Nakka Siddaiah and Others Vs. State of A.P. and Others - Court Judgment

Excerpt:
civil - statutory authority - section 4 (d) of andhra pradesh panchayat raj act, 1994 - chief executive officer (ceo) appointed for purpose of carrying out provisions of act is statutory authority - ceo bound to act within four corners of act - ceo responsible for implementing resolutions of zila parishad and standing committee and cannot usurp power of standing committee - statutory authority cannot pass any order on dictation of higher authority who has no role to play under statute. - maximssections 2(xv) & 3(1) & (3): [v.v.s. rao, n.v. ramana & p.s. narayana, jj] ghee as a live stock product held, [per v.v.s. rao & n.v. ramana, jj - majority] since ages, milk is preserved by souring with aid of lactic cultures. the first of such resultant products developed is curd or yogurt (dahi) obtained by fermenting milk. dahi when subjected to churning yields butter (makkhan) and buttermilk as by product. the shelf life of dahi is two days whereas that of butter is a week. by simmering unsalted butter in a pot until all water is boiled, ghee is obtained which has shelf life of more than a year in controlled conditions. ghee at least as of now is most synthesized, ghee is a natural product derived ultimately from milk. so to say, milk is converted to dahi, then butter. scientifically or common sense point of view, even though ghee is not directly obtained from milk (which is certainly a product of cow/buffalo), it is certainly a product of a product of livestock i.e., cow or buffalo. it would be rather illogical or irrational to say that ghee is not a milk/dairy product or to say that it is not a product of livestock. section 2(x) and 2(iv) of the act used the plural products of livestock. the legislative intention is very clear that not only a product of livestock like milk (when notified by government), butter etc., are products of livestock but even derivative items (derived from a product of livestock) are intended to be product of livestock for the purpose of the act. thus the term ghee is to be interpreted on the basis of expression products of livestock as defined in section 2(xv) of the act. whatever products are declared as such by the government by notification, they become products of livestock for purpose of the act. consequently it was held that ghee is the product of livestock and by reason of power conferred under section 3(1) read with section 3(3) of the act on them it is competent for the government to declare ghee as product of livestock for the purpose of regulating its purchase and sale, in any notified market area. [per p.s. narayana, j,(dissenting)]if livestock or agricultural produce and the categories thereof had been specified in the statute itself by appending in the schedule or otherwise, that would stand on a different footing from the present provisions of the act which contemplate the issuance of notifications in accordance with the procedure ordained by the provisions specified supra. in view of the clear definition of the livestock and products of livestock, the ghee being derivative of butter or cream, if the language employed in definition to be taken as they stand, the only conclusion would be is that the ghee would not fall within ambit of the definitions aforesaid. sections 4 & 3: [v.v.s. rao, n.v. ramana & p.s. narayana, jj] declaration of notified area held, it is only under section 3 that government are required to publish draft notification inviting objections and section 3(3) mandates to consider objections and suggestions before issuing declaration order. it is very conspicuous that section 4 does not contemplate any draft notification inviting objections and suggestions before either constituting market committee, establishing notified market area or declaring notified market area for the purpose of levy of market fees. thus, except ordaining government to issue preliminary/draft notification inviting objections at the time of issuing declaration order under section 3(3) of the act nowhere much less under section 4 contemplates issuing a notification inviting objections. when the legislature has chosen to exclude principles of natural justice, the court cannot introduce rule of audi alteram partem and render statutory provisions unworkable. in such a case, maxim, expressum facit cessare tacitum (when there is express mention of certain things, then anything not mentioned is excluded) would apply. section 7: [v.v.s. rao, n.v. ramana & p.s. narayana, jj] levy of market fee element of quid pro quo - held, levying fees and tax are two forms of exercise of sttaes taxing power. there is no quid pro quo between tax payer and public authority as tax is a part of common burden. it is also well settled that fee is charge for special service or a benefit given to a class of individual fee payers and fee collected need not have correlation with actual service in exactitude but if it is shown that substantial portion of the fee is expended or the purpose for which it is levied, it would be justified. expressum facit cessare tacitum sections 4 & 3: [v.v.s. rao, n.v. ramana & p.s. narayana, jj] meaning when there is express mention of certain things, then anything not mentioned is excluded. - further more, it is now a well settled principle of law that a statutory authority cannot pass any order on the dictation of a higher authority, who has no role to play under the statute.orders.b. sinha, cj 1. in this writ application an order dated 12-5-2000 passedby the chief executive officer, chittoor zilla parishad is in question. the impugned order reads thus :'the superintending engineer, panchayat raj, cuddapah in his reference no.1 has requested to allot ac.0.50 cents of land out of the land allotted for construction of junior college buildings from out of the land of gurramkonda z.p, high school for construction of gurramkonda mandal parishad office. as per this office proceedings cited above, orders were issued allotting ac. 1.44 cents of land out of ac.4.44 cents of land under the use of gurramkonda z.p. high school, for construction of gurramkonda junior college buildings. therefore, as per above, considering the request of the superintending engineer, panchayat raj as per reference no.1 orders are hereby issued allotting ac.0.44 cents for construction of gurramkonda mandal parishad building, from out of the site of ac. 1.44 cents allotted for construction of gurramkonda junior college buildings. orders issued as per the note orders dated 24-4-2000 of the district collector and special officer, zilla parishad, chittoor'. 2. the sole question raised in this application is as to whether the said order could be passed by the chief executive officer of the zilla parishad.3. it is not in dispute that a deed of gift was executed by the father of the petitioners in respect of ac.4.44 cents in s.no.118, 120 and 121 of gurramkonda village for construction of high school building. the purpose of such grant is besides education community utility and development activities. it is not in dispute that a school building has been constructedon the said land and now a junior college is also being run. by reason of the impugned order, as noticed hereinbefore, the chief executive officer purports to have allotted ac.0.44 cents of land for construction of gurramkonda mandal parishad building.4. in this writ petition, it is not necessary for this court to consider the larger question viz., whether construction of a building for the aforementioned purpose would be in consonance with the objective of grant or not, as the writ petition can be disposed of on another ground.5. the andhra pradesh panchayat raj act, 1994, (hereinafter referred to as 'the act' for the sake of brevity) was enacted to provide for the constitution of gram panchayats, mandal parishads and zilla parishads and for matters connected therewith or incidental thereto. section 186 of the act provides for appointment of chief executive officer and his powers and functions. clause (d) of sub-section (4) of section 186 of the act states that subject to the provisions of the act, and the rules made thereunder, the chief executive officer shall be responsible for implementing the resolutions of the zilla parishad and of the standing committees thereof. clause (iv) of sub-section (1) of section 187 of the act provides for constitution of a standing committee for education and medical services. in terms of section 188 of the act, the district collector is only one of the permanent invitees to zilla parishad. no provision has been pointed out to us for showing that the chief executive officer or for that matter the district collector can allot the land belonging to the zilla parishad for any purpose whatsoever.6. the chief executive officer was appointed for the purpose of carrying out the provisions of the act. he is bound to act within the four comers of the statute, being a statutory authority. in terms ofclause (d) of sub-section (4) of section 186 of the act he is merely responsible for implementing the resolutions of the zilla parishad and of the standing committee. he cannot usurp the power of the standing committee and take a decision himself. such a power is not countenanced under the act. any action taken by a statutory authority de hors the statute would be ultra vires. further more, it is now a well settled principle of law that a statutory authority cannot pass any order on the dictation of a higher authority, who has no role to play under the statute. reference in this connection may be made to commissioner of police, bombay v. gordhandas bhanji, : [1952]1scr135 .7. for the reasons aforementioned, the impugned order cannot be sustained. it is set aside accordingly. the writ petition is allowed. however, in the facts and circumstances of this case, there will be no order as to costs.

Judgment:
ORDER

S.B. Sinha, CJ

1. In this writ application an order dated 12-5-2000 passedby the Chief Executive Officer, Chittoor Zilla Parishad is in question. The impugned order reads thus :

'The Superintending Engineer, Panchayat Raj, Cuddapah in his reference No.1 has requested to allot Ac.0.50 cents of land out of the land allotted for construction of Junior College Buildings from out of the land of Gurramkonda Z.P, High School for construction of Gurramkonda Mandal Parishad Office.

As per this Office proceedings cited above, orders were issued allotting Ac. 1.44 cents of land out of Ac.4.44 cents of land under the use of Gurramkonda Z.P. High School, for construction of Gurramkonda Junior College Buildings.

Therefore, as per above, considering the request of the Superintending Engineer, Panchayat Raj as per reference No.1 orders are hereby issued allotting Ac.0.44 cents for construction of Gurramkonda Mandal Parishad Building, from out of the site of Ac. 1.44 cents allotted for construction of Gurramkonda Junior College Buildings.

Orders issued as per the note orders dated 24-4-2000 of the District Collector and Special Officer, Zilla Parishad, Chittoor'.

2. The sole question raised in this application is as to whether the said order could be passed by the Chief Executive Officer of the Zilla Parishad.

3. It is not in dispute that a deed of gift was executed by the father of the petitioners in respect of Ac.4.44 cents in S.No.118, 120 and 121 of Gurramkonda Village for construction of High School Building. The purpose of such grant is besides education community utility and development activities. It is not in dispute that a school building has been constructedon the said land and now a Junior College is also being run. By reason of the impugned order, as noticed hereinbefore, the Chief Executive Officer purports to have allotted Ac.0.44 cents of land for construction of Gurramkonda Mandal Parishad Building.

4. In this writ petition, it is not necessary for this Court to consider the larger question viz., whether construction of a building for the aforementioned purpose would be in consonance with the objective of grant or not, as the writ petition can be disposed of on another ground.

5. The Andhra Pradesh Panchayat Raj Act, 1994, (hereinafter referred to as 'the Act' for the sake of brevity) was enacted to provide for the constitution of Gram Panchayats, Mandal Parishads and Zilla Parishads and for matters connected therewith or incidental thereto. Section 186 of the Act provides for appointment of Chief Executive Officer and his powers and functions. Clause (d) of sub-section (4) of Section 186 of the Act states that subject to the provisions of the Act, and the rules made thereunder, the Chief Executive Officer shall be responsible for implementing the resolutions of the Zilla Parishad and of the Standing Committees thereof. Clause (iv) of sub-section (1) of Section 187 of the Act provides for constitution of a Standing Committee for Education and Medical Services. In terms of Section 188 of the Act, the District Collector is only one of the permanent invitees to Zilla Parishad. No provision has been pointed out to us for showing that the Chief Executive Officer or for that matter the District Collector can allot the land belonging to the Zilla Parishad for any purpose whatsoever.

6. The Chief Executive Officer was appointed for the purpose of carrying out the provisions of the Act. He is bound to act within the four comers of the statute, being a statutory authority. In terms ofClause (d) of sub-section (4) of Section 186 of the Act he is merely responsible for implementing the resolutions of the Zilla Parishad and of the Standing Committee. He cannot usurp the power of the Standing Committee and take a decision himself. Such a power is not countenanced under the Act. Any action taken by a statutory authority de hors the statute would be ultra vires. Further more, it is now a well settled principle of law that a statutory authority cannot pass any order on the dictation of a higher authority, who has no role to play under the statute. Reference in this connection may be made to Commissioner of Police, Bombay v. Gordhandas Bhanji, : [1952]1SCR135 .

7. For the reasons aforementioned, the impugned order cannot be sustained. It is set aside accordingly. The writ petition is allowed. However, in the facts and circumstances of this case, there will be no order as to costs.