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TMI Blog2020 (5) TMI 721X X X X Extracts X X X X X X X X Extracts X X X X ..... , to inquire into the matter regarding mis-utilization and misappropriation of public money, and to take action against the culprits; and for a writ of mandamus or declaration directing the State authorities to take appropriate action against the private respondent, to seize his financial powers thereby preventing him from misappropriating public money, and to declare his continuance in office as illegal. 2. During the hearing of this Writ Petition on 02.03.2020, it was brought to our notice by Mr. Paresh Tripathi, learned Chief Standing Counsel for the State of Uttarakhand, that several other Writ Petitions were pending in this Court on the question whether or not the power to suspend a Village Pradhan is a quasi-judicial power, and whether such a power could be delegated by the State Government to the District Magistrate; in view of the interim orders passed in those writ petitions, the Secretary to the Government was now required to examine the cases of more than five thousand Gram Pradhans in the entire State; and all these Writ Petitions be heard early. Since the very same questions, which arise for consideration in Writ Petition (PIL) No. 22 of 2020, were also raised in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... irregularities in the execution of MGNREGA works, could only be taken in terms of the Mahatma Gandhi National Rural Employment Guarantee Act, 2005 (for short the "2005 Act"), and the Regulations made thereunder; and the petitioner could not be proceeded against under the Uttarakhand Panchayati Raj Act. 6. Writ Petition (M/S) No. 3876 of 2019 was filed by another Village Pradhan questioning the notification dated 09.06.2017, (whereby the power of the State Government was delegated to the District Magistrate), and on the ground that no show-cause notice was issued to the petitioner before placing him under suspension. 7. The questions which arise for consideration, in this batch of cases, are (a) whether the first proviso to Section 138(4) of the Act, whereby an opportunity of hearing is required to be given, would apply even in the case of suspension, or whether it would apply only where the services of the Village Pradhan are sought to be terminated; (b) whether the power, to place a Village Pradhan under suspension, is a quasi-judicial power; (c) if so, whether such a power, conferred on the State Government under Section 138(4) of the Act, can be delegated by them to the Distri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Municipal Corporation v. Dhondu Narayan Chowdhary [AIR 1965 SC 1486]; a Full bench judgment of the Allahabad High Court in Shamim [(2018) 6 ADJ 1]; and a Division Bench judgment of this Court in Nainital Bank Ltd. v. M/s Naveen Kisan Rice Mill & others [2019 (134) ALR 757]. I. IS THE POWER, CONFERRED BY SECTION 138(4) OF THE ACT, A QUASI-JUDICIAL POWER? 10. In examining the question whether the power conferred on the Government, to place a Gram Pradhan and others under suspension pending inquiry, is a quasi-judicial or an administrative power, it is necessary to note, at the outset, the relevant provisions of the Act. Section 138(1) of the Act enables the State Government to remove a member of the Panchayats on any of the following grounds-(a) that he has acted as a member of the Gram Panchayat, Kshettra Panchayat and Zila Panchayat, or member of any committee, by voting or taking part in the discussion of any matter in which he has, directly or indirectly, a personal interest or in which he is professionally interested on behalf of a client, principal or other person; (b) that he has become physically or mentally incapacitated from performing his duties as such member, Pradhan, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... their removal from such office. 12. Section 138(4) relates to suspension, and, under Sub-Section (a) thereof, if, after the preliminary enquiry, the Pradhan, Up pradhan, Pramukh, Up pramukh, Chairman, Vice-Chairman is found guilty, prima facie, then, till the final enquiry, the State Government may suspend him. Clause (b) stipulates that, if it is proved that the meeting of Gram Sabha/ Gram Panchayat is convened in the house of the Pradhan/ Up Pradhan then, after enquiry against the concerned person, the State Government may suspend him. Under the first proviso thereto, no order shall be passed, adversely affecting any person by the State Government/ designated authority, unless such person has been given an opportunity of making his representation. The second proviso requires a preliminary inquiry to be completed within one month, and the final inquiry to be completed within six months, positively. 13. As noted hereinabove, Section 138(4) relates to suspension, and clauses (a) and (b) thereunder stipulate when the Pradhan, and others referred to therein, can be placed under suspension. Section 138(4) requires an enquiry to be caused before placing the Gram Pradhan and others und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts, as the representation by the Gram Pradhan to the show cause notice is required to be considered and an order passed assigning reasons for not accepting his contentions in the representation, exercise of power, to place him under suspension, is quasi-judicial in character. 16. The authority, passing the order of suspension, must be held to be a quasi-judicial Tribunal, for Tribunals are adjudicating bodies and they deal with and finally determine disputes between parties which are entrusted to their jurisdiction (Madras Bar Association [(2010) 11 SCC 1]; and Durga Shankar Mehta v. Raghuraj Singh and others [1955 (1) SCR 267]) under certain special laws (in the present case, Section 138(4) of the Act). In order to be a Tribunal, a body or authority must, besides being under a duty to act judicially, be invested with the judicial power of the State. (Jaswant Sugar Mills v. Laxmi Chand [AIR 1963 SC 677]; and Madras Bar Association [(2010) 11 SCC 1]). Tribunals are special alternative institutional mechanisms, usually brought into existence by or under a Statute, to decide disputes arising with reference to that particular statute, or to determine controversies arising out of any a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rnor Manisha Panwar, Principal Secretary (a) JUDICIAL POWER CANNOT, ORDINARILY, BE DELEGATED: 19. On the question whether the power conferred on the Government, to place the Gram Pradhan and others under suspension, can be delegated to the District Magistrate, it is necessary, at the outset, to understand what the word "delegation" means. "Delegation" is defined in Black's Law Dictionary as "the act of entrusting another with authority by empowering another to act as an agent or representative". In P. Ramanatha Aiyar's, The Law Lexicon, "delegation" is defined as "the act of making or commissioning a delegate". Delegation, generally, means parting of powers by the person who grants the delegation, but it also means conferring of an authority to do things which otherwise that person would have to do himself. (Sidhartha Sarawgi v. Board of Trustees for the Port of Kolkata and others [(2014) 16 SCC 248]). Delegation may be defined as the entrusting, by a person or body of persons, of the exercise of a power residing in that person or body of persons, to another person or body of persons, with complete power of revocation or amendment remaining in the grantor or the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of his arrest and the sailing of the ship selected for his passage. Acting under those general directions, an assistant secretary in the Home Office caused instructions to be given to the police for the alien's arrest and conveyance to the ship selected for his deportation. The alien was accordingly arrested. 22. It is in this context that it was held that an order for deportation had been made against the alien, and it was in the form held valid by the Court of Appeal in R. v. Secretary of State for Home Affairs, ex parte Duke of Chateau Thierry [(1917) 1 KB 922]; Parliament had allowed the Order in Council to confer upon such persons, as may be specified in the Order, powers with regard to arrest and detention; and these powers were of a judicial character and could not be delegated by the person named in the Order. 23. An element which is essential to the lawful exercise of judicial power is that it should be exercised by the authority upon whom it is conferred, and by no one else. Normally, Courts are rigorous in requiring the power to be exercised by the precise person or body stated in the statute. The principle is strictly applied, even where it causes administrative inco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons as it may deem fit to impose. Section 185 of the Act relates to the delegation of powers by the State Government, and enables it to delegate all or any of its powers under the Act to the appointed authority subject to the Zila Panchayat or Zila Panchayats or Kshetra Panchayat or Kshetra Panchayats or Gram Panchayats. When the Government delegates its power to an officer or authority subordinate to it, it is not unreasonable to assume that it fully considers the fitness of the delegate before making the order in respect of the delegation. (Hari Chand Aggarwal v. Batala Engineering Co. Ltd. [AIR 1969 SC 483]; and M/s Naveen Kisan Rice Mill and others [2019 (134) ALR 757]). (c) JUDICIAL POWER OF A SOVEREIGN STATE IS ENTRUSTED TO COURTS AND TRIBUNALS BY THE CONSTITUTION ITSELF OR BY A LAW MADE BY THE COMPETENT LEGISLATURE : 26. A sovereign State discharges legislative, executive and judicial functions and can legitimately claim corresponding powers which are described as legislative, executive and judicial powers. Under our Constitution, the judicial functions and powers of the State are primarily conferred on the ordinary courts which have been constituted under its relevant pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) 1 SCR 1071]). 29. Entry 11A read with Entry 46 of List III of the Seventh Schedule, and other relevant entries of this list, confer power both on Parliament and the State Legislature to create Courts and Tribunals. Entry 65 of List II, and other entries therein, confer power on the State Legislature to create Courts and Tribunals and confer power on them. (Madras Bar Assn. [(2010) 11 SCC 1]). The expressions, "administration of justice" and "constitution and organisation of courts", used in Entry 11-A of List III, are without any qualification or limitation, and are wide enough to include the power and jurisdiction of Courts, irrespective of what its subject-matter may be. (Indu Bhusan De v. State of West Bengal [AIR 1986 SC 1783]). The Legislature can bring into existence a Court with general jurisdiction to administer justice on all matters coming before it within certain territorial and pecuniary limits, subject to the condition that such general jurisdiction may be expressly or impliedly taken away by the provisions of other laws. (State of Bombay v. Narothamdas Jethabhai [AIR 1951 SC 69]; and Jamshed N. Guzdar v. State of Maharashtra and others [(2005) 2 SCC 591]). As soon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ein. (The United Provinces v. Mst. Atiqa Begum and others [(1940) F.C.R. 110]; Navinchandra Mafatlal v. The Commissioner of Income-Tax [AIR 1955 SC 58]; and Madras Bar Assn. [(2010) 11 SCC 1]). 32. It is a fundamental principle of the construction of a Constitution that everything necessary for the exercise of powers is included in the grant of power. Everything necessary, for the effective execution of the power of legislation, must be taken to be conferred by the Constitution with that power. (G.N. Venkataswamy [AIR 1995 SC 21]). A construction, which is beneficial to the amplitude of legislative powers, should be adopted. (Jilubhai Nanbhai Khachar & others v. State of Gujarat and Ors. [AIR 1939 F.C. 1]; India Cement Ltd. [(1990) 1 SCC 12]; In Re : C.P. & Berar Sales of Motor Spirit & Lubricants Taxation Act [AIR 1939 F.C. 1]; Frederick Alexander James v. Commonwealth of Australia [(1936) AC 578]; and Jayant Verma and Ors. v. Union of India and Ors. [(2018) 4 SCC 743]). 33. It is a cardinal rule that words, conferring the right of legislation, should be interpreted literally and the powers conferred should be given the widest scope. (Diamond Sugar Mills Ltd. v. State of Uttar P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... utory mandate in Sections 146 and 185 of the Act, the State Government could have issued the notification dated 09.06.2017 delegating its power, to place a Gram Pradhan under suspension, to the District Magistrate? In the case of statutory provisions conferring the power of delegation, the important question is whether, on its true construction, it is intended that a power conferred upon A may be exercised on A's authority by B. The maxim, Delegatus Non Protest Delegare", merely indicates that this is not normally allowable. (Administrative Law -by H.W.R. Wade & C.F. Forsyth - Seventh Edition). 37. In practice government demands a great deal of delegation. This has to be authorized by statute, either expressly or impliedly. Statutory delegation of powers must be construed in the same way as other powers, and will not therefore extend to sub-delegation in the absence of some express or implied provision to that effect. The delegate must also keep within the bounds of the power actually delegated, which may be narrower than that possessed by the delegating authority. (Administrative Law -by H.W.R. Wade & C.F. Forsyth-Seventh Edition). As noted hereinabove, Section 146 enables the St ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Roop Chand [AIR 1963 SC 1503], Section 21(4) of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (for short the "1948 Act") provided for an appeal to the State Government, but the petitioner's appeal was heard by the Assistant Director, Consolidation of Holdings to whom the Government's powers and functions, concerning the appeal, had been delegated under Section 41(1) of the 1948 Act which enabled the State Government, for the administration of the Act, to appoint such persons as it thinks fit, and, by notification, to delegate any of its powers or functions under the Act to any of its officers either by name or designation. Section 42 of the 1948 Act, as was amended by Act 27 of 1960 with retrospective effect, enabled the State Government, at any time for the purpose of satisfying itself as to the legality or propriety of any order passed, scheme prepared or confirmed by any officer under the Act, to call for and examine the records of any case pending before or disposed of by such officer, and to pass such order in reference thereto as it thought fit. 41. It was contended that an order, which could be interfered with under Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vernment itself, and not an order passed by the District Magistrate independently. In view of the notification dated 09.06.2017, both the State Government (delegator) and the District Magistrate (delegate) can exercise power to place a Gram Pradhan under suspension. However, once such a power is exercised, the other cannot exercise such a power thereafter. It is also open to the State Government, if it so chooses, to cancel the delegation, the consequence of which would be that the District Magistrate would, thereafter, cease to exercise jurisdiction to place a Gram Pradhan under suspension. 44. In Dhondu Narayan Chowdhary [AIR 1965 SC 1486] Section 68(1) of the Bombay Municipal Corporation Act, 1888 (for short the "1888 Act") stipulated that any of the powers, duties or functions conferred or imposed upon or vested in the Commissioner, by any of the Sections mentioned in Sub-Section (2), may be exercised, under the Commissioner's control and subject to his revision and to such conditions and limitations, if any, as he shall think fit to prescribe, by any municipal officer whom the Commissioner generally or specially empowered in writing in this behalf; and in each of the said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion. 47. As held by the Supreme Court, in Dhondu Narayan Chowdhary [AIR 1965 SC 1486], judicial power cannot, ordinarily, be delegated unless the Statute either expressly or by necessary implication permitted it; and, in the absence of any challenge to the vires of the provision, it should be reasonably construed. The words, "any of the powers, duties and functions", used in Section 68(1) of the 1888 Act, were construed as indicating the intention that the judicial or quasi-judicial powers, contained in Chapter VI-A, were expressly intended to be delegated. The words "all or any of its powers", used in Section 146 of the Act, also show that the power of suspension, under Section 138 of the Act, is expressly indicated to be delegated. 48. In Udai Bhan Singh [(1976) 2 ALR 202], the Sub-Divisional Officer had passed an order under Section 95(1)(gg) of the U.P. Panchayat Raj Act placing the Appellant-Gram Pradhan under suspension pending further proceedings under Clause (g) of Section 95(1). It was contended on behalf of the appellant that the power of suspension, under sub-section (gg), was a quasi-judicial power and, unless there was a specific provision in the Act itself permitti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion. The State Government was vested with the power of delegation under Section 96A of the U.P. Panchayat Raj Act 1947 (hereinafter referred to as the "1947 Act"). It is in this context that the Allahabad High Court held that the Pradhan is an elected Officer and, therefore, abundant caution had been taken by the State Government while delegating its power to the Sub-Divisional Officer; it is in order to check the reasonableness of the order, that it was provided that the order of suspension passed by the Sub-Divisional Officer shall be revisable by the Commissioner of the Division; thiswas covered within the phraseology ' subject to such conditions'; the Legislature, in its wisdom, had provided for delegation of powers by the State Government and, therefore, the State Government could, by notification, delegate its powers within the ambit of the exercise of powers for the purpose of passing the order for breach of any of the conditions provided in Section 95 of the Act; and the notification did not suffer from the vice of excessive delegation. 51. In Matloob Ahmad [(1986) AWC 1175], the State Government, by its notification, delegated its powers under Section 95(1)(g) o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... financial powers, is an independent power and, therefore, the delegated powers, which the District Magistrate enjoys under the notification issued under Section 185 read with Section 146, cannot be extended to it; the power, in respect of a Pradhan, is unambiguously delegated by the State Government to the District Magistrate; and the delegation of the power was not called in question in the writ petition. 53. In Shamim [(2018) 6 ADJ 1], a Full Bench of the Allahabad High Court was called upon to examine the scope of Section 95(1)(g) of the U.P. Panchayat Raj Act, 1947 which dealt with the removal of the Pradhan of a Gram Panchayat, and enabled the State Government to remove a Pradhan in the circumstances specified therein. Under the second proviso no action could be taken under Clause (g) except after giving to the person concerned a reasonable opportunity of showing cause against the action proposed. Section 95(3) provided that no order, made by the State Government, under Section 95, shall be called in question in any Court. 54. It is in this context that the Full Bench of the Allahabad High Court held that Section 95 conferred power upon the State Government to remove the Pra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 14 and would not have confined the power, to authorize a subordinate officer, only to the taking possession of the assets and documents, and forwarding such assets and documents to the secured creditor; and in the absence of Parliament conferring authority on the District Magistrate or the Chief Metropolitan Magistrate to delegate its powers, the doctrine of delegatus non potest delegare would apply, and any such delegation would then contravene the provisions of Section 14 of the SARFAESI Act, and would be illegal. 56. Unlike in M/s Naveen Kisan Rice Mill [2019 (134) ALR 757], Section 146 of the Act is widely couched, and confers power on the State Government to delegate all or any of its powers under the Act to any officer subordinate to it. The District Magistrate is an officer subordinate, and delegation of the power of suspension to him, by notification dated 09.06.2017, is legal and valid. In none of the aforesaid judgments has a different view been taken. Viewed from any angle, we are satisfied that the challenge to the validity of the notification dated 09.06.2017 must fail. III. MGNREGA : 57. Mr. Parikshit Saini, learned counsel appearing for the Village Pradhans, wou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rural areas covered under the Scheme and whose adult members, by application, volunteer to do unskilled manual work subject to the conditions laid down by or under the 2005 Act and in the Scheme. 60. Section 27 of the 2005 Act confers on the Central Government the power to give directions and, under Sub-Section (1), the Central Government may give such directions, as it may consider necessary, to the State Government for the effective implementation of the provisions of the 2005 Act. It is in the exercise of the powers, conferred by Section 27 of the 2005 Act, that the Central Government had, by its proceedings dated 24.05.2013, issued revised instructions to the State Government. Clause 10 of the said instructions prescribes the procedure for filing complaints and, under Clause 10.1, any person, who has a grievance against the MGNREGA Authority or beneficiary, may, himself or through his authorized representative, make a complaint against a MGNREGA Authority or beneficiary in writing to the Ombudsman or to any MGNREGA authority superior to the authority complained against. Complaints addressed to the Ombudsman, but received by the MGNREGA authority, are required to be forwarded t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bmit that, though the Inquiry Committee constituted by the District Magistrate, had found the Gram Pradhan to have committed several irregularities, and though a show-cause notice was issued to him by the District Magistrate on 01.12.2019, no action has been taken thereafter on the premise that the District Magistrate lacks jurisdiction to take action, against the Village Pradhan, under Section 138 of the Act; the State Government cannot plead helplessness, and await a ruling on whether or not it can delegate its powers, to take action under Section 138 of the Act, to the District Magistrate; such a power is, in any event, available to be exercised by the State Government itself; and failure on the part of the State Government, to take prompt action, would amount to abdication of its responsibilities and necessitate this Court's intervention. 64. While the submission of Sri M.C. Pant, learned counsel for the petitioner, that, despite issuance of the notification dated 09.06.2017, the State Government would continue to have power, under Section 138(4) of the Act, to place a Gram Pradhan under suspension, has considerable force, it is unnecessary for us to dwell on this aspect any f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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