1. Appointment of an Executive Officer under Section 53-A of the C.P. and Berar Municipalities Act, 1922, based on the Municipal Committee's alleged incompetence. (Para 1 , 2 , 3 )
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1958 Supreme(SC) 119
SUPREME COURT OF INDIA
30th September, 1958.
S.R. DAS, C.J.I., N.H. BHAGWATI, S.K. DAS, J.L. KAPUR AND K. SUBBA RAO, JJ.
Radeshyam Khare and another, Appellants
Versus
The State of M.P. and others, Respondents.
Civil Appeal No. 301 of 1958.
Advocates Appeared
Mr. M. K. Nambiar, Senior Advocate (M/s. S. N. Andley, J. B. Dadachanji and Rameshwar Nath, Advocates of M/s. Rajinder Narain and Co., with him), for Appellants; Mr. M. Adhikari, Advocate-General, Madhya Pradesh and Mr. I. N. Shroff, Advocate, for Respondents.
Advocates:
I.M.SHROFF, J.B.DADACHAN, M.ADHIKARI, M.K.NAMBIYAR, RAMESHWAR NATH ROY, S.N.ANDLEY
I.M.SHROFF, J.B.DADACHAN, M.ADHIKARI, M.K.NAMBIYAR, RAMESHWAR NATH ROY, S.N.ANDLEY
The appointment of an executive officer under Section 53-A of the C.P. and Berar Municipalities Act is an administrative act, not quasi-judicial. Determining a jurisdictional fact as a preliminary step to an administrative function does not inherently require a judicial process or a formal hearing.
Headnote:(A) C.P. and Berar Municipalities Act, 1922 - Sections 53-A and 57 - Appointment of Executive Officer vs. Dissolution of Committee - Nature of State Government's power - Administrative vs. Quasi-judicial act - The State Government has the discretion to choose between appointing an Executive Officer under Section 53-A or dissolving the committee under Section 57, even if grounds for both exist. Section 53-A is a temporary, less drastic measure that does not affect the legal existence of the committee, whereas Section 57 is a drastic action that puts an end to the committee's existence. (Paras 7, 8)
(B) Principles of Natural Justice - Duty to act judicially - A writ of certiorari lies only if the statutory body is quasi-judicial and has a duty to act judicially. The determination of a jurisdictional fact as a preliminary step to an administrative function does not necessarily make the act quasi-judicial. (Paras 10, 11, 11a)
(C) Administrative Action - Where a statute empowers an authority to take action based on subjective satisfaction and policy or expediency, and does not prescribe a judicial procedure or a mandatory hearing (unlike Section 57(5)), the action is administrative. The requirement to state reasons in the Gazette is for public accountability and does not convert an administrative act into a judicial one. (Paras 11a, 45, 48, 50)
Facts of the case:
A state government appointed an executive officer for a municipal committee for 18 months under the relevant municipal act, citing the committee's incompetency. This followed an enquiry into allegations of mismanagement and abuse of power. The committee and its president challenged the order, arguing it was effectively a dissolution under a different section requiring a prior hearing and that it violated natural justice.
Findings of Court:
The appointment of an executive officer under Section 53-A is an administrative act, not a quasi-judicial one. The state government is not required to follow a full judicial procedure or provide a formal hearing before such an appointment, provided the rules of fair play are observed.
Issues: (i) Whether a notification issued under Section 53-A could be construed as an order under Section 57; (ii) Whether the state government had a duty to act judicially and provide a hearing before determining the incompetency of the committee under Section 53-A.
Ratio Decidendi: The court held that Section 53-A and Section 57 are materially different in scope and effect. The state government possesses the discretion to apply the less drastic remedy of Section 53-A even if the committee's actions constitute an abuse of power. Furthermore, the determination of "incompetency" under Section 53-A is a preliminary step to an administrative function and does not impose a duty to act judicially, especially when the statute lacks a mandatory hearing provision like that found in Section 57(5).
Result: Appeal dismissed.
Legal Category Hierarchy
- administrative law
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municipal law
-
municipal administration
- state control over municipalities (Para 7)
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municipal administration
Table of Contents
2. Whether the order was effectively under Section 57 requiring a hearing, or under Section 53-A violating principles of natural justice and being mala fide. (Para 5 , 6 , 27 , 30 )
3. The State has discretion to choose between Section 53-A and 57; the appointment of an Executive Officer is an administrative act, not quasi-judicial. (Para 7 , 8 , 9 , 10 , 11 , 12 , 13 )
4. Determination of a jurisdictional fact as a preliminary step to an administrative function does not render the act quasi-judicial unless the statute imposes a duty to act judicially. (Para 11 )
6. What is the legal distinction between action taken under Section 53-A and Section 57 of the C.P. and Berar Municipalities Act, 1922?
Section 53-A allows temporary appointment of an Executive Officer for up to 18 months without dissolving the committee. Section 57 allows for the drastic dissolution or supersession of the committee, requiring a reasonable opportunity for the committee to furnish an explanation. (Para 7 )
7. When is an act by a statutory authority considered quasi-judicial rather than administrative?
An act is quasi-judicial if the authority has legal authority to determine questions affecting rights and a duty to act judicially. If the decision is based on policy and expediency without a duty to act judicially, it is administrative. (Para 10 )
8. Does the requirement to determine an objective jurisdictional fact before exercising administrative power necessitate a judicial hearing?
No. Determining an objective fact as a preliminary step to an executive function does not make the act quasi-judicial or require a judicial hearing unless the statute expressly or impliedly imposes a duty to act judicially. (Para 11 )
Judgement
S. R. DAS, CJI. : There are two appellants in this appeal. The second appellant is the Municipal Committee of Dhamtari constituted under the C. P. and Berar Municipalities Act, 1922 (Act II of 1922) and the first appellant is its President having been elected as such on July 10, 1956. He assumed charge of his office as President on July 27, 1956. It may be mentioned that he was returned as a Congress candidate but has since been expelled from that party for having contested the last general election as an independent candidate against the Congress candidate.
2. It appears that there are two factions in the Municipal Committee. The first appellant alleges that one Dhurmal Daga, a member of the committee belonging to the Congress party was on August 7, 1956 detected importing within the municipal limits certain cloth without paying the octroi duty Dhurmal Daga, on the other hand, alleged that the first appellant was guilty of grave mismanagement of the affairs of the Municipal Committee and went on hunger strike for securing the appointment of a committee to enquire into the misconduct of the first appellant. Copies of the leaflets containing the demands and charges which are said to have been widely distributed are annexures I and II to the present petition. It appears that several persons and firms also preferred charges against the first appellant, the President of the Municipal Committee. The Collector Raipur personally intervened and persuaded the said Dhurmal Daga to abandon the fast on an assurance that he would look into the matter. The Collector deputed one Shri N. R. Rana the Additional Deputy Collector to enquire into the complaints of maladministration of the affairs of the Municipal Committee. By a Memorandum No. K/J N. P. Dhamtari dated August 24, 1956 the said N. R. Rana called upon the first appellant as the President of the second appellant to give detailed explanation of each complaint, a list of which was enclosed therewith. A copy of that memorandum along with its 22 enclosures is annexed to the petition and marked III. Annexures IV and V to the petition are copies of the detailed report on the objections and the reply to the charges made against the Municipal Committee submitted from the office of the Municipal Committee by the first appellant as the President of the Municipal Committee. The Additional Deputy Collector thereafter held the enquiry. The High Court states that it had "gone through the materials on which the State Government based its action on enquiry into the charges levelled against the Municipal Committee" and that the records of the enquiry showed that "on some occasions the petitioner was present during the enquiry". There is no suggestion that the appellants wanted an opportunity to adduce any evidence or were prevented from doing so or that they were in any way hampered in their defence. Presumably the Additional Deputy Collector had made a report which in due course must have been forwarded to the State Government.
3. On November 18, 1957 a notification was published in the Official Gazette whereby the State Government, in exercise of the powers conferred on it by S. 53-A of the C.P. and Berar Mnnicipalities Act, 1922 appointed one Shri B. P. Join, the second respondent before us, as the Executive Officer of the Municipal Committee, Dhamtari for a period of 18 months with certain powers as therein mentioned. A copy of that notification has been annexed to the petition and marked VIII but as the major part of the arguments canvassed before us turns on the contents of that notification the same is reproduced below in extenso :-
"Dated, Bhopal, the 18th November, 1957 No. 9262/11538-U-XVIII - Whereas it appears to the State Government that the Municipal Committee, Dhamtari, has proved itself incompetent to perform the duties imposed on it by or under the CENTRAL PROVINCES AND BERAR MUNICIPALITIES ACT , 1922 (II of 1922), inasmuch as it-
(a) granted grain and building advances to the
