality is observed that tho action can lie regarded as that of the State

or here, by tho Rajpramukh.

We may further observe thiit, constitutionally speaking, the Minister is no more than an adviser and that the head of the State, the Governor or Rajpramukh, * is to act with

thl'I aid and advil'e of his Council of Mir.1isters. Therefore, until such adviee is accepted by the Govemor whatever the Minister or tho Council of .\Iinisters may say in regard to a particular matter does not become the action of the State until the advice of the Council of Ministern is accepted or deemed to be a.cct>pted by the Head of the State. Indeed, it is possible that after exprc88ing one opinion a.bout a

particular matter at a particular stage a Minister or the Council of Ministers mi>y express quite a different opinion, one which may be completely opposed to the earlier opinion. Whioh of them can be regarded as the 'order' of the tate Government? Therefore to make the opinion amount to a decision of tbe Government it must be communicated to tho person concerned. In this connection we may quote the following from the judgment of this Court in the SW.re of Punjab v. Sodhi Snkhdev Singh ( ')-

"}Ir. Gopal Singh attempted to argue that before the final order was passed the Council

•Till the abolition of that office by the Amendment of the C.Onstitutioo in 1956. '

(I) [1961] 2 S.C.R. 371. 4-09.

of Ministers had decided to accept the respondent's representation and to reinstate him, and that, according to him, the respondent seeks .to prove by calling the two original orders. We are unable to understand this argument. Even if the Council of Ministers had provisionally decided to reinstate the respondent that would not prevent the Council from reconsidering the matter and coming to a contrary conclusion later on, until a final decision is reached by them and is communicated to the Rajpramukh in the form of advice and acted upon by him by issuing an order in that behalf to the respondent." Thus it is of the essence that the order has to be communicated to the person who would be affected by that order before the State and that person can be bound by that order. For, until the order is communicated to the person affected by it, it would be open to the Council of . Ministers to consider the matter over and over agin and, therefore, till its communication the order cannot be regarded as anything more than provisional in character.

We are, therefore, of the opinion that the remarks or the order of the Revenue Minister,

PEPSU are of no avail to the appellant.

Now as regards the next contention,· Learned counsel for the appellant contends that since his appeal was not decided by the Revenue Minister of Punjab, Mr. Darbara Singh but by the Chief Minister Mr. Pratap Singh Kairon, who had no jurisdiction to deal with it, the appeal must be deemed to he still pending. In this conneetion he relied upon r. 18 of the Rules of Business framed by the Governor of Punjab which corresponds to r. 25 of the PEPSU rules, which reads thus:

"Except as otherwise provided by any other Rule, cases shall ordinarlly be disposed

Bachhittar Yin:h .. .

The State of Panj•b

Mudhoikor J.

1962 ~- Baclihillar Sin1h

The StaU of PunjaS

Mudlwtbr J.

722 SUPREllIB COURT REPORTS [1962] SUPP.

of by or under the authority of the Ministerin-chargo who may, by means of standing orders, give such directions as ho thinks fit for the dispos:>l of cases in the Department. Copies of such standing ordern shall be sent to the Chief ;\Iinister and the Governor." .!\ow, unquestionably the matter here did pertain to the portfolio of the Revenue Minister.

But it was he himself who, aft-Or seeing the fi!<., submitted it to the Chief '.\Iinister for advice.

Leiirned counsel, however, contends that tho Chief Minister could, therefore, only give him advice and not usurp tho jurisdiction of the Revenue Minister and decide the case himself.

But this argument ignores r .28 (I) of the Punjab Rules of Business, the relevant portions of which run thus:

"28 (I) The following classes of cases shill I be submitted to the Chief Minister before tho issue of orders :-

(ii)

(vii)

x x x Cases raising questions of policy and

cases of administrative importance not alroady covored by the Schedulo.

x x x Proposals for the prosecutions, dismissal, removal or compulsory retirement of any gazetted officer.

X, x

(xix) Such other cases or classes of cases

as the chief Minister may consider necessary.

The learned Advocate-General contends that the

case would be covered by every one of these clauses.

In our opinion, cl.( vii) cannot assist him because it is not the contention of the State that the appellant is a gazetted officer.

We, however, think that

3 S.C.R.

SUPR:F!ME CODRT REPORTS 723

cl. (ii) would certainly entitle the Chief Minister to pass an order of the kind which he has made here.

The question to be considered was whether though grave charges had been proved against an official he should be removed from service forthwith or merely reduced in rank. That unquestionably raises a question of policy which would affect many cases all and the departments of the State.The Chief Minister would, therefore, have been within his rights to call up the file of his own accord and pass

orders thereon. Of course, the rule does riot say that the Chief Minister would be entitled to pass orders but when it says that he is entitled to call for the file before the issue of orders it clearly implies that he has a right to interfere and make such order as he thinks appropriate. Finally there is cl.

(xix) which confers a wide discretion upon the Chief Minister to call for an}' file and deal with it himself.

Apart from that we may refer to r. 4 of the Rules of Business of the Punjab Government, which reads thus:

"The Council shall be collectively responsible for all executive orders issued in the name of the Governor in accordance with these Rules whether such orders are authorised by an individual Minater on a matter pertaining to his portfolio or as the result of discussion at a meeting of the Council, or howsoever otherwise."

Thus the order passed by the Chief Minister, even though it is on a m.atter pertaining to the portfolio of the Revenue Minister, will be deemed to be an order of the Council of Ministers. So deemed its contents would be the Chief Minister's advice to the Governor, for which the Council of Ministers would be collectively responsible, The action taken thereon in pursuance of r. 8 of the Rules of Business made by the Governor under Art. 166(3) of the Constitution

BacHitlaf' Sinth

The SIGe of Punjab

MrdhoJkar J.

Bochliit14r Sfogh

Tru Stak of Punjab

.M udholkat J.

March 7.

724 SUPREME COURT REPORTs [l96ZJ SUPP.

would then be the action of the Government. Horo one of the Under Secretaries to the Government of Punjab informed the appellant by his letter dated !\fay, 1, 1957 that his representation '•had been considered 1tnd rejected", evidently by the State Government.

Thh; would show that appropriate action had been taken under the relevant rule.

Tho appeal is thus without substance and is dismissed. In view of the fact that the appellant is a displaced person with heavy responsibilities and with limited or possibly hardly any means we diroct that the costs shall be borntl by the parties concerned.

BHAURAY

B. BAIJNATH SINGH

(P. B.

GAJB!'!DltAGADKAR, A. K. SARKAR, K. N.

WANCHOO, K. C. DAS GUP'l'A and N. RAJA

GOl'ALA AYYANGAR, JJ.)

Pre-eniption-Stalt1tes entitling neighbours, co-sharera et.c. to pre-empt-C<msti!utionality of-If offend right to properly- Whethtr discriminatory-Rewa Stale Pre-emption Act, JY4G, s, 10-l'unjab Pre-emption Act, 1913(Punj. 1 of 1913), •· !G- Berar Land Revenue Code, 192S, Ch. X/V-Conatitution of /ndia, Art...14, 19(1)(!), 19(5).

Section IO of the Rewa State !'re-emption Act, 1946, conferred the right of pre-emption on the ground, inter alia of vicinage. The proviso to s. 10 provided that among preemptors of the same class the nearer in relationship t<:> . the vendor will exclude the more remote.

There were prov1s1ons in the Act for giving notice of an intended sale . to .persons having a right of pre.emption, for the loss of die ~1ght of pie-emption in case no action \vas taken on the notice and for fixation of a fair price by the Courl. It was contended

713

BACHHITTAR SINGH

THE STATE OF PUNJAB

B. P. SINHA

K. SUBBA RAO

Arts. 166, 311

Art. 166(1)

Art. 226

Art. 226

Art. 311

Art. 166( I)

Art. 166

Art. 166

[1961] 2 S.C.R. 371

Art. 166(3)

Pre-emption Act, 1913

Berar Land Revenue Code

s. 10