Full Judgment Text
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PETITIONER:
GODDE VENKATESWARA RAO
Vs.
RESPONDENT:
GOVERNMENT OF ANDHRA PRADESH AND OTHERS
DATE OF JUDGMENT:
11/10/1965
BENCH:
SUBBARAO, K.
BENCH:
SUBBARAO, K.
MUDHOLKAR, J.R.
BACHAWAT, R.S.
CITATION:
1966 AIR 828 1966 SCR (2) 172
CITATOR INFO :
RF 1973 SC2720 (9)
F 1976 SC 578 (33)
R 1982 SC 149 (962)
RF 1991 SC2160 (31)
ACT:
Andhra Pradesh Panchayat Samithis and Zilla Parishads Act
(35 of 1959), ss. 62 and 72-Scope of-Rules under-Validity
of.
Constitution of India, 1950, Art. 226-Who can file petition
under.
HEADNOTE:
In order to promote rural welfare, the respondent had given
administrative directions for dividing districts into Blocks
and for the appointment of Block Planning and Development
Committees. In pursuance of those directions, a primary
health centre was inaugurated in a village in November 1958
in accordance with the resolution of the Block Planning and
Development Committee. One of the conditions which the
village had to comply with was that it should give 2 acres
of land free and a cash contribution of at least Rs. 10,000.
Since the amount was not paid by the village, the Block
Planning and Development Committee, resolved to shift the
primary health centre to another village with the consent of
the representatives of the first village. The second
village chosen, satisfied the condition regarding land and.
cash contribution on 27th July 1959 and thereafter, on 31st
July 1959 the first village also satisfied the condition.
In August 1959 the Committee by a resolution decided to
locate the contra at the second village, but the respondent
directed that the matter should be decided by the Panchayat
Samithi, as by the time, the Andhra Pradesh Panchayat
Samithis and Zilla Parishads Act, 1959 had come into force
and a Panchayat Samithi had been established for the
concerned Block. Though in May 1960, the Panchayat Samithi
at first resolved to have the centre at the first village,
and though the said resolution was approved by the
respondent, the Panchayat Samithi finally, by its resolution
on 29th May 1961, cancelled its earlier resolution and
resolved to locate the centre at the second village. On 7th
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March 1962, the respondent set aside the resolution of May
1961 of the Panchayat Samithi on the ground that it did not
get the requisite support of 2/3rd majority. On 18th April,
1963, the respondent reviewed its previous order on the
ground that the saki order was made under a mistaken
impression that the health centre was permanently located at
the first village, and directed that the centre should be
located in the second village.
The appellant, who was the representative of the first
village in all the proceedings, filed an application before
the High Court under Art. 226 of the Constitution for
quashing the Government order dated 18th April 1963. The
petition was dismissed by the High Court.
In appeal to this Court, the appellant contended that : (i)
Assuming the first Government order dated 7th March 1962 was
made under s. 72(1) the impugned order dated 18th April,
1963 reviewing the first, was invalid: in as much as the
prerequisite for the exercise of the power of review,
namely, the existence of a mistake of fact or law or the
ignorance of any material fact, was not satisfied, (ii) the
first Government order was made under s. 62 of the Act, and
therefore could not be reviewed by the impugned order under
s. 72 and (iii) the impugned order was invalid, because it
was made without giving an opportunity to the party
prejudiced thereby. The respondent raised a preliminary
objection that the appellant
173
had no personal right in the matter and therefore had no
locus stand to file the application, and also urged, that
the impugned order was neither made under s. 62 nor under s.
72. of the Act, but that it was really passed under the
rules made by the respondent in exercise of the power
conferred on it under s. 69 of the Act read with s. 18(2)
and that therefore, no question -of review would arise at
all as the respondent passed the final order in regard to
the location of the health centre.
HELD : (i) The appellant had the right to maintain the
application.
Ordinarily, the petitioner who seeks to file an application
under Art. 226 should be one who has a personal or
individual right in the subject matter of the petition. The
personal right need not be in respect of a proprietary
interest : it can also relate to an interest of a trustee.
In exceptional cases, a person who has been pre-judicially
affected by an act or omission of an authority can file a
petition even though he has no proprietary or even fiduciary
interest in the subject-matter. The appellant was the
president of the Panchayat Samithi of the first village. He
was also the president of a committee for collecting
contributions from the villagers for setting up the health
Centre. His conduct, the acquiescence on the part of the
members of the committee, and the treatment meted out to him
by the authorities, support the inference that he was
authorised to act on behalf of the committee which was in
law, the trustee of the amounts collected. The appellant,
therefore, had been prejudiced by the impugned order and his
petition under Art. 226 was maintainable. [181 F]
(ii)A reading of s. 18 of the Act with the Schedule shows
that under the Act the statutory power to establish and
maintain primary health centers is vested in the Panchayat
Samithi, and there is no provision vesting the said power in
the Government. Under s. 69 of the Act, the Government can
only make rules for carrying out the purposes of the Act; it
cannot under the guise of rules, convert an authority with
power to establish a primary health centre into only a
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recommendatory body. It cannot, by any rule, vest in itself
a power which under the Act vests in another body. It is
one thing to say that the exercise of the power by the
Samithi is regulated by the rules, but another thing, to
deprive it of that power in the matter of location of the
health centre and confer that power on the Government.
Therefore, the Rules, in so far as they make the Panchayat
Samithi a mere recommendatory body, are inconsistent with
the Act, and so the impugned order could not be sustained
under the authority of the Rules [183 F]
(iii)Assuming that the first order was made under s. 72(1)
the respondent was right when it said in the impugned order,
that it made a mistake of fact in passing its earlier order
on a misapprehension that there was a permanent location of
the centre at the first village. The centre was never
permanently located in the first village, it was only
located’ there subject to certain conditions which were not
fulfilled [188 F]
(iv)But, an analysis of the first order of the respondent
demonstrates that it was nothing more than a cancellation of
the resolution passed by the Samithi on 29th May 1961. The
fact that the word "cancel" is not used and s. 62 was not
mentioned in the order could not make it anytheless an order
cancelling the resolution. Therefore, the order was, one
made under s. 62 and could not be reviewed by the impugned
order under s. 72. [187 A-B]
Section 62 confers a special power on the Government to
cancel a, resolution passed by the Samithi, by an order in
writing, if in its opinion;
174
such resolution is not legally passed or is in excess or
abuse of the power conferred by the Act, after giving to the
Samithi an opportunity for explanation. Section 72(1)
confers a wide power of revision on the Government. On the
principle of general a specialities non derogant the case
provided for under s. 62 must be excluded from the operation
of s. 72. It follows that the order reviewed fell under the
scope of s. 62 and that in could not be reviewed under s.
72, for s. 72(3) enables the Government only to review an
Order made under s. 72(1). Further, the impugned order
could not be sustained as being itself an order under s. 62
of the Act. The respondent, in exercise of that power,
cancelled the resolution of the Samithi by its earlier
order, and therefore qua that order had become functus
officio. It could not be review not could s. 13 of the
Madras General Clauses Act, 1891 be invoked, because, that
section, which enables the Government to exercise its power
from time to time as occasion requires. cannot apply to an
order made in exercise of a quasi-judicial power under s.
62. [184 H-158 B; 187 D-E]
(v) Since the impugned order was made without giving an
opportunity as required by s. 72 to the appellant or to the
committee, who were the representatives of the first
village, and who were prejudicially affected by it, the
order was bad. [189 A-B]
The High Court, however, rightly refused to exercise its
"extraordinary discretionary, power because, if it had
quashed the impugned order. it would have restored the
illegal order of 7th March 1962. That order was also
illegal because it was made without giving notice to the
Panchayat Samithi is required by s. 62. [189 E]
JUDGMENT:
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CIVIL APPELLATE JURISDICTION : Civil Appeal No. 755 of 1965.
Appeal by special leave from the judgment and order dated
September 7. 1964 of the Andhra Pradesh High Court in Writ
Appeal No. 8 of 1964.
S. T. Desai, N. V. Suryanarayana Murthy,R. Thiagarajan
and K. Jayaram, for the appellant.
P. Ram Reddy and A. V. Rangam, for respondent No. 1.
S. V. Gupte, Solicitor-General and A. V. V. Nair, for
respondent No. 4.
The Judgment of the Court was delivered by
Subba Rao, J. This is an appeal by special leave against the
judgment of a Division Bench of the Andhra Pradesh High
Court in a Letters Patent appeal confirming that of a single
Judge of that Court dismissing a petition filed by the
appellant under Art. 226 of the Constitution for issuing a
Writ of certiorari quashing the order of the Government of
Andhra Pradesh dated April 18, 1963, under s. 72 of the
Andhra Pradesh Panchayat Samithis and Zilla Parishads Act,
1959, (Act No. XXXV of 1959), hereinafter called the Act.
175
At the outset it will be convenient to survey the facts
leading up to this appeal in their chronological order. For
the promotion of rural welfare, the Government of Andhra
Pradesh initiated Community Development Programme in the
said State. Pursuant to that Programme, each district in
the State was divided into Blocks, called Community
Development Blocks. Chintalapudi Taluk in the West Godavari
District was one of such Blocks. A Block Planning and
Development Committee was appointed for each Block and a
District Planning and Development Committee for each
district. All this was done by the Government by issuing
administrative directions; indeed, the said Committees were
only advisory bodies and the ultimate power vested in the
Government. One of the activities of the said Committees
was to constitute Primary Health centres in each district.
On March 22, 1957, the Government of Andhra Pradesh issued a
notification laying down broad principles for guidance in
the selection of places for the location of Primary Health
Centres. One of the said principles relevant to the present
enquiry may be noticed at this stage and that is, the
village selected for locating such Centre was expected to
give 2 acres of site free and 50% cash contribution which
would not be less than Rs. 10,000/-. On April 8, 1958, the
Block Planning and Development Committee, Chintalapudi,
resolved unanimously, modifying its earlier resolution, to
have the Primary Health Centre at Dharmajigudem village, as
there were High Schools and education facilities there. On
November 7, 1958, the Collector of the District formally
inaugurated the Primary Health Centre at Dhanmajigudem. On
July 11, 1959, the said Committee passed two resolutions,
among others. Under resolution 3 it recorded with
appreciation the donation of 50 cents of land by
Achyutharamaiah, the Block Committee Member, towards site
for the Primary Health Centre to be located at Dharmajigudem
and appealed to the members of the Block Committee to see to
the remittance of the cash contribution of Rs. 10,000/-
immediately. Presumably because that something happened at
the meeting immediately after the said resolution was passed
indicating that there would be no response in that
direction, another resolution was passed by the said
Committee recording that, as the villagers of Dharmajigudem
had failed to pay the said contribution for the last 8
months, the Primary Health Centre located in that place be
shifted to and established permanently at any other suitable
village where land and cash contributions were forthcoming.
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On July 13, 1959, i.e., 2 days after the aforesaid
resolution, the Block Development Officer wrote a letter to
the appellant, who was the President of the village
panchayat, inform-
17 6
ing him that he had not taken any steps for the realization
of the contribution so far and that if the required
contribution was not realized before the end of the month
steps would be taken -to shift the Primary Health Centre to
some other place. It may be noticed at this stage that the
Block Development Officer, who had to implement the
resolution of the Committee, had outstand his powers in
writing a letter in derogation of the terms of the
resolution of the Committee dated July 11, 1959. On July
16, 1959, the appellant and others of Dharmajigudem informed
the Block Development Officer that it was not possible for
them to collect the amount and that there was no objection
to the shifting of the Centre from their village to any
other place. On July 17, 1959, the Block Development
Officer wrote to the people of Dharmajigudem that as they
were unable to pay the said amount, the said Centre would be
shifted to Lingapalem. On July, 27, 1959, the 4th
respondent, Rangarao, representing Lingapalem village
deposited Rs. 10,000/- with the Block Development Committee
and also donated 2 acres of land for the purpose of locating
the said Centre in the said village. On July 31, 1959, on
behalf of Dharmajigudem, Venkateswara Rao, the appellant,
deposited the sum of Rs. 10,000/- in the Sub-Treasury and K.
V. Krishna Rao donated 2 acres of land and delivered
possession of the same to the Block Development Officer. On
August 14, 1959, the said Committee, after reviewing the
previous history of the location of the Primary Health
Centre and after noticing that both the villages deposited
the amount-one on July 27, 1959 and the other on July 31,
1959-and after considering the competing claims, resolved
unanimously to have the Primary Health Centre located
permanently at Lingapalem and to request the authorities
concerned to shift it from Dharmajigudem to Lingapalem at an
early date. One important fact to be noticed in this
resolution is that it was recorded therein that the
representatives of Dharmajigudem assured the representatives
of Lingapalem that they not only gave up their efforts to
have the Primary Health Centre at Dharmajigudem but also
unanimously agreed to have it located at Lingapalem. It was
further recorded therein that the villagers of Lingapalem
paid up the entire contribution enthusiastically and that
too after obtaining the concurrence of the villagers of
Dharmajigudem and also on an assurance that the latter gave
up the idea of having the Primary Health Centre at
Dharmajigudem. It would, therefore, be noticed that this
resolution for locating the Primary Health Centre at
Lingapalem was passed after the representatives of the two
villages settled their disputes. On September 18, 1959, the
Act came into force and under s. 3 thereof a
177
Panchayat Samithi was constituted for Chintapudi. On January
7, 1960, the Government informed the Collector of West Goda-
vari District that the question of shifting the Primary
Health Centre from Dharmajigudem to Lingapalem should be
left to the decision of the Panchayat Samithi constituted
under the Act. The President of the Panchayat Samithi,
Chintalapudi Block, was requested to place the resolution
dated August 14, 1959, of the Block Planning and Development
Committee before the Panchayat Samithi for reconsideration
and submit a report to the Government through the Chairman,
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Zilla Parishad, West Godavari. It may be noticed that after
the passing of the Act, what was being done administratively
was sought to be placed on a statutory basis. On May 28,
1960, the Chintalapudi Panchayat Samithi held its meeting
and resolved that the Primary Health Centre should be
permanently located at Dharmajigudem; and the said
resolution was communicated to the Government. On July 6,
1960, the Government approved the proposal of the
Chintalapudi Panchayat Samithi to locate the Primary Health
Centre permanently at Dharmajigudem. On January 23, 1961,
the Rules framed by the Government in exercise of the powers
conferred on it under s. 69 of the Act came into force. On
February 22, 1961, on a representation made to the
Government that the meeting of the Panchayat Samithi held on
May 28, 1960, was irregular on the -round of inadequate
notice, the Government decided not to interfere with those
proceeding under s. 72 of the Act. On May 12, 1961, the
Panchayat Samithi at a special meeting, on the ground that
the meeting held on May 28, 1960, was not held in accordance
with r. 4(1) of the Rules for the conduct of business, in
exercise of the power given to it under r. 15 thereof,
cancelled all the resolutions passed by the meeting of the
Samithi on May 28, 1960. On May 29, 1961, the Samithi
passed another resolution adopting all the resolutions which
it cancelled on May 12, 1961, except the resolution to
locate the Primary Health Centre at Dharmajigudem. In
regard to the location of the said Centre it resolved to
locate it at Lingapalem. On March 71, 1962, the Government
made an order holding that there was no valid reason for
shifting the Primary Health Centre from Dharmajigudem to
Lingapalem and directing the Block Development Officer to
take action accordingly. The main reason given for that
order was that the Primary Health Centre was already func-
tioning at Dharmajigudem and a Health Centre once
established should not be shifted to another place within
the Block unless the Panchayat Samithi resolved by two-
thirds majority of the members present at the meeting as
required under r. 7 of the Rules
178
and that the resolution dated May 29, 1961, was not
supported by the requisite majority. On April 18, 1963,
i.e., about a year after the earlier order, the Government
passed another order wherein it held that it passed the
previous order dated March 7, 1962, on a mistaken impression
that it was a case of shifting the Primary Health Centre
from one place where it was permanently located to another,
while the correct position was that in the instant case the
Primary Health Centre was not permanently located by the
Government and, therefore, the resolution passed by the
Panchayat Samithi on May 29, 1961, fell within r. 2 of the
Rules and not under r. 7 thereof. In that view, it directed
that the said Centre should be located permanently in
Lingapalem village in accordance with the resolution of the
Panchayat Samithi dated May 29, 1961.
A resume of the said facts leads to the following factual
position. Before the Act came into force, the Primary
Health Centre was inaugurated at Dharmajigudem presumably
subject to the condition that the said village would comply
with the conditions laid down by the administrative
directions, governing the location of a Centre. One of the
important conditions was that the village seeking to have
the Centre should give 2 acres of land free and 50% cash
contribution which would not be less than Rs. 10,000/-. The
said amount was not paid by Dharmajigudem village with the
result the condition was not complied with. With the
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consent of the representatives of the village of Dharmaji-
gudem, the Block Planning and Development Committee resolved
to shift the Primary Health Centre from Dharmajigudem to
Lingapalem. The Lingapalem village satisfied the conditions
on July 27, 1959. Thereafter, Dharmajigudem village also
satisfied the said conditions on July 31, 1959. On August
14, 1959, the said Committee by a resolution decided to
locate the Centre at Lingapalem, but the Government directed
the matter to be decided by the Panchayat Samithi, as by
that time the Act had come into force and the Panchayat
Samithi for the Block had been established. Though on May
28, 1960, the Panchayat Samithi at first resolved to have
the Centre at Dharmajigudem and though the said resolution
was approved by the Government, the said Panchayat Samithi
finally by its resolution dated May 29, 1961, cancelled its
earlier resolution and resolved to locate the Centre it
Lingapalem. On March 7, 1962, under s. 62 of the Act the
said resolution of the Panchayat Samithi was set aside by
the Government on the ground that it did not get the
requisite support of two-thirds majority. But on April 18,
1963, the Government reviewed its previous order, under s.
72 of the Act, on the ground
179
that the said order was made under a mistaken impression
that the Primary Health Centre was permanently located at
Dharmajigudem and directed the Centre to be located at
Lingapalem. It will, therefore, be seen that though the
Health Centre was formally inaugurated at Dharmajigudem
before the Act came into force, there was not and could not
have been a permanent location of the Centre at that place,
as the condition precedent was not compiled with. After the
Act came into force, though the Panchayat Samithi at first
approved of the location of the Centre at Dharmajigudem, it
cancelled the resolution and decided to locate it at
Lingapalem. The Government, on a misapprehension of fact,
set aside that order, but when it came to know of the
mistake it reviewed its earlier order and directed the
location of the Centre at Lingapalem. The question is
whether on these facts the Government had jurisdiction to
make the order which it did in exercise of its powers under
s. 72 of the Act.
The appellant, who was the representative of the village of
Dhartnajigudem in all the said proceedings, filed an
application before the High Court under Art. 226 of the
Constitution for quashing the said order of the Government.
The said application was, in the first instance, heard by a
single Judge of the High Court and he dismissed it. On
appeal, a Division Bench of the High Court confirmed it.
Hence the appeal.
Mr. Desai, learned counsel for the appellant, raised before
us the following points : (1) The order of the Government
cancelling the resolution dated May 29, 1961, was made under
s. 62 of the Act and, therefore, the said order could not be
reviewed under s. 72 thereof. (2) Assuming that the said
order dated March 7, 1962, was made under s. 72(1) of the
Act, the order dated April 18, 1963, reviewing the said
order was invalid inasmuch as the prerequisite for the
exercise of the power of review thereunder, namely, the
existence of a mistake of fact or law or the ignorance of
any material fact, was not satisfied. (3) The order dated
April 18, 1963, was also invalid, because it was made
without giving an opportunity to the party prejudiced
thereby of making a representation against the making of the
said order.
Mr. Ram Reddi, learned counsel for the State of Andhra Pra-
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desh, raised a preliminary objection that the appellant had
no personal right in the matter of the location of the
Primary Health Center and, therefore, he had no locus stand
to file an application under Art. 226 of the Constitution.
lie argued that the order of the Government dated March 7,
1962, was not simply a cancella-
180
lion of a resolution made by the Panchayat Samithi, but a
composite order giving directions to the Block Development
Officer and, therefore, it fell directly within the scope of
s. 72 of the Act; and, as the said order was made under a
misapprehension that there was a permanent location of the
Health Centre at Dharmajigudem, the Government had
jurisdiction to review the same under S. 72(3) of the Act.
He would further contend that even if the order dated March
7, 1962, was passed under s. 62 of -the Act, the said order
being an administrative one, the Government had jurisdiction
to review the same under s. 62 itself when the mistake was
discovered or brought to its notice. In addition he raised
before us a new point which was not argued either before the
single Judge or, on appeal, before the Division Bench. of
the High Court. He would say that the impugned order was
neither made under s. 62 or under S. 72 of the Act, but it
was really passed under the relevant Rules made by the Gov-
ernment in exercise of the power conferred on it under s. 69
of the Act, read with sub-s. (2) of s. 18 thereof,
where under the ultimate authority under the Act to locate
the Health Centre was the Government, though on the
recommendation of the Panchayat Samithi. In this view, the
argument proceeded, no question of review would arise at
all, for the Government passed the final order in regard to
the location of the Primary Health Centre at Lingapalem.
The learned Solicitor General, appearing for the 4th respon-
dent, supported Mr. Ram Reddi on all the points and further
elaborated that aspect of the argument which related to the
construction of the order made by the Government on March 7,
1962.
The first question is whether the appellant had locus standi
to file a petition in the High Court under Art. 226 of the
Constitution. This Court in The Calcutta Gas Company
(Proprietary) Ltd. v. The State of West Bengal(1), dealing
with the question of locus standi of the appellant in that
case to file a petition under Art. 226 of the Constitution
in the High Court, observed
"Article 226 confers a very wide power on the
High Court to issue directions and writs of
the nature mentioned therein for the
enforcement of any of the rights conferred by
Part III or for any other purpose. It is,
therefore, clear that persons other than those
claiming fundamental right can also approach
the court seeking
(1) [1962] Supp. 3 S.C.R. 1, 6.
181
a relief thereunder. The Article in terms
does not describe the classes of persons
entitled to apply thereunder; but it is
implicit in the exercise of the extraordinary
jurisdiction that the relief asked for must be
one to enforce a legal
right........................ The right that
can be enforced under Art. 226. also shall
ordinarily be the personal or individual right
of the petitioner himself, though in the case
of some of the writs like habeas corpus or quo
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warranto this rule may have to be relaxed or
modified."
Has the appellant a right to file the petition out of which
the present appeal has arisen ? The appellant is the
President of the Panchayat Samithi of Dharmajigudem. The
villagers of Dharmajigudem formed a committee with the
appellant as President for the purpose of collecting
contributions from the villagers for setting up the Primary
Health Centre. The said committee collected Rs. 10,000/-
and deposited he same with the Block Development Officer.
The appellant represented the village in all its dealings
with the Block Development Committee and the Panchayat
Samithi in the matter of the location of the Primary Health
Centre at Dharmajigudem. His conduct, the acquiescence on
the part of the other members of the committee, and the
treatment meted out to him by the authorities concerned
support the inference that he was authorized to act on
behalf of the committee. The appellant was, therefore, a
representative of the committee which was in law the
trustees of the amounts collected by it from the villagers
for a public purpose. We have, therefore, no hesitation to
hold that the appellant had the right to maintain the
application under Art. 226 of the Constituiton. This Court
held in the decision cited supra that "ordinarily" the
petitioner who seeks to file an application under Art. 226
of the Constitution should be one who has a personal or
individual right in the subject-matter of the petition. A
personal right need not be in respect of a proprietary
interest : it can also relate to an interest of a trustee.
That apart, in exceptional cases, as the expression
"ordinarily" indicates, a person who has been prejudicially
affected by an act or omission of an authority can file a
writ even though he has no proprietary or even fiduciary
interest in the subject-matter thereof. The appellant has
certainly been prejudiced by the said order. The petition
under Art. 226 of the Constitution at his instance is,
therefore, maintainable.
Now, we shall first take the new argument advanced by Mr.
Ram Reddy for the first time before us, for, if that was
accepted,
182
the appeal would fail. Briefly stated, his contention was
that the order of the Government dated April 18, 1963, was
not made either under s. 62 or under s. 72 of the Act, but
was made only under the Rules made by the Government in
exercise of its power under s. 69 of the Act. To appreciate
this contention it will be useful to notice the relevant
rules.
Under r. 2, the Panchayat Samithi only recommends to the
Government the place for locating the said Centre. Under r.
3 (11), in the case of conflict between the relevant
authorities in regard to the location of a Health Centre,
the Govemment’s order shall be final. Under’s. 6, a Primary
Health Centre once established shall not ordinarily be
shifted to another place except by the Government on the
recommendation of the Panchayat Samithi on the basis of a
resolution passed by it by two-thirds of the member,, of the
Panchayat Samithi present at the meeting. Even in such a
case the Government has no power to direct the shifting of a
Primary Health Centre established in one place to another,
if the contribution from the people had been accepted and is
in deposit. It is clear from the said rules that the
ultimate authority to locate the Primary Health Centre or to
direct its shifting from one place to another is the
Government. On the basis of the said rules, learned counsel
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contended that the High Court missed the real point,
presumably on the arguments advanced before it, and pro-
ceeded to consider the validity of the impugned order in
terms of s. 72 of the Act. The circumstance, the argument
proceeded, that the Government in its orders referred
neither to s. 62 nor to s. 72 of the Act or did not give any
notice to parties as prescribed theretinder clearly
indicates that the Government acted only under the said
relevant rules. This argument so stated appears at the
first blush to be unanswerable. But a scrutiny of the
relevant provisions of the Act shows that the said rules are
inconsistent with the provisions of the Act and they cannot
possibly override the statutory power conferred on the
Panchayat Samithi.. Under s. 18 (1) of the Act, subject to
the provisions of the Act, the administration of the Block
shall vest in the Panchayat Samithi; and under sub-s. (2)
thereof the Panchayat Samithi shall exercise the powers and-
perform the functions specified in the Schedule. When we
refer to the Schedule it will be seen &,at the following
entry is found under the heading "Health and Rural
Sanitation", "Establishing and maintaining Primary Health
Centre and Maternity Centres". It is manifest that under
the Act the statutory power to establish and maintain
Primary Health Centres is vested in the Panchayat Samithi.
There is no provision vesting the said power in the Gov-
183
ernment. Under s. 69 of the Act, the Government can only
make rules for carrying out the purposes of the Act; it
cannot, under the guise of the said rules, convert an
authority with power to establish a Primary Health Centre
into only a recommendatory body. It cannot, by any rule,
vest in itself a power which under the Act vests in another
body. The rules, therefore, in so far as they transfer the
power of the Panchayat Samithi to the Government, being
inconsistent with the provisions of the Act, must yield to
s. 18 of the Act.
Realizing this difficulty, the learned Solicitor General,
who appeared for the 4th respondent, made an attempt to
reconcile the relevant rules with the provisions of s. 18 of
the Act. He argued -that s. 18 of the Act conferred a power
on the Panchayat Samithi to establish and maintain Primary
Health Centres, whereas the Rules provided for the location
or shifting of the Centres. This argument does not appeal
to us. A Primary Health Centre cannot be established in
vacuum; it must be established in some place. The Rules
deprive the Panchayat Samithi of the power to select a place
for establishing a Primary Health Centre and make it a re-
commendatory body with final powers in the Government. The
Rules also confer a power on the District Medical Officer
and the District Health Officer in the matter of location of
the Centre and give the Government the final voice, if there
is any conflict between -those officers and the Panchayat
Samithi. Even in regard to shifting of the Primary Health
Centre, the Government’s voice is final under the Rules. It
is one thing to say that the exercise of the power by the
Panchayat Samithi is regulated by the Rules, but another
thing to deprive it of that power in the matter of location
of the Primary Health Centre and confer the said power on
the Government. We, therefore, hold that the Rules, in so
far as they make the Panchayat Samithi a mere recommendatory
body, are inconsistent with the Act. This may be the reason
why in the High Court the Government did not think fit to
sustain the order under the authority of the Rules.
The next question is whether the order dated April 18, 1963,
can be sustained under s. 72 of the Act. Section 72 of the
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Act reads :
Power of revision and review by Government:
(1) The Government may either suo motu or on
an application from any person interested,
call for and examine the record of a Panchayat
Samithi or a Zilia Parishad or of their
Standing Committees in respect of
184
any proceeding to satisfy themselves as to the
regularity of such proceeding or the
correctness, legality or propriety of any
decision or order passed therein; and, if, in
any case, it appears to the Government that
any such decision or order should be modified,
annulled or reversed or remitted for
reconsideration, they may pass orders
accordingly
Provided that the Government shall not pass
any order prejudicial to any party unless such
party has had an opportunity of making a
representation.
(2)
(3) The Government may suo motu at any time
or on an application received from any person
interested within ninety days of the passing
of an order under subsection (1), review any
such order if it was passed by them under any
mistake, whether of fact or of law, or in
ignorance of any material fact. The
provisions contained in the proviso to sub-
section (1) and in sub-section (2) shall apply
in respect of any proceeding under this sub-
section as they apply to a proceeding under
subsection (1)."
Sub-section (1) of S. 72 of the Act confers a wide power on
the Government to revise any decision or order passed in any
proceeding under the Act. Sub-section (3) thereof confers a
power on the Government to review the order made under sub-
s. (1) thereof if it was passed by the Government under any
mistake, whether of fact or of law, or in ignorance of any
material fact. To attract sub-s. (3), the order sought to
be reviewed should have been made under sub-s. (1). To
appreciate the scope of S. 72(1) of the Act, it is necessary
to compare the said sub-:section with S. 62 of the Act.
Under S. 62(1), the Government may, by order in writing,
cancel any resolution passed by a Panchayat Samithi, if in
its opinion such resolution is not legally passed or is in
excess or abuse of the powers conferred by or under the Act
or for any other reasons mentioned therein. Under sub-s.
(2) of S. 62, the Government shall, before taking action
under sub-s. (1) thereof shall give the Panchayat Samithi or
the Zilla Parishad, as the case may be, an opportunity for
explanation. Section 72 confers a general power on the
Government; and on its terms, if there was no other section,
it can cancel a resolution of a Panchayat Samithi. But, S.
62 of the Act confers a special power on the Government to
cancel a resolution passed by a Panchayat Samithi in the
cir-
185
cumstances mentioned therein. The principle generalities
specialities non derogant compels us to exclude from the
operation of S. 72 the case provided for under s. 62. If so
construed, it follows that if the order reviewed fell under
the scope of s. 62, it could not be reviewed under s. 72,
for s. 72(3) enables the Government only to review an order
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made under sub-s. (1) -of S. 72. So, the learned counsel
for the State as well as for the 4th respondent made a
serious effort to bring the order of the Government dated
March 7, 1962, within the terms of s. 72(1) of the Act. As
the argument turns upon the terms of the said order, it may
conveniently be read at this stage :
Government of Andhra Pradesh
Planning and Local Administration Department.
MEMORANDUM NO. 1354/Prog.11/61-2 dated 7-3-1962.
Sub Community Development Programme-Chintalapudi Block
-Shifting of Primary Health Centre from Dharmajigudeni to
Lingapalem--Orders issued.
Ref. 1. Representation of Sri G. Punneswararao and others
dated 31-6-1961.
2. Letter from Collector, West Godavari, No. 01.5642/61
dated 22-9-1961.
The Panchayat Samithi, Chintalapudi, at its
meeting held on 25-8-1960 unanimously resolved
to locate the Primary Health Centre at
Dharmajigudem. Later, the Panchayat Samithi
at its meeting held on 29-5-61 resolved to
shift the Primary Health Centre permanently to
Lingapalem village. The President,
Dharmajigudem Panchayat., and others have
represented to Government against acceptance
of the resolution passed by the Samithi at its
meeting held on 29-5-1961. This
representation has been carefully examined by
the Government in consultation with the
Collector, West Godavari.
Under Rule 6 of the Rules for the
establishment and maintenance of Primary
Health Centres by Panchayat Samithis made
under the provisions of the Panchayat Samithis
and Zilla Parishads Act, 1959, the Primary
Health Centre once established shall not
ordinarily be
186
shifted to another place within the Block
unless the Samithi resolves by 2/3rd majority
of the members present at the meeting as
required under rule 7 of the said rules. In
the present case the Primary Health Centre was
already functioning at Dharmajigudem and the
resolution of the Panchayat Samithi dated
29-5-1961 did not get the requisite support of
the Samithi Members as required under rule 7.
In the above circumstances, the Government
consider that there are no valid reasons for
shifting the Primary Health Centre from
Dharmajigudem to Lingapalem. The Block
Development Officer, Chintalapudi, is directed
to take action accordingly.
Sd/- B. Pratap Reddi.
Deputy Secretary to Government.
It was said that the said order did not mention the section
whereunder it was passed, that it did not cancel any
resolution, that it did not in terms approve or disapprove
any resolution, that it considered other orders issued and
finally gave a direction to the Block Development Officer to
take action in accordance with the terms of the order. In
short, the argument of the learned counsel was that the
order was not for the cancellation of the resolution of the
Panchayat Samithi but one made in terms of s. 72 of the Act.
We are not impressed by this argument. The preamble to the
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order clearly mentions that the Panchayat Samithi Chintala-
pudi, it its meeting held on May 29, 1961, resolved to shift
the Primary Health Centre permanently to Lingapalem village.
Then it states that the President of the Dharmajigudem
Panchayat and others had represented to the Government
against the acceptance of the said resolution. The order
then records that the Government had carefully considered
the said representation. Then it gives the reason that the
said resolution was bad inasmuch as that under r. 6 of the
Rules the Primary Health Centre once established should not
ordinarily be shifted to another place within the Block,
unless the Panchayat Samithi resolves by two-thirds majority
of the members of the Samithi present at the meeting as
required by r. 7 of the Rules. Then it point-. out that the
Primary Health Centre was functioning at Dharmajigudem and,
therefore, the resolution, not having the support of the
requisite majority, did not comply with r. 7 of the Rules.
For the said reasons the order concludes that there were no
valid reasons for shifting the Primary Health Centre from
Dharmajigudem to Lingapalem. The Gov-
187
ernment then gives the consequential directions to the Block
Development Officer to take action accordingly. An analysis
of the order demonstrates beyond any reasonable doubt that
it is nothing more than a cancellation of the resolution
passed by the Panchayat Samithi on May 29, 1961. The mere
fact that the order does not use the expression "cancel"
will not make it any the less an order cancelling the
resolution. We, therefore, hold that the order of the
Government dated March 7, 1962, was one made under s. 62 of
the Act and, therefore, it could not be reviewed under s. 72
thereof.
The learned counsel for the State then contended that the
order dated April 18, 1963, could itself be sustained under
S. 62 of the Act. Reliance is placed upon s. 13 of the
Madras General Clauses Act, 1891, whereunder if any power is
conferred on the Government, that power may be exercised
from time to time as occasion requires. But that section
cannot apply to an order made in exercise of a quasi-
judicial power. Section 62 of the Act confers a power on
the Government to cancel or suspend the resolution of a
Panchayat Samithi, in the circumstances mentioned therein,
after giving an opportunity for explanation to the Panchayat
Samithi. If the Government in exercise of that power
cancels or confirms a resolution of the Panchayat Samithi,
qua that order it becomes functus officio. Section 62,
unlike s. 72, of the Act does not confer a power on the
Government to review its orders. Therefore, there are no
merits in this contention.
Before we leave s. 62 of the Act, it may be noticed that the
order dated March 7, 1962, was passed by the Government
without giving notice to the Panchayat Samithi. It was in
violation of the mandatory provision of sub-s. (2) of s. 62
which says that the Government shall, before taking action
under sub-s. (1), give the Panchayat Samithi an opportunity
for explanation. This opportunity was not given and,
therefore, that order was not legal.
Now let us assume that the said order was made under sub-s.
(1) of s. 72 of the Act. Two objections were raised against
the validity of the order reviewing the previous order,
namely, (i) there was no mistake of fact or law, and (ii)
the said order, which was prejudicial to Dharmajigudem
village, was made without giving an opportunity to the
representatives of the said village of making a
representation. The order gives in extension the history of
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the dispute between Dharmajigudem and Lingapalem in the
matter of location of the Primary Health Centre. It points
out that all the earlier resolutions of the Panchayat
Samithi were cancelled and
Sup .C/66-13
188
the only outstanding resolution was that of May 29, 1961,
whereunder the said Centre was directed to be located
permanently at Lingapalem. Then it proceeds to say that the
order dated March 7, 1962, was passed on a mistaken
impression that it was a case of shifting the Primary Health
Centre from one place where it was permanently located to
another, while the correct position was that the place where
the Primary Health Centre was to be located permanently had
not till then been decided by the Government. In that view,
in supersession of the order issued by it on March 7, 1962,
it directed that the said Centre should be located
permanently at Lingapalem as per the resolution of the
Panchayat Samithi dated May 29, 1961. No doubt the
statement in that order, namely, that the place where the
Primary Health Centre was to be located permanently had not
so far been decided by the Government, if taken out of
context, may appear to be an incorrect statement, for the
Government by it-, order dated July 6, 1960, approved the
proposal of the Panchayat Samithi, Chintalapudi, to locate
the Primary Health Centre permanently at Dharmajigudem. But
an analysis of the various orders passed by the Panchayat
Samithi and the Government discloses, as we have already
indicated, that the Primary Health Centre was never
permanently located at Dharmajigudem, that before the Act it
was located therein subject to certain conditions which were
not fulfilled, that after the Act the Panchayat Samithi,
though it passed a resolution on May 28, 1960, approving the
location of the said Centre permanently at Dharmajigudem and
though it was approved by the Government by its order dated
July 6, 1960, cancelled its earlier resolution in accordance
with law on May 29, 1961 and voted for locating the Centre
at Lingapalem. Therefore, the Government was right when it
said in its order that it made a mistake of fact in passing
its earlier order on March 7, 1962, on a misapprehension
that there was a permanent location of the Centre at Dhar-
majigudem.
But there is another flaw in the order of the Government
dated April 18, 1963, i.e., it made the order without giving
an opportunity to the representatives of Dhartnajigudem who
were prejudicially affected by the said order. Learned
counsel for the State said that the appellant could not be
considered to be a party prejudicially affected by that
order. But, as we have stated earlier, the appellant was
the President of the Committee which collected the amount,
he was representing the village all through and he also
deposited the prescribed amount with the Block Development
officer. The Government should have, therefore, given
notice
189
either to him or to the Committee, which was representing
the village all through for the purpose of securing the
location of the Primary Health Centre in their village. The
order made in derogation of the proviso to sub-s. (1) of s.
72 of the Act is also bad.
The result of the discussion may be stated thus : The
Primary Health Centre was not permanently located at
Dharmajigudem. The representatives of the said village did
not comply with the necessary conditions for such location.
The Panchayat Samithi finally cancelled its earlier
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resolutions which they were entitled to do and passed a
resolution for locating the Primary Health Centre
permanently at Lingapalem. Both the orders of the
Government, namely, the order dated March 7, 1962, and that
dated April 18, 1963, were not legally passed : the former,
because it was made without giving notice to the Panchayat
Samithi, and the latter, because the Government had no power
under s. 72 of the Act to review an order made under s. 62
of the Act and also because it did not give notice to the
representatives of Dharmajigudem village. In those
circumstances, was it a case for the High Court to interfere
in its discretion and quash the order of the Government
dated April 18, 1963 ? If the High Court had quashed the
said order, it would have restored an illegal order-it would
have given the Health Centre to a village contrary to the
valid resolutions passed by the Panchayat Samithi. The High
Court, therefore, in our view, rightly refused to exercise
its extraordinary discretionary power in the circumstances
of the case.
In the result, the appeal is dismissed, but, in the
circumstances of the case, without costs.
Appeal dismissed.
190