Dr. Wasul Hasan vs State of U.P. and Others

G.C. Mathur and N.D. Ojha, J.—The Appellant is the elected Chairman of the Town Area Committee, Machhli Shahr, district Jaunpur. Proceedings u/s 7-A of the Town Areas Act, 1914, for his removal from the office of Chairman were started against him by the District Magistrate. The Appellant filed a writ petition in this Court challenging the proceedings on the ground that the District Magistrate was not empowered to initiate these proceedings and that the proceedings could only be initiated by the Prescribed Authority namely, the Commissioner. This contention did not find favour with the learned Single Judge, with the result that he dismissed the writ petition. Against the judgment of the learned Single Judge the Appellant has filed this appeal.

Section 7-A empowers the Prescribed Authority or, where an authority has not been prescribed, the District Magistrate to remove a Chairman. The Appellant relied upon a notification dated January 21, 1958, issued by the State Government, a copy of which is Annexure "2" to flu writ petition, whereunder the Commissioner was appointed as the Prescribed Authority, On the basis of this notification the Appellant contended that since a Prescribed Authority had been appointed, it alone could take action u/s 7-A and the District Magistrate could not take any action. The learned Standing Counsel has contended that upon a proper construction of this notification, the Prescribed Authority has only been conferred the powers which are enumerated in the notification and no other powers. His further contention is that since the power u/s 7-A is not mentioned in this notification, the Prescribed Authority has not been empowered to exercise power u/s 7-A. In our opinion, this contention is misconceived. The Prescribed Authority is defined in Section 2(6-A) to mean the authority notified as such by the State Government. The notification dated January 21, 1958, upon which the Appellant relied, is in these words:

No. 271-T/XXXIII-321-T. 57. In exercise of the powers conferred by Section 327 of the U.P. Municipalities Act, 1916 (II of 1916) as applied to the town areas in Uttar Pradesh, vide notification No. 4277-T/XXXIII-321-T-57, dated December 10, 1.957, the Governor of Uttar Pradesh is pleased to delegate to the Prescribed Authority, the following powers under the Town Areas Act, 191,4, and to appoint the Commissioner as the Prescribed Authority for purposes of exercising the same in respect of town areas within his-jurisdiction:

(1) power u/s 7-B to institute a suit for compensation against a member for loss, waste, or misappropri ation of Town Area Committee''s funds,

if such loss, etc. is a direct consequence of the neglect or misconduct of such member;

(2) powers u/s 15-B (2) and 15-B (3) to receive draft rules and to frame rules for the imposition of taxes except in respect of toll;

(3) power u/s 15-D to abolish or modify any tax except in respect of toll;

(4) power u/s 23(g) to declare any expenditure between Rs. 201 to Rs. 500 by Town Area Committee, as an appropriate charge on the town fund.

The Governor is further pleased to appoint the District Magistrate as the Prescribed Authority for exercising the power u/s 23(g) to declare any expenditure upto Rs. 200 by Town Area Committee as an appropriate charge on the town fund.

It is to be noticed that the notification has been issued u/s 327 of the U.P. Municipalities Act, as applied to the Town Areas. This section as applied to the town areas reads thus:

The State Government may by notification delegate to the Prescribed Authority in respect of any specified town area or town areas within Its jurisdiction any one or more of the powers vested in it by the Act.

Various provisions of the Act confer powers on the State Government to do various things and by Section 327 the State Government is authorised to delegate any one or more of these powers to the Prescribed Authority. The delegation of powers can only be to the Prescribed Authority.

Under the Act various sections directly (confer) powers upon the Prescribed Authority to do various things. Some of these provisions are contained in Sections 4, 15-A(5), 15-B, 17, 18 and 35, apart from 7-A. It will, thus, be seen that the Act confers powers on the Prescribed, Authority and the State Government is empowered to delegate the powers which the Act confers upon it to the Prescribed Authority. The Prescribed Authority, thus exorcises powers which are vested in it by the various provisions of the Act as well as powers vested in the State Government, which are delegated to it by the government. Examining the notification dated January 21, 1958, in the light of this fact, it appears that the notification is a composite one. It appoints the Commissioners as the Prescribed Authority for purposes of the Act. It then delegates certain powers vested by the Act in the State Government to the Prescribed Authority. The powers that are delegated to the Prescribed Authority are enumerated in Clauses (1), (2), (3) and (4). The enumeration of the powers in Clauses (l), (2), (3) and (4) only means that the powers under the sections mentioned in those clauses which vested in the State Government, have been delegated to the Prescribed Authority. In addition to these powers the Prescribed Authority can exercise all the powers which are exercisable by the Prescribed Authority under the provisions of the Act. It is incorrect to say that the Prescribed Authority can only exercise the powers enumerated in Clauses (1), (2), (3) and (4). These clauses, as already stated above refer only to the powers delegated by the State Government. The other powers, which vested in the Prescribed Authority by virtue of the various provisions of the Act, are exercisable by the Commissioner by virtue of the fact that he has been appointed the Prescribed Authority. We are, accordingly of opinion that the Commissioner, who was appointed the Prescribed Authority by the above mentioned notification is alone competent to exercise the powers u/s 7-A and in view of the language of that section, so long as there is a Prescribed Authority, the District Magistrate cannot exercise the power under this section. The view that we take finds support from the decision of a Division Bench of this Court in Notified Area Samthar v. Chetan Das Diwan Mal 1971 ALJ 227.

Since the District Magistrate, on account of the fact that the Commissioner has been appointed the Prescribed Authority, has no power to take action u/s 7-A against the Appellant, the proceedings initiated by him are'' without jurisdiction. We, accordingly, allow this appeal, set aside the judgment of the learned Single. Judge, allow the writ petition and quash the proceedings, initiated u/s 7-A against, toe Appellant by the District Magistrate The parties will bear their own costs of this appeal as well as of the writ petition.