Full Judgment Text
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PETITIONER:
KHARGRAM PANCHAYAT SAMITY & ANR.
Vs.
RESPONDENT:
STATE OF WEST BENGAL & ORS.
DATE OF JUDGMENT23/04/1987
BENCH:
SEN, A.P. (J)
BENCH:
SEN, A.P. (J)
ERADI, V. BALAKRISHNA (J)
CITATION:
1987 SCR (2)1207 1987 SCC (3) 82
JT 1987 (2) 266 1987 SCALE (1)1142
ACT:
West Bengal Panchayat Act, 1973/West Bengal Panchayat
(Samiti Administration) Rules, 1984--s. 117/Rules 7, 8 and
9--Power to grant licence for holding a hat/fair includes
power to specify a day on which such hat/fair shall be held.
Administrative Law.
Local authorities--Conferral of statutory power--Im-
pliedly authorises everything which could fairly and reason-
ably be regarded as consequential and incidental to that
power.
HEADNOTE:
Ever since 1933, a cattle fair called Nagar Cattle Hat
is being held on Saturday every week by the Nagar Quorania
Junior High Madrassah. Since 1974, respondent No. 6, a club
called Prabartak Parishad set up a parallel cattle fair at
Sherpur, about two kilometres away from the site of Nagar
Cattle Hat on every Saturday, known as Sherpur Cattle Hat.
The holding of two rival cattle fairs on the same day gave
rise to feeling of rivalry couple with tension and this
frequently led to violent conflicts and skirmishes between
the two rival groups.
Upon a representation made to him, the District Magis-
trate, Murshidabad caused an inquiry to be held, and held
that holding of the two cattle fairs on the same day created
serious law and order problem and accordingly directed
holding of the hats on two different days for preservation
of public peace and tranquility.
On. a writ petition filed by the respondent No. 6 the
High Court struck down the order of the District Magistrate
on the ground that no such direction could be issued by him
as the competent authority was the Khargrar Panchayat Sami-
ti.
In compliance with the directions made by the Court, the
Panchayat Samiti passed a resolution that the Nagar Cattle
Hat run by Nagar Quorania Junior High Madrassah would be
held on Saturday and the Sherpur Cattle Hat run by Prabartak
Parishad would be held on Friday.
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Respondent No. 6 filed another writ petition challenging
the said resolution. A Single Judge quashed the resolution
of the Panchayat Samiti on the ground that it acted in
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breach of the rules’ of natural justice while reserving
liberty to the Panchayat Samiti to come to a decision afresh
after affording an opportunity to respondent No. 6.
The appeal preferred by the Panchayat Samiti was admit-
ted, but the Division Bench declined to grant stay and
directed that the Panchayat Samiti should. comply with the
order of the Single Judge. Consequently, the Panchayat
Samiti issued notices to the contending parties requiring
them to submit their claims for consideration. The Panchayat
Samiti after considering the claims of both parties and the
material record, passed a resolution that the Nagar Cattle
Hat would be held on Saturday every week and the Sherpur
Cattle Hat would be held on Friday, and directed the Execu-
tive Officer to incorporate such a condition in the licence
granted to the two organisations for holding the cattle
fairs on these days.
Again, respondent No. 6 filed a writ petition challeng-
ing the resolution dated April 12, 1985. A Single Judge
dismissed the writ petition. Respondent No. 6 then moved the
Division Bench for restraining the Panchayat Samiti from
giving effect to the said resolution. The Division Bench
quashed the resolution dated April 12, 1985 holding that
although in terms of s. 117 of the Act, the Panchayat Samiti
was vested with the power of granting a licence for the
holding of a hat or fair, by the framing of rr. 7, 8 and 9
of the West Bengal Panchayat (Samiti Administration) Rules,
1984 the power of the Panchayat Samiti is confined to making
provision for maintenance of sanitation, health and in the
market area which is the essence of the power under s. 117,
and further that in the absence of a provision in the rules
in that behalf it had no power to specify a day on which
such hat or fair should be held.
Allowing the Appeal,
HELD: 1. The view taken by the High Court that although
the Panchayat Samiti was vested with the power to grant a
licence for the holding of a hat or fair under s. 117 of the
West Bengal Panchayat Act, 1973, yet it had no consequential
or incidental power to specify a day for holding of such hat
or fair, is manifestly erroneous. [1213C-D]
2. The power to grant a licence for the holding of a hat
or fair under s. 117 of the Act necessarily carries with it
the power to specify a day on which such hat or fair shall
be held. Such power to specify a day must be held to be a
power incidental or consequential upon the principal power
of issuing a licence under s. 117 of the Act for holding of
a hat or fair. [1214H; 1215A]
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3. The rules or the absence of it do not detract from
the substantive power conferred by a statute. [1215A-B]
4. The essence and content of the power of a Panchayat
Samiti under s. 117 of the Act is issuance of a licence for
the holding of a hat or fair and not mere maintenance of
sanitation, health and hygiene as held by the High Court.
[1215B]
5. It is well-accepted that the conferral of statutory
powers on local authorities must be construed as impliedly
authorising everything which could fairly and reasonably be
regarded as incidental or consequential to the power itself.
[1213F-G]
6. The doctrine of ultra. vires is not to be applied nar-
rowly. [1214B-C]
De Smith’s Judicial Review of Administrative Action, 4th
edn., p. 95; HWR Wade’s Administrative Law, 5th edn., p.
217; Craies on Statute Law, 6th edn., p. 276; Attorney
General v. Great Eastern Railway, LR (1880) 5 AC 473; Baro-
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ness Wenlock v. River Dee Co., LR (1885) 10 AC 354; V.T.
Khanzode & Ors. v. Reserve Bank of India, [1982] 2 SCC 7 and
State of Uttar Pradesh v. Batuk Deo Pati Tripathi & Anr.,
[1976] 2 SCC 102, relied upon.
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 5675 of
1985.
From the Judgment and Order dated 2.8.1985 of the Cal-
cutta High Court in Appeal from Original Order Tender No.
165 of 1985.
S.N. Kaicker. Girish Chandra and Mrs. Sarala Chandra for
the Appellants.
Tapas Roy, Parijat Sinha, D.N. Mukherjee, Dalip Sinha
and J.K. Das for the Respondents.
The Judgment of the Court was delivered by
SEN J. This appeal by special leave is directed against
the judgment and order of the Calcutta High Court dated
August 2, 1985 quashing a resolution passed by the Khargram
Panchayat Samiti dated April 12, 1985 specifying that the
cattle fairs run by two rival organisations r.e. Nagar
Cattle Hat run by Nagar Quorania Junior High Madrassah would
be held on Saturday every week and Sherpur Cattle Hat run by
Prabartak Parishad on Friday. By the judgment under
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appeal, a Division Bench of the High Court has held that
even though the Panchayat Samiti was vested with the power
to grant licence for holding of a hat or fair under s. 117
of the West Bengal Panchayat Act, 1973. still in the absence
of a rule framed under the Act it had no power to specify a
day on which such hat or fair shall be held. The issue
involved is whether the Panchayat Samiti being vested with
the authority to grant a licence for the holding of a hat or
fair under s. 117 of the Act within the limits of its terri-
torial jurisdiction, must necessarily be held to have the
consequential or incidental power to specify a day for the
holding of such hat or fair.
The facts of the case are as follows. Ever since 1933, a
cattle fair called Nagar Cattle Hat is being held on Satur-
day every week by the Nagar Quorania Junior High Madrassah,
a charitable educational institution which runs a school and
is also engaged in other social activities, which attracts a
large gathering of buyers and sellers of cattle dealers
within the district of Murshidabad and even beyond the
district. Since 1974, respondent no. 6 a club called Prabar-
tak Parishad, set up a parallel cattle fair at a place
called Sherpur, about two kilometres away (as the crow
flies) from the site of Nagar Cattle Hat on every Saturday,
known as Sherpur Cattle Hat. The holding of two rival cattle
fairs on the same day gave rise to a feeling of rivalry
couple with tension amongst the local population as also the
large number of cattle dealers and peasantry attending the
cattle fairs and this frequently led to violent conflicts
and skirmishes between the two rival groups. Upon a repre-
sentation made to him in 1980, the District Magistrate,
Kurshidabad caused an inquiry to be held and by his order
dated April 2, 1980 held that holding of the two cattle
fairs on the same day created serious law and order problem
and accordingly directed holding of the hats on two differ-
ent days for preservation of public peace and tranquility.
On a writ petition filed by respondent no. 6 Prabartak
Parishad, a Division Bench of the High Court by its order
dated June 2, 1982 struck down the impugned order of the
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District Magistrate on the ground that no such direction
could be issued by him as the competent authority was the
Khargram Panchayat Samiti. It was observed:
"The only authority which is competent to give
any direction in this regard is the authority
under the West Bengal Panchayat Act, 1973. No
such direction has been given by the authority
under the said Act. In the circumstances, we
set aside the impugned order of the District
Magistrate and the judgment of the learned
Judge. Appeal is allowed.
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There will be no order as to costs. It is made
clear that this order is without prejudice to
any steps that may be taken in ,accordance
with law by the authority under the said Act."
In Compliance with the direction made by the High Court,
the District Magistrate obviously actuated by consideration
of maintenance of law and order requested the Chairman of
the Khargram Panchayat Samiti to take necessary steps as the
holding of rival hats in contiguous areas could not be
allowed to. continue as it gave rise to serious law and
order problem. A meeting of the Panchayat Samiti was accord-
ingly held on June 20, 1984 and a resolution was passed by a
majority of the members that the Nagar Cattle Hat run by
Nagar Quorania Junior High Madrassah would be held on Satur-
day as before and the Sherpur Cattle Hat run by Prabartak
Parishad being of recent origin would be held on Friday.
Thereupon, respondent no. 6 filed another writ petition in
the High Court challenged the impugned resolution of the
Panchayat Samiti. A learned Single Judge by his judgment and
order dated January 14, 1985 quashed the impugned resolution
of the Panchayat Samiti on the ground that it acted in
breach of the rules of natural justice while reserving
liberty to the Panchayat Samiti to come to a decision afresh
after affording an .opportunity to respondent no. 6 Prabar-
tak Parishad to have its say before it. Aggrieved, the
appellant preferred an appeal and applied for stay. A Divi-
sion Bench of the High Court by its order dated March 19,
1985 admitted the appeal but declined to grant stay. and
directed that the Panchayat Samiti should in the meanwhile
comply with the order of the learned Single Judge. As a
consequence, Khargram Panchayat Samiti was constrained to
give effect to the direction made by the learned Single
Judge. It accordingly issued notices to the contending
parties i.e. both Nagar Quorania Junior High Madrassah and
Prabartak Parishad requiring them to submit their claims for
consideration. and also fixed a date being April 12, 1985
for hearing. On that date. the Panchayat Samiti at its open
meeting heard the representatives of the parties and scruti-
nised the documents placed before it. After considering the
claims of both the parties and the material record, it
passed a resolution that the Nagar Cattle Hat would be held
as before on Saturday every week and the Sherpur Cattle Hat
would be held on Friday, and directed the Executive Officer
to incorporate such a condition in the licence granted to
the two organisations for holding the cattle fairs on these
days. Again, respondent no. 6 filed a writ petition before
the High Court challenging the aforesaid resolution dated
April 12, 1985. A learned Single Judge by his judgment dated
June 19, 1985 dismissed the writ petition in view of the
pendency of the appeal before the
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Division Bench, pursuant to whose direction the aforesaid
resolution had been passed. Respondent no. 5 then moved the
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Division Bench for restraining Khargram Panchayat Samiti
from giving effect to the said resolution. The Division
Bench by its judgment under appeal quashed the impugned
resolution dated April 12, 1985 of Khargram Panchayat Sami-
ti. It held that although in terms of s. 117 of the Act the
Panchayat Samiti was vested with the power of granting a
licence for the holding of a hat or fair, by the framing of
rr. 7, 8 and 9 of the West Bengal Panchayat (Samiti Adminis-
tration) Rules, 1984 the power of the Panchayat Samiti is
confined to making provision for maintenance of sanitation,
health and hygiene in the market area which is the essence
of the power under s. 117, and further that in the absence
of a provision in the rules in that behalf it had no power
to specify a day on which such hat or fair should be held.
It accepts that when a power is conferred on a statutory
authority. it necessarily carries with the other incidental
or ancillary powers and holds that the Panchayat Samiti
being vested with the power to grant a licence under s. 117
of the Act had been conferred the power under rr. 7, 8 and 9
to making provision for sanitation, health and hygiene in
the market area which is the essence of the power and there-
fore the Panchayat Samiti had tile power to see that sanita-
tion, health and hygiene are properly maintained and looked
after, and nothing more. In repelling the contention that
the specification of a day for the holding of a hat or fair
was consequential to the power to grant a licence under s.
117 of the Act, it observed:
"there can be no doubt that when a power is
conferred on a statutory authority such power
will also include other incidental or ancil-
lary powers without the exercise of which the
main power cannot be exercised. In the instant
case however. Panchayat Samiti has been con-
ferred with a power to see that sanitation,
health and hygiene are properly maintained and
looked after. The provisions of Rule 9 of the
Rules, as stated already, imposed certain
terms and conditions on the grant of license
for holding a market or hat, but all these
terms and conditions relate to maintenance or
sanitation, health and hygiene or supply of
water or making proper lighting arrangement.
The essence of power is, therefore, the main-
tenance of sanitation, health and hygiene.
Many incidental powers may be exercised by the
Panchayat Samiti which are directly related to
the exercise of the maintenance of, sanita-
tion, health and hygiene. Such powers are not
provided for under Rule 9, yet they could be
exercised by the Panchayat Samiti in exercise
of
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its power under Rule 9 incidentally. But, in
our opinion. the Panchayat Samiti cannot
exercise a power which has no connection
whatsoever with sanitation, health and hy-
giene. The reason for fixing different days,
viz., Fridays and Saturdays for the holding of
the two hats, viz., apprehended breach of
peace, has no connection whatsoever with the
question of sanitation, health and hygiene.
Exercise of such assumed power cannot be said
to be incidental or ancillary to the main
power for the imposition of terms and condi-
tions of a licence. In case, any broach of
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peace takes place. it will be a concern of the
District Magistrate to take steps for the
same."
In our judgment, the view taken by the High Court that
although the Panchayat Samiti was vested with the power to
grant a licence for the holding of a hat or fair under s. i
17 of the Act, yet it had no consequential or incidental
power to specify a day for holding of such hat or fair, is
manifestly erroneous and cannot be supported. It failed to
appreciate that under the Act the power of general adminis-
tration of the local area vests in the Panchayat Samiti only
to grant a licence to hold a hat or fair under s. 117 of the
Act, but such power of general administration necessarily
carries with it the power to supervise, control and manage
such hat or fair within its territorial jurisdiction. The
conferment of the power to grant a licence for the holding
of a hat or fair under s. 117 of the Act includes the power
to make incidental or consequential orders for specification
of a day on which such hat or fair shall be held. The deci-
sion of the High Court runs counter to the well-accepted
principles. It overlooks that the statutory bodies like the
Panchayat Samiti enjoy a wide ’incidental power’ i.e. they
may do every thing which is ’calculated to facilitate, or is
conductive or incidental to, the discharge of any of their
functions’ and the doctrine of ultra vires is not to be
applied narrowly. It is well-accepted that the conferral of
statutory powers on these local authorities must be con-
strued as impliedly authorising everything which could
fairly and reasonably be regarded as incidental or conse-
quential to the power itself. See: de Smith’s Judicial
Review of Administrative Action. 4th edn., p. 95. HWR Wade’s
AdminiStrative Law, 5th edn., p. 217. Craies on Statute Law,
6th edn., p. 276. Attorney General v. Great Eastern Railway,
LR (1880) 5 AC 473; Baroness Wenlock v. River Dee Co., LR
(1885) 10 AC 354. De Smith in his celebrated work Judicial
Review of Administrative Action, 5th edn. at p. 95 puts the
law tersely in these words:
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The House of Lords has laid down the principle that "whatev-
er may fairly be regarded as incidental to. or consequent
upon. those things which the Legislature has authorised.
ought not (unless expressly prohibited) to be held, by
judicial construction, to be ultra vires."
This principle was. enunciated by Lord Selborne in Attorney
General v. Great Eastern Railway, supra, in these words:
"The doctrine of ultra vires ought to be reasonably. and not
unreasonably, understood and applied and whatever may be
fairly regarded as incidental to. or consequential upon,
those things which the legislature has authorised ought not
(unless expressly prohibited) to be held, by judicial con-
struction. to be ultra vires." These words have been quoted
by Professor wade in his monumental work Administrative Law.
5th edn. at p, 2 17 and also by Craies on Statute Law, 6th
edn. p, 276. Craies also refers to the observations of Lord
Watson in Baroness Wenlock v. River Lee Co., supra, .to the
effect:
"Whenever a corporation is created by Act of
Parliament with reference to the purposes of
the Act, and solely with a view to carrying
these purposes into execution, I am of opinion
not only that the objects which the corpora-
tion may legitimately pursue must be ascer-
tained from the Act itself, but that the
powers which the corporation may lawfully use
in furtherance of these objects must either be
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expressly conferred or derived by reasonable
implication from its provisions,"
This Court in V.T. Khanrode & Ors. v. Reserve Bank of
India, [1982] 2 SCC 7 has followed the dictum of Lord Sel-
borne in Great Eastern Railway’s case and reaffirmed the
principle that the doctrine of ultra vires in relation to
the powers of a statutory corporation have to be understood
reasonable and so understood, whatever may fairly be regard-
ed as incidental to, or consequential upon, those things
which the legislature has authorised ought not (unless
expressly prohibited) to be held by judicial construction,
to be ultra vires. It had earlier been laid down by a Con-
stitution Bench of the case of State of Uttar Pradesh-v.
Batuk Dee Pati Tripathi & Anr., [ 1973] 2 SCC 102 that a
power to do a thing necessarily carries with it the power to
regulate the manner in which the thing may be done. The High
Court failed to apreciate that the power to grant a licence
for the holding of a hat or fair under s. 117 of the Act
necessarily carries with it the power to specify a day on
which such hat or fair shall be held. Such power to
1215
specify a day must be held to be a power incidental to or
consequential upon the principal power of issuing a licence
under s. 117 of the Act for holding of a hat or fair. The
rules or the absence of it do not detract from the substan-
tive power conferred by a statute. The essence and content
of the power of a Panchayat Samiti under s. 117 of the Act
is issuance of a licence for the holding of a hat or fair
and not mere maintenance of sanitation, health and hygiene
as held by the High Court.
For these reasons, we have no hesitation in reversing
the judgment of the High Court. The appeal must accordingly
succeed and is allowed. The judgment and order passed by the
High Court are set aside and the writ petition is dismissed.
No. costs.
A.P.J. Appeal al-
lowed.
1216