ORDER
1. This is a petition by a citizen of India, claiming to be an agriculturist in Bulsar District and also claiming to be a voter in his capacity as a member of the Managing Committee of one co-operative society. The dispute which has, been raised pertains to the election of 8 agriculturists to the Agricultural produce Market Committee Valsad. The term of the Committee was to expire somewhere in June 1976 and so 3-6-1976 was fixed as a date for general elections of the said Market Committee. For the purpose of S. 11 Of ths Gujarat Agricultural Produce Markets Act, 1963, hereinafter referred to as the Act,' a voters list of the members of the managing committee of co-operative societies (other than co-operative marketing societies) dispensing agricultural credit in the market area was required to be Prepared. One authorised person was appointed and he had prepared the list and had published it on 29-3-1976. In that list, 469 voters were notified. They were as per S. 11(1) clause (i) members of managing committees of co-operative societies dispensing agricultural credit in the market area. Objections were invited and a final list was Published on 12-4-1976. In this final list, there were 57 newly added voter. Then the nominations were filed and the petitioner and respondents Nos. 3 to 17 had filed their nomination, papers, which were found in order. The election had taken Place on 3-6-1976 and respondents Nos.3 to 10 were successful. The petitioner and others had lost. The petitioner thereafter moved the Director under R. 28 of the Gujarat Agricultural Produce Markets Rules, 1965, which reads as follows:-
'28. Determination of validity of election.- (1) If the validity of any election of a member of the Market Committee is brought in question by any person qualified either to be elected or to vote it the election to which. such question refers such person may, within seven days after the date of the declaration of the result of the election, apply in writing -
(a) to the Director, if the election has been conducted by a person authorized by the Director, to perform the function of an Election Officer and
(b) to the State Government if the election has been conducted by the Director as an Election Officer.
(2)...... .............'
The petitioner's appeal had come to be admitted by the director and stay was granted. The result was that the petitioner, who was a member in the erstwhile market committee, and who had unsuccessfully fought the election, continued to be the member of the market committee along with his old colleagues. The Director then transferred this appeal to his Joint Director by virtue of the power of delegation, which the State Government has exercised as per the special order as per Government's Order No.GH-KH-153-APM-1072/24508-D dated 15-7-1972. This election filed by the petitioner then came to be heard by the Joint Director by virtue of the above-mentioned delegated authority and he rejected the application only on two counts: (1) the Petitioner had taken part in the election and had acquiesced in the Process; and (2) that the petitioner was not able to show how the alleged irregularity in the conduct of the election had materially affected the election. The result was that the said election application came to be dismissed. There being no other alternative remedy available to the petitioner, he moved this Court by filing the present petition.
2. At the outset Mr. Zaveri had raised the contention that under Rule 28 quoted above, the State -Government in the exercise of its delegated legislative power had laid down that the appeal lay to the Director after the election had been conducted by a person authorised by the Director to perform the functions of an Election Officer and this being essentially a judicial or at any rate a quasi-judicial power, it could not be delegated by the State Government by virtue of powers conferred under Section 4(2) of the Act. The power under Section 4(2) Mr.Zaveri submitted, was essentially the executive power of the Government, whereas the powers, exercised by the government while framing Rules were legislative in character. When the government while exercising the delegated legislative powers had laid down as a matter of binding law that only the Director could be the quasi-judicial authority to entertain and conduct the election petition, the Government on its administrative or executive side could not say that the said judicial powers would stand delegated to the Joint Director as seems to have been done by the above-quoted notification of the Government dated 15-7-72. He also urged that under Section 4(2) of the Act, what is contemplated to be delegated is only executive power and not the judicial power and in support of this submission of his, he tried to derive help from the phrase 'subject to the control of the Director'. Mr. Zaveri submitted that this clause clearly showed the legislator's intention itself that under Section 4(2) the only powers of the Director that could be delegated to the Joint Director, or Deputy Director would be only executive and administrative powers and not the quasi-judicial Powers. There is considerable force in this submission, which is accepted by me for the reasons that follow hereafter.
It cannot be gainsaid that Rule 28 of the Rules has been framed by the State Government in exercise of the powers conferred by the State Legislature on the Government under Section 59 of the Act. Rule 2 of the Rules is deemed to be, by a legal fiction, a part and parcel of the Act itself. In other words, they are deemed to be the expression of legislative will of the State. The very legislature itself while enacting Section 4(2) of the Act had also made provision for delegating to the Joint or Deputy Director the powers of the Director under the Act, as the State Government may by general or special order direct. The Legislature, however, made an important condition that the State Government could delegate the powers to the Joint or Deputy Directors, but 'subject to the control of the Director .' In other words, the State Legislature wanted to retain the overall control of the Director, the highest functionary under the Act, on all such powers functions and duties under this Act vested in the Director and with this' clear intention, it has been provided in Section 4(2) of the Act that the Joint or Deputy Directors so authorised by the State' Government by a general or special order are to exercise such powers and to perform such of his functions and duties under the Act 'subject to the control , of the Director.' In other words, whatever powers are exercised by the Joint Director and whatever functions and duties that are performed by the Joint Director as per the delegated authority, are to be exercised and performed by him 'subject to the control of the , - Director.' The judicial powers or quasi-judicial powers cannot be exercised subject to the control of anyone or subject to the control of the highest officer. It is, therefore, clear that the Legislature while enacting sub section (2) of Section 4 of the Act clearly contemplated delegation on1y of those powers and functions and duties which could be exercised or performed by the delegate 'subject to the control of the Director.' If judicial powers cannot be subject to such a control, it is to be assumed as a matter of natural corollary that the Powers contemplated to be delegated under See. 4 (2) cannot be Judicial powers.
3. In this connection, Mr. Joshi for the successful candidates and Mr. Christie for-the Director and others urged that the order of delegation referred to above did not speak of any such control. However, this does not matter. If the delegation is under Section 4(2), as a matter of necessity, it is 'subject to control of that Director.' That is the clear intention of the Legislature.
4. In above view of mine, I am supported 'by the judgment of the Division Bench of this court in the special civil application No. 662 of 1968 and other allied Petitions decided on 14, 21, 22, 23, 24 & 27 of Oct. 1969 (Guj) the Bench consisting of the then Chief Justice P. N. Bhagwati and N. K. Vakil JJ. The question that was before the Division Bench pertained to the disputes concerning the rateable value and the amount of tax deduction under Rule 18 of the Municipal Rules. In that case, the following pertinent observations were made:-
'Rule 18 confers power and it also imposes duty on the commissioner to investigate and decide complaints made by assessees against the initial entries in the assessment book. The exercise of the power results in an order being, made determining amongst other things the rateable value of the premises ......... This quasi-judicial Power involving exercise of a large measure of personal judgment and vitally affecting the property rights of citizens has been conferred by the Legislature upon the Commissioner who is the highest executive officer under the Act. The question is whether such a power is within the 'contemplation of Section 49: Can it be deputed to another under that Section
We do not think so. No Judicial or quasi-judicial power can be deputed to another by an officer to whom it is en. trusted under the statute unless the law expressly or by necessary implication permits it.' After referring the Judgment of the Supreme Court in the case of Bombay Municipal Corporation v. Dhondu, AIR 1965 SC 1486 and other authorities, the Division Bench further held as follows:- 'If the principle is well founded that a judicial or quasi-judicial power cannot be delegated unless the law expressly or by clear implication allows it, it must equally hold true that such a power cannot be deputed without a clear, expression of legislative will to that effect.'
The question that was specifically put for the consideration of the court was in respect of Sections 49 and 69 of the Bombay Provincial Municipal Corporation Act, 1949. Section 69 before it was amended by Gujarat Act No, 5 of 1970 provided as follows:-
'Subject to the provisions of sub-sections (2) and (3), any of the powers, duties or functions conferred or imposed upon or vested in the commissioner or the Transport Manager by or under any of the provisions of this Act may be exercised, performed or discharged, under the control of the Commissioner or the Transport Manager, as the case may be, and subject to his revision and to such conditions and limitations, if any, as may be prescribed by rules, or as he shall think fit to, prescribe in a manner not Inconsistent with the provisions of this Act or rules, by any municipal officer whom the Commissioner or the Transport Manager generally or specifically empowers by order in writing in this behalf, and to the extent to which any municipal officer is so empowered the word 'Commissioner' and the words 'Transport Manager' occurring in any Provisions in this Act, shall be deemed to include such officer..'
Section 49 before its amendment read as follows:-
'49 (11 A Deputy Municipal Commissioner or Assistant Municipal Commissioner shall, subject to the orders of the Commissioner, exercise such of the powers and perform such of the duties of the Commissioner as the Commissioner shall from time to time depute to him : Provided that the Commissioner shall inform the Corporation of the powers and duties which he from time to time deputes to a Deputy Municipal Commissioner or Assistant Municipal Commissioner.' (2) All acts and things performed and done by a Deputy Municipal Commissioner or Assistant Municipal Commissioner during his tenure of office and by virtue there of shall for all purposes be deemed to have been performed and done by the Commissioner,'
The Division Bench then posed a question as follows:
'We must, therefore, turn to inquire whether Section 49 contains any provision, express or by necessary implication, Permitting deputation of the quasi judicial Power under Rule 18. We find that far from containing any such Provision there is within Section 49 inherent evidence to show that the Legislature never intended that Judical or quasi judicial Power should be deputable by the Commissioner to the Deputy Municipal Commissioner. Section 49 says that the powers and duties deputed by the Commissioner under the section are to be exercised and performed by the Deputy Municipal Commissioner 'subject to the orders of the Commissioner'. The orders may be general or specific and they may be issued from time to time or at any time and at any stage of the proceeding before the Deputy Municipal Commissioner. The section thus enable the Commissioner to control the exercise and Performance of the 'Powers and duties by the Deputy municipal Commissioner at any and every stage. It makes it obligatory on the Deputy Municipal Commissioner to follow whatever orders the Commissioner may make, while taking decisions; in exercise of the power and Performance of the duty deputed to him. Now, it is impossible to conceive of interference, and control by one officer in the performance of, a quasi-judicial function by another. Such interference and control except by way of appeal is inherently inconceivable in the field of Judicial or quasi-judicial decision. It is in fact a contradiction or negation of Judicial or quasi-judicial Power. If - such interference and control were Permissible, It would make one officer ostensibly responsible for the decision of another: nay more, it would compel an officer in the exercise of his Judicial function to act according to the dictates of another, even if he is not satisfied about the correctness of the course' dictated by that other. That would be wholly inconsistent with exercise of - judicial or quasi-judicial Power. The Words 'subject to the orders of the commissioner' are appropriate only in relation to deputation of administrative functions. They are singularly inappropriate in relation to deputation of judical or quasi-judical functions. These words are clearly indicative of the legislative intent that judical or quasi-judicial functions of the Commissioner are not intended to be deputed and it must therefore be held that the deputation of the quasi-judicial power under Rule 18 was not within the contemplation of Section 49.'
5. It is to be recalled here that because of this judgment, Sections 49 and 69 cam to be retrospectively amended by Gujarat Act No. 5 of 1970, with the result that judicial powers were held to be delegatable but were held to be exercisable not under the control of the Commissioner. By enacting Gujarat Act No. 5 of 1970, the Gujarat Legislature accepted the interpretation placed by the Division Bench of this court on Section 49 of the Bombay Provincial Municipal Corporation Act, 1949, which interpretation oven on its own stands on a firm footing. Applying the ratio of that case to the facts of the case on hand, it is crystal clear that the Legislature while enacting Section 4(2) of the Act, could not have intended that judicial or quasijudicial functions, which were required to be performed by the Director under this, Act, were such as could be delegated. The phrase 'subject to the control of the Director'. occurring in sub section (2) of Section 4 of the Act, therefore, clearly shows that only executive powers could be delegated.
6. The learned Advocates Mr. Joshi and Mr. Christie, however, urged that in the case before the Division Bench, the delegation was by the Municipal Commissioner himself whereas in the, case on hand, delegation is by the State Government. This, however, makes little difference as far as the basic principle is concerned. - Section 4(2) of the Act, as framed by the Legislature, is susceptible of one meaning, namely, the competence of the State Government on its executive side to delegate executive functions to the Joint Director or Deputy Director. The Rule 28 of the Rules as it stands speaks only of the Director. The result would be that the handling of the election Petition by the Joint Director would be an act without authority and on that count the petition will be required to be allowed and the matter to be remanded to the Director, who had after admitting the election petition, transferred it to the Joint Director for disposal. The Director, therefore, will be required to' entertain the said petition presented by the petitioner and dispose it of in accordance with law. Rule is accordingly made absolute with no order as to costs.
7. Many facets over and above the one urged by the petitioner in his memo of election petition were canvassed by Mr. Zaveri for the petitioner before me. On behalf of all the respondents. important pleas like the acquiescence of the petitioner in the election process, namely, the petitioner's non-objecting to the provisional list and his having participated in the election and the petitioner's prospects even otherwise not being improved were pressed into service. As the matter is going back to the Director for disposal in accordance with law, I do not propose to deal with those questions. It will be open to both the sides to raise suitable contentions that may be open to them.
8. Before I part with this matter, I would express my concern over the prolongation of the control of the market committee, Bulsar by the petitioner and others who have lost credentials. About two years are over since this situation started persisting. It will be for the Government to see to it that it takes such steps as are necessary in the facts and circumstances of the case. At any rate, the election petition as filed by the petitioner before the Director would be disposed of in accordance with law. This is by way of suggestion and not by way of direction. I also would like to bring to the notice of the Government the want of any Rules in respect of the election Petitions and election process. If the rules are framed on the lines of similar provisions in municipal laws, much controversy could be avoided.
9. Writ Petition allowed.