TMI Blog1965 (10) TMI 65X X X X Extracts X X X X X X X X Extracts X X X X ..... opment Programme in the said State. Pursuant to that Programme, each district in the State was divided into Blocks, called Community Development Blocks. Chintalapudi Taluk in the West Godavari District was one of such Blocks. A Block Planning and Development Committee was appointed for each Block and a District Planning and Development Committee for each district. All this was done by the Government by issuing administrative directions; indeed, the said Committees were only advisory bodies and the ultimate power vested in the Government. One of the activities of the said Committees was to constitute Primary Health centres in each district. On March 22, 1957, the Government of Andhra Pradesh issued a notification laying down broad principles for guidance in the selection of places for the location of Primary Health Centres. One of the said principles relevant to the present enquiry may be noticed at this stage and that is, the village selected for locating such Centre was expected to give 2 acres of site free and 50% cash contribution which would not be less than ₹ 10,000/-. On April 8, 1958, the Block Planning and Development Committee, Chintalapudi, resolved unanimously, mod ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0,000/- with the Block Development Committee and also donated 2 acres of land for the purpose of locating the said Centre in the said village. On July 31, 1959, on behalf of Dharmajigudem, Venkateswara Rao, the appellant, deposited the sum of ₹ 10,000/- in the Sub-Treasury and K. V. Krishna Rao donated 2 acres of land and delivered possession of the same to the Block Development Officer. On August 14, 1959, the said Committee, after reviewing the previous history of the location of the Primary Health Centre and after noticing that both the villages deposited the amount-one on July 27, 1959 and the other on July 31, 1959-and after considering the competing claims, resolved unanimously to have the Primary Health Centre located permanently at Lingapalem and to request the authorities concerned to shift it from Dharmajigudem to Lingapalem at an early date. One important fact to be noticed in this resolution is that it was recorded therein that the representatives of Dharmajigudem assured the representatives of Lingapalem that they not only gave up their efforts to have the Primary Health Centre at Dharmajigudem but also unanimously agreed to have it located at Lingapalem. It was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Samithi on May 28, 1960. On May 29, 1961, the Samithi passed another resolution adopting all the resolutions which it cancelled on May 12, 1961, except the resolution to locate the Primary Health Centre at Dharmajigudem. In regard to the location of the said Centre it resolved to locate it at Lingapalem. On March 71, 1962, the Government made an order holding that there was no valid reason for shifting the Primary Health Centre from Dharmajigudem to Lingapalem and directing the Block Development Officer to take action accordingly. The main reason given for that order was that the Primary Health Centre was already func- tioning at Dharmajigudem and a Health Centre once established should not be shifted to another place within the Block unless the Panchayat Samithi resolved by two- thirds majority of the members present at the meeting as required under r. 7 of the Rules and that the resolution dated May 29, 1961, was not supported by the requisite majority. On April 18, 1963, i.e., about a year after the earlier order, the Government passed another order wherein it held that it passed the previous order dated March 7, 1962, on a mistaken impression that it was a case of shifting ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the ground that the said order was made under a mistaken impression that the Primary Health Centre was permanently located at Dharmajigudem and directed the Centre to be located at Lingapalem. It will, therefore, be seen that though the Health Centre was formally inaugurated at Dharmajigudem before the Act came into force, there was not and could not have been a permanent location of the Centre at that place, as the condition precedent was not compiled with. After the Act came into force, though the Panchayat Samithi at first approved of the location of the Centre at Dharmajigudem, it cancelled the resolution and decided to locate it at Lingapalem. The Government, on a misapprehension of fact, set aside that order, but when it came to know of the mistake it reviewed its earlier order and directed the location of the Centre at Lingapalem. The question is whether on these facts the Government had jurisdiction to make the order which it did in exercise of its powers under s. 72 of the Act. The appellant, who was the representative of the village of Dhartnajigudem in all the said proceedings, filed an application before the High Court under Art. 226 of the Constitution for quashin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e relevant Rules made by the Gov- ernment in exercise of the power conferred on it under s. 69 of the Act, read with sub-s. (2) of s. 18 thereof, where under the ultimate authority under the Act to locate the Health Centre was the Government, though on the recommendation of the Panchayat Samithi. In this view, the argument proceeded, no question of review would arise at all, for the Government passed the final order in regard to the location of the Primary Health Centre at Lingapalem. The learned Solicitor General, appearing for the 4th respon- dent, supported Mr. Ram Reddi on all the points and further elaborated that aspect of the argument which related to the construction of the order made by the Government on March 7, 1962. The first question is whether the appellant had locus standi to file a petition in the High Court under Art. 226 of the Constitution. This Court in The Calcutta Gas Company (Proprietary) Ltd. v. The State of West Bengal([1962] Supp. 3 S.C.R. 1, 6), dealing with the question of locus standi of the appellant in that case to file a petition under Art. 226 of the Constitution in the High Court, observed Article 226 confers a very wide power on the High Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dicates, a person who has been prejudicially affected by an act or omission of an authority can file a writ even though he has no proprietary or even fiduciary interest in the subject-matter thereof. The appellant has certainly been prejudiced by the said order. The petition under Art. 226 of the Constitution at his instance is, therefore, maintainable. Now, we shall first take the new argument advanced by Mr. Ram Reddy for the first time before us, for, if that was accepted, the appeal would fail. Briefly stated, his contention was that the order of the Government dated April 18, 1963, was not made either under s. 62 or under s. 72 of the Act, but was made only under the Rules made by the Government in exercise of its power under s. 69 of the Act. To appreciate this contention it will be useful to notice the relevant rules. Under r. 2, the Panchayat Samithi only recommends to the Government the place for locating the said Centre. Under r. 3 (11), in the case of conflict between the relevant authorities in regard to the location of a Health Centre, the Govemment's order shall be final. Under's. 6, a Primary Health Centre once established shall not ordinarily be shifte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The rules, therefore, in so far as they transfer the power of the Panchayat Samithi to the Government, being inconsistent with the provisions of the Act, must yield to s. 18 of the Act. Realizing this difficulty, the learned Solicitor General, who appeared for the 4th respondent, made an attempt to reconcile the relevant rules with the provisions of s. 18 of the Act. He argued -that s. 18 of the Act conferred a power on the Panchayat Samithi to establish and maintain Primary Health Centres, whereas the Rules provided for the location or shifting of the Centres. This argument does not appeal to us. A Primary Health Centre cannot be established in vacuum; it must be established in some place. The Rules deprive the Panchayat Samithi of the power to select a place for establishing a Primary Health Centre and make it a re- commendatory body with final powers in the Government. The Rules also confer a power on the District Medical Officer and the District Health Officer in the matter of location of the Centre and give the Government the final voice, if there is any conflict between -those officers and the Panchayat Samithi. Even in regard to shifting of the Primary Health Centre, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... should have been made under sub-s. (1). To appreciate the scope of S. 72(1) of the Act, it is necessary to compare the said sub-:section with S. 62 of the Act. Under S. 62(1), the Government may, by order in writing, cancel any resolution passed by a Panchayat Samithi, if in its opinion such resolution is not legally passed or is in excess or abuse of the powers conferred by or under the Act or for any other reasons mentioned therein. Under sub-s. (2) of S. 62, the Government shall, before taking action under sub-s. (1) thereof shall give the Panchayat Samithi or the Zilla Parishad, as the case may be, an opportunity for explanation. Section 72 confers a general power on the Government; and on its terms, if there was no other section, it can cancel a resolution of a Panchayat Samithi. But, S. 62 of the Act confers a special power on the Government to cancel a resolution passed by a Panchayat Samithi in the circumstances mentioned therein. The principle generalities specialities non derogant compels us to exclude from the operation of S. 72 the case provided for under s. 62. If so construed, it follows that if the order reviewed fell under the scope of s. 62, it could not be review ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said order did not mention the section whereunder it was passed, that it did not cancel any resolution, that it did not in terms approve or disapprove any resolution, that it considered other orders issued and finally gave a direction to the Block Development Officer to take action in accordance with the terms of the order. In short, the argument of the learned counsel was that the order was not for the cancellation of the resolution of the Panchayat Samithi but one made in terms of s. 72 of the Act. We are not impressed by this argument. The preamble to the order clearly mentions that the Panchayat Samithi Chintala- pudi, it its meeting held on May 29, 1961, resolved to shift the Primary Health Centre permanently to Lingapalem village. Then it states that the President of the Dharmajigudem Panchayat and others had represented to the Government against the acceptance of the said resolution. The order then records that the Government had carefully considered the said representation. Then it gives the reason that the said resolution was bad inasmuch as that under r. 6 of the Rules the Primary Health Centre once established should not ordinarily be shifted to another place within the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... opportunity for explanation. This opportunity was not given and, therefore, that order was not legal. Now let us assume that the said order was made under sub-s. (1) of s. 72 of the Act. Two objections were raised against the validity of the order reviewing the previous order, namely, (i) there was no mistake of fact or law, and (ii) the said order, which was prejudicial to Dharmajigudem village, was made without giving an opportunity to the representatives of the said village of making a representation. The order gives in extension the history of the dispute between Dharmajigudem and Lingapalem in the matter of location of the Primary Health Centre. It points out that all the earlier resolutions of the Panchayat Samithi were cancelled and Sup .C/66-13 the only outstanding resolution was that of May 29, 1961, whereunder the said Centre was directed to be located permanently at Lingapalem. Then it proceeds to say that the order dated March 7, 1962, was passed on a mistaken impression that it was a case of shifting the Primary Health Centre from one place where it was permanently located to another, while the correct position was that the place where the Primary Health Centre was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e in their village. The order made in derogation of the proviso to sub-s. (1) of s. 72 of the Act is also bad. The result of the discussion may be stated thus : The Primary Health Centre was not permanently located at Dharmajigudem. The representatives of the said village did not comply with the necessary conditions for such location. The Panchayat Samithi finally cancelled its earlier resolutions which they were entitled to do and passed a resolution for locating the Primary Health Centre permanently at Lingapalem. Both the orders of the Government, namely, the order dated March 7, 1962, and that dated April 18, 1963, were not legally passed : the former, because it was made without giving notice to the Panchayat Samithi, and the latter, because the Government had no power under s. 72 of the Act to review an order made under s. 62 of the Act and also because it did not give notice to the representatives of Dharmajigudem village. In those circumstances, was it a case for the High Court to interfere in its discretion and quash the order of the Government dated April 18, 1963 ? If the High Court had quashed the said order, it would have restored an illegal order-it would have give ..... X X X X Extracts X X X X X X X X Extracts X X X X
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