NANDKISHORE s/o MOHANLAL LAHOTI vs STATE OF MAHARASHTRA

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2006 Supreme(Bom) 1256

IN THE HIGH COURT OF BOMBAY
N. V. Dabholkar and M. G. Gaikwad, JJ.

NANDKISHORE s/o MOHANLAL LAHOTI - Appellant
vs.
ST ATE OF MAHARASHTRA and others - Respondent
Advocate Appeared
For petitioner: V. D. Sapkal
For respondent No.1: Dilip Bankar Patil, AGP For respondents No.2 to 4: S. T. Shelke
In W. P. No. 5/38 of 2006 :
For petitioner: A. S. Bayas
For respondent No.1: l. S. Gavane, AGP For respondent Nos. 2 and 3 : S. T. Shelke None for respondent No.4.

Headnote:Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act (40 of 1965) - Section 10-A(2) - Election of municipal council - Delegation of powers and functions by State Election Commissioner to Collector - Sub-delegation of powers by Collector to Sub-Divisional Officer - Not permissible - Delegatee cannot be sub-delegate his powers. - As regards delegation of the powers of hearing, there is specific provision under sub-section (2) of Section 10-A which empowers to the Collector to delegate his powers of hearing of objections to the officers of the State Government not below the rank of the Deputy Collector. In the present matters, those powers have been delegated to the Collector. There was no prohibition on the Commissioner to delegate the powers of hearing to the Deputy Collectors as is permissible under sub-section (2) of Section 10-A of the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, but the Commissioner delegated these powers to the Collectors. The Collectors further delegated their powers of hearing to respective Sub-Divisional Officers. Delegatee cannot sub-delegate his powers. The act of the Collectors to authorize the Sub-Divisional Officers to hear the objections amounts to sub-delegation to them by the State Election Commissioner. In the present matters, no one has raised dispute about Election Commissioner’s powers to delegate his powers in certain matters. The State Election Commissioner delegated his powers to the Collector in respect of hearing the objections; however, the Collector sub-delegated his powers to the Sub-Divisional Officers. Said act of the Collector is not permissible. Hence, the orders passed in both the matters by the Sub-Divisional Officers are not sustainable as they are not the officers to whom the State Election Commissioner delegated powers to hear the objections.
       Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965 - Sections 5 and 10-A(4) - Municipal Councils - Elections of - Power of State Election Commissioner - Empowered to delegate any of his powers and functions to officers of State Government - Not below rank of Deputy Collector - A delegate cannot sub-delegate his powers. - All elections to the Municipal Councils vest in the State Election Commissioner. Sub- section (2) of Section 10-A empowers the State Election Commissioner to, by order, delegate any of his powers and functions to any officer of the Commission, or any officer of the State Government not below the rank of "Deputy Collector or the Chief Officer of a Council". Sub- section (3) of Section 10-A specifies that all such officers and the staff appointed by the Commission for preparation of electoral rolls and conduct of elections of Municipal Councils under the Act or the Rules shall function under the superintendence, direction and control of the State Election Commissioner.
       Delegate cannot sub-delegate his powers. The act of the Collectors to authorize the Sub-Divisional Officers to hear the objections amounts to sub-delegation of their powers which powers were delegated to him by the State Election Commissioner.

JUDGMENT

M. G. GAIKW AD, J. :- Heard learned counsel, appearing for the respective parties in both writ petitions.

2-3. Rule. Rule is made returnable forthwith, with the consent of learned sel, appearing for respective parties, both these petitions are heard finally decided.

4. These two writ petitions are decided by this common judgment as on question of law as to "whether a delegatee can sub-delegate his powers to other authority" arises in these matters.

5. By preferring Writ Petition No. 4923/2006, the petitioner seeks relief to h and set aside the order dated 30-5-2006 passed by the Collector, Argungabad delegating the powers of hearing to the Sub-Divisional Officer, angabad, as well as to quash and set aside the order dated 19-6-2006 passed the Sub-Divisional Officer, Aurangabad, rejecting the objections filed by the petitioner.

In Writ Petition No. 5138/2006, the petitioner challenged the order dated 2006 passed by the Sub-Divisional Officer, Selu, District Parbhani, rejecting objections filed by the petitioner and claims a relief to quash and set aside the same.

6. The factual aspects in both these petitions are summarized as under.

The petitioner in Writ Petition No. 4923/2006 is an elected Councillor of Municipal Council, Paithan. Municipal Council, Paithan is a "c" class Municipal Council. The General Elections of the said Council are due in the month of ember, 2006. The State Election Commission, on 3-5-2005, published notification, exercising the powers conferred on it under Article 243-ZA of the institution of India, delegating his powers to the District Collectors in the State Maharashtra for preparation of drafts of wards of the Municipal Councils in State of Maharashtra, as per provisions of sections 5, 10 and 10A(4) of the arashtra Municipal Councils, Nagar Panchayats and Industrial Townships t, 1965 (hereinafter referred to as "the Act"). Under clause (9) of the said notification, it was declared that for "c" class Municipal Councils, the Collector the Officers authorized by him were empowered to hear objections for

institution of the wards and after hearing the said objections, further powers re vested to the Divisional Commissioners to publish the notification/s about e wards constituted. By another Notification dated 12-5-2006, the Collector called objections from the citizens in relation to the constitution of wards and the reservation thereof for various categories of the citizens. In pursuance said notification, the petitioner filed his objections on 19-5-2006 bet Collector and raised certain objections for reservation of various wards main objection was that the geological conditions as well as population were not considered while constituting different wards and reserving the s different categories. The Sub-Divisional Officer, Aurangabad, by his order 19-6-2006, rejected the said objections and submitted his final notification Divisional Commissioner. These objections were alleged to have been h the Sub-Divisional Officer by the order of the Collector dated 30-5-2006.

Feeling aggrieved with the rejection of objections, petitioner pr present writ petition and claimed relief to quash the order passed Collector, delegating his powers to the Sub-sub-divisional Officer as well orders passed by the Sub-Divisional Officer.

The petitioner, in Writ Petition No. 5138/2006, while challenging the of the Sub-Divisional Officer, Selu, dated 1-6-2006, came with a case the No. 14 of Pathri Municipal Council is reserved for Scheduled Tribes thought is no population of that tribe in the said ward. This objection was raised petitioner before the Collector; however; the Collector, who was empower the State Election Commission, instead of personally hearing those object delegated his powers to the Sub Divisional Officer, Selu. The Sub-Diy Officer, Selu rejected the objections illegally without consideration genealogical conditions of the ward as well as without following population while reserving the ward.

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2006 Supreme(Bom) 1256

Cases Referred (6)