Mahesh Jha vs The State of Bihar and Another

Ashwini Kumar Sinha, J.—In this application under Articles 226 and 227 of the Constitution of India the petitioner has prayed for quashing Annexures 2 and 4 to the writ case. By Annexure 2 the learned District Magistrate, Muzaffarpur (respondent No. 3) has terminated the service of the petitioner as Dafadar of Beat No. 2 of Mirapur Police Station. By Annexure 4 the learned Commissioner Tirhut Division, Muzaffarpur (Respondent No. 2) has affirmed the order of the learned District Magistrate. It appears that the post of Dafadar of this beat fell vacant in the month of July, 1976 on the death of one Ram Ekbal Singh. Thereafter, application for the post of Dafadar were filed and the petitioner and respondent No. 5 also applied for the post. It may be mentioned here that respondent No. 5 is the son of earlier Dafadar, Ram Ekbal Singh. The Superintendent of Police, Muzaffarpur (Respondent No. 4) to whom the power to appoint Dafadars was delegated by the District Magistrate, Muzaffarpur quite some time ago, appointed the petitioner to the post of Dafadar on the 18th of July, 1977 (vide Annexure 1 to the writ cases). Thereafter, respondent No. 5 went up in appeal before the District Magistrate Muzaffarpur. It seems that several dates were fixed by the District Magistrate, Muzaffarpur for hearing of the appeal. On 19.4.1978 the petitioner applied for time and the District Magistrate, Muzaffarpur, under the mistaken impression that the petitioner had been praying for time on earlier occasions also, although no such prayer had been made by the petitioner earlier, rejected the petitioner''s prayer and passed an ex-parte order without hearing the petitioner, and appointed respondent No. 5 as Dafadar. Against this order of the learned District Magistrate the petitioner moved the learned Commissioner, Tirhut Division, Muzaffarpur, who, by his order dated 25th February, 1981 dismissed the petition filed by the petitioner and affirmed the order of the learned District Magistrate, Muzaffarpur. It is pertinent to note here that on the date of admission of the revision application i.e. 19.8.1978 the learned Commissioner held as follows:--

I feel that the learned District Magistrate has been less than fair to the appellant on this point and I must allow him an opportunity to present his case. The appeal is, therefore, admitted.

Learned counsel for the petitioner has firstly submitted that the District Magistrate, the appointing authority u/s 35 of the Village Chaukidari Act, 1870 (Bengal Act VI of 1870) having delegated his power to appoint u/s 3-A of the Act to the Superintendent of Police and the delegatee (Superintendent of Police) having exercised that power and having appointed the petitioner to the post of Dafadar, the District Magistrate, the delegator could not sit in appeal over the order passed by the delegatee (Superintendent of Police) as it involved conflict of jurisdiction. Admittedly there is no power of appeal with the District Magistrate. Secondly, the learned counsel for the petitioner submitted that the initial defect in the order of the learned District Magistrate could not be cured in law by the learned Commissioner. Thirdly, the learned counsel has submitted that the appointment being valid substantive in character the petitioner could not be removed except complying with the provisions of Article 311 of the Constitution of India; and, lastly, the learned counsel has submitted that the petitioner having been removed on the ground of "residence" and "relationship", both the grounds, in law must be treated to be non-est and unconstitutional and has submitted that Rules 22 and 28 of the Bihar Chaukidari Manual should be interpreted in such a way that they do not abrogate the fundamental right.

As already stated above the District Magistrate, Muzaffarpur delegated his powers of appointing the Dafadars u/s 3-A of the Act to the Superintendent of Police, Muzaffarpur quite sometime ago. The petitioner has annexed the Standing Order (Annexure 3) to the writ case by which the delegation of power by the District Magistrate, Muzaffarpur, to the Superintendent of Police u/s 3-A of the Village Chaukidari Act, 1870 (Bengal Act VI of 1870) is clear and I may quote the relevant paragraphs there from which are as follows:--

In super session of previous orders and with the sanction of the Divisional Commissioner, I delegate u/s 3A of the Chowkidari Act (VI of 1870) to the Superintendent of Police and the Sub-divisional Officers the following powers exercised by the District Magistrate under the Act and the rules framed there under.

X X X X

(v) Power to appoint, punish, reward and dismiss Dafadars to the Superintendent of Police 3.

X X X X

We are not concerned with the delegation of such powers which concern the Sub-divisional Officers.

Learned counsel for respondent No. 5 has, on the other hand contended that there was no delegation on the facts of the instant case as, according to him the Village Chowkidari Act, 1870 stood repealed by the Bihar and Orissa Village Administration Act, 1922 (Bihar and Orissa Act 3 of 1922) except few sections and few schedules thereto. Learned counsel for respondent No. 5 relying on sub-section (2) of section 2 contended that on coming into force of the Bihar and Orissa Village Administration Act, 1922 (Bihar and Orissa Act 3 of 1922) Section 3-A of the Village Chaukidari Act, 1870 was repealed and, thus, he contended that the submission advanced by the learned counsel for the petitioner has no force. He drew my attention to Schedule III of the Act in order to support his contention that section 3-A of the Village Chaukidari Act had already been repealed. If the submission made by learned counsel appearing for respondent No. 5 was correct, then in fact, the submission advanced by the learned counsel for the petitioner had no force. But as would appear from the discussion hereafter, the submission advanced on behalf of the learned counsel for respondent No. 5 has no force.

Thus, the moot question to be decided is whether the Village Chaukidari Act, 1870 (Bengal Act VI of 1870) or any part of it stood repealed by the provisions of the Bihar and Orissa Village Administration Act, 1922 (Bihar and Orissa Act 3 of 1922). In order to decide this moot question it is relevant to quote few sections from the Bihar and Orissa Village Administration Act, 1922 which are as follows:

Section 2(2) When the provisions of Part 111 are in force in any union, the enactments specified in Schedule II shall from the date of the notification be repealed or amended to the extent and in the manner specified in the fourth column thereof.

Section 22. Extent of Part III --No provision contained in this part shall apply to any union unless and until it has been expressly extended thereto by the State Government by notification"

Section 23. Appointment of Dafadars and Chaukidars-Subject to the control of the Commissioner, the District Magistrate shall from time to time determine after consideration of the proposal of the Union Board the number of dafadars, if any, and chaukidars to be employed within each union, the salaries to be paid to them and the nature and cost of their equipment

In Schedule II it is stated as follows:

Enactments Repealed Or Amended When The Provisions of Part III Are In Force. See Section 2(2)

On perusal of sub-section (2) of section 2 and Sections 22 and 23 quoted above it is abundantly clear that the provisions of Part III of the Bihar and Orissa Village Administration Act, 1922 (Bihar and Orissa Act 3 of 1922) would come into force only from the date of notification, if any, and the power of appointment of the Dafadars would be with the District Magistrate only thereafter (as this section 23 falls in Part III of the Act).

Hence, in order to know exactly as to whether there has been a notification as contemplated by sub-section (2) of section 2 and Section 22 of the Act in the district of Muzaffarpur (with which we are concerned in the instant case) this Court, by its order dated 16th March, 1935, though at the hearing stage, directed the State of Bihar to file an affidavit as to whether the notification as contemplated u/s 22 of the Act (Act 3 of 1922) was published or not?

The State of Bihar has filed an affidavit on the 2nd April, 1983 and has categorically said as follows:--

Para 3, That I have verified from the official records and have come to the conclusion that no notification has been issued u/s 22 of the Bihar and Orissa Village Administration Act, 1922 giving force to Part 3 of that Act in the area of Muzaffarpur district.

Learned counsel appearing for respondent No. 5 relied upon the case of Rudal Rai vs. State of Bihar and others, (1956 BLJR 31) (which also was a case falling within the district of Muzaffarpur) and tried to persuade me to accept his submission that a mere reading of the judgment shows that 1922 Act was in force in the district of Muzaffarpur. I do not feel persuaded to accept the submission advanced on behalf of respondent No. 5. In this case there is nothing to show that the notification as contemplated by sub-section (2) of Section 2 u/s 22 of 1922 Act was there, and in absence of such a notification Part III of 1922 Act could not come into force, and the only logic 1 conclusion is that the 1870 Act still held the field. In the case of Rudal Rai vs. The State of Bihar and others (supra) relied upon by the learned counsel for respondent No. 5 there was no affidavit on behalf of the State of Bihar to the effect that the notification as contemplated under sub-section (2) of Section 2 u/s 22 of 1922 Act had been published. It seems that the parties in that case proceeded upon the assumption that Part III of 1922 Act had come into force. Thus, there is no force in the submission made by the learned lawyer for respondent No. 5.

Having, thus, rejected the submission made by the learned lawyer for respondent No. 5, I hold that the Village Chaukidari Act, 1870 Bengal Act VI of 1870) is still in force in the district of Muzaffarpur so far as the appointments of Dafadars are concerned.

This brings me now to consider the main argument advanced by the learned counsel for the petitioner. u/s 3-A of the Village Chaukidari Act the District Magistrate being the appointing authority was authorised to delegate his power to the Superintendent of Police for the appointment of Dafadars and in this case, as already stated, the Superintendent of Police, the delegatee, has in fact, exercised that delegated power and appointed the petitioner as the Dafadar of Minapur beat No. 2 in place of Dafadar Ram Ekbal Singh (deceased) by his order dated 18th July, 1977.

On general principles of delegation, it is well settled that the delegated authority, by the mere act of delegation, does not completely denude itself of his powers. As pointed by Lord Coleridge, C.J. in Huth v. Clarke, (1980) 25 Q.B.D. 391 (39):

But delegation does not imply a denudation of power and authority, the 6th Schedule of the Act provides that the delegation may be revoked or altered and the powers resumed by the executive committee. The word ''delegation'' implies that powers are committed to another person or body which are as a rule always subject to resumption by the power delegating, and many examples of this might be given. Unless, therefore, it is controlled by statute, the delegating power can at any time resume the authority. Here the executive committee has exceeded the power which the subcommittee might have exercised- but did not-and no question of conflict of jurisdiction arises.

The general principles that the statutory authority is not completely divested of its functions after delegating the same to another authority will always prevail, but the authority to whom the functions are delegated, is not, in exercise of the functions delegated, a subordinate authority of the delegating authority, and, in the absence of express provisions in the rules, the delegating authority will have no power to revise, modify or cancel any valid order passed by the delegated authority.

(See the case of Ram Pravesh Prasad and 4 Others Vs. Kailash Singh and 10 Others )

I may usefully quote some extracts from Smith''s Judicial Review of Administrative Action (4th Edition) page 301-3;

Nevertheless, it has sometimes been stated that delegation implies denudation of authority. This can not be accepted as an accurate general proposition. On the contrary, the general rule is that an authority which delegates its powers does not divest itself of them-indeed, if it purports to abdicate it may be imposing a legally ineffective fetter on its own discretion and can resume them. But if it has validly delegated an executive power to make decision, it will normally be bound by a particular decision conferring rights on individuals (and possibly one derogating from those rights), made in pursuance of the delegated power and will be incapable of rescinding or varying it,--

The question about the power of the delegator, after the power was delegated to the delegatee and the delegatee having exercised that power came into consideration in the case of Roop Chand Vs. State of Punjab, . This case was in connection with the power of the State Government to hear appeal after the State Government had delegate its power to a subordinate officer in connection with a case under East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act and by a majority judgment the Supreme Court held as follows:--

Where the State Government has, u/s 41(1) of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1918, delegated its power given u/s 21(4) to hear appeals to an officer, an order passed by such officer is an order passed by the State Government itself, and not an "order passed by any officer under this Act" within the meaning of section 42. The order contemplated by section 42 is an order passed by an officer in his own right and not as a delegatee. The State Government, therefore, is not entitled u/s 42 to call for and examine the record of the case disposed of by the officer acting as delegate. An order passed by the State Government u/s 42 in such a case is a nullity and deserves to be set aside

I hold that though the delegator, on general principle, can resume his power but once the delegator validly delegates his power to the delegatee and the delegatee exercised that power, the power exercised by the delegatee is that of the delegator himself and hence the delegator has no power thereafter to revoke the order passed by the delegatee. In the instant case, the Superintendent of Police, delegatee having exercised the delegated power of the District Magistrate u/s 3-A of 1870 Act, the order passed by the Superintendent of Police which is Annexure 1 to the writ case could not be revised by the District Magistrate as, it would be deemed to have been passed by District Magistrate himself. In this view of the law, the order passed by the District Magistrate on the application filed by respondent No. 5 dated 19.4.1978 by which the appointment of the petitioner as Dafadar was terminated, was a complete nullity and is hence quashed. If this order of the District Magistrate (Annexure 2) was a nullity in law, the order of learned Commissioner dated 25.2.1981 (Annexure 4) was also non est in law and cannot be treated as an act of ratification. That order of the learned Commissioner dated 25.2.1981 (Annexure 4) also fails and is quashed.

In my opinion there is nothing on the record to suggest that the delegatee i.e. the Superintendent of Police has, acted in excess of his jurisdiction or has acted mala fide.

As the application succeeds on the very first submission advanced by the learned counsel for the petitioner, I do not think it necessary to deal with other three submissions (stated above) advanced by the learned counsel for the petitioner.

In the result, Annexure 2, order of the learned District Magistrate, Muzaffarpur terminating the service of the petitioner as Dafadar of Minapur Beat No. 2 and Annexure 4 order of the learned Commissioner upholding the order of the learned District Magistrate, are hereby quashed. In the result, this application is allowed, but in the circumstances of the case there will be no order as to costs.