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1952 Supreme(Raj) 8
Rajasthan High Court
Wanchoo, C.J.
Madhoram - Appellant
Versus
The State - Respondents
D.B. Civil Miscellaneous Writ, Case No. 62/1951
Decided On : January 10, 1952
Murlimanohar, Counsel, for Applicant; Mansharam, Government Advocate, for State
Headnote:Bikaner Municipal, Act, 1923, sec. 172—Order under is purely administrative.Municipal Boards—Supersession— Failure to call explanations, before mak-ing order—Validity of order depends whether section providing supersession provides for calling explanation or not.Constitution of India, Art. 226— Supersession, Board—Failure to call explanation before supersession-Validity of order.
An order of the Government passed under sec. 172 of the Bikaner Municipal Act, 1923, is a purely administrative act, and not quasi judicial. Absence of; words "in the opinion of the Government" from the section does not make any difference & the test to be appli-ed to an order under this section would still be subjective and not objective.
In cases where the order of the Government is of, an, administrative nature and the test is a subjective one and; the opinion of the Government is final, the question whether it is necessary that the board should be given an opportunity to explain before the order of supersession is passed depends upon the words of the section providing for supersession. If the section itself provides that the board should be given an opportunity to explain an order passed without giving an opportunity to the board to explain would be in excess of the powers and liable to correction under Art. 226 of the Constitution of India. B>n where the section does not provide for giving opportunity to the board to explain, an order without calling for an explanation from the board would not be open to attack on the ground that no explanation was called from the board, however desirable it might appear that a drastic order like that of supersession should not be passed without taking the explanation of the board.
Case Note
Municipal Board (Sardarshahar, Bika-ner)—Supersession—No explanation called from Board.
Bikaner Municipal Act, 1923 sec. 172, order under purely administrative—Sec. 172 does not provide for calling explanation from Board — Where order of Government final the question whether opportunity to explain should be given before order of supersession passed depends whether law requires Govt. to give such opportunity or not— Where law does not require, supersession without opportunity to explain cannot be questioned.
Natural justice, principle that opportunity should be given before adverse order is applicable only where act is judicial or quasi judicial.
2. The application was opposed by the State of Rajasthan. The case of the State is that there were constant complaints of maladministration by the Municipal Board and it was reported that there was embezzlement of Municipal funds. On receipt of these reports, the Government got the accounts audited by an Accounts Officer who reported that the affairs of the Board were in a very deplorable state. Thereupon, the Government deputed an accounts knowing man as Executive Officer for the Board but the President and the Board instead of co-operating with the said officer persistently put obstacles in his way and eventually suspended him, thus setting at naught the efforts of Government to improve the affairs of the Board. It is denied that Government was actuated by any base motive or that the order was mala fide. It was asserted that the order was passed after the Government was satisfied on reviewing the report of its own officer that the Board was persistently making default in the performance of its duties and was abusing its powers. As to giving an opportunity to the Board to explain, the reply of the State is that a copy of the Audit report was sent to the Board which, therefore knew of the specific instances of embezzlement that had been found. It was finally contended that the petitioner had an alternative remedy, namely, filing a suit and, therefore the application should be dismissed.
3. It will appear that there are two main points which have been urged in support of the application namely, (1) that the order was mala fide and (2) that the order was passed without giving a chance to the Board to explain and was therefore ultra vires.
4. So far as the question of mala fides is concerned, we are of opinion that the applicant has not established any case of mala fides. A perusal of the reply filed on behalf of the State makes it clear that there is no case of mala fides and (the applicant cannot succeed on that ground.
5. It is the second ground that has been particularly urged on behalf of the applicant namely, that the Board was not given an opportunity to explain the charges against it and, therefore, the order of supersession was ultra vires. We may in this connection set out sec. 172 of the Bikaner Municipal Act (Act No. VI of 1923) under which the order in question was passed. That section reads as follows—
172. (I) Should a board be incompetent to perform, or persistently make default in the performance of, the duties imposed on it by or under this or any other Act, or exceed or abuse its powers, His Highness Government may, with the previous approval of His Highness, by notification, in which the reasons for so doing shall be stated, declare the board to be superseded :
Provided that, in case of public emergency, such notification may be issued without the previous approval of His Highness but shall be forthwith reported to His Highness and shall be subject to His Highness orders."
6. It will be clear that this section does not specifically provide for calling for an explanation from the board before an order for its supersession is passed. Generally speaking, most municipal acts provide for such explanation being taken before an order of supersession is passed. For example, sec. 30 of the Uttar Prades
