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TMI Blog1966 (1) TMI 84X X X X Extracts X X X X X X X X Extracts X X X X ..... (3) of S. 1 authorized the State Government to fix a date for the commencement of the Act. By notification, dated January 9, 1963, the Government of Mysore notified that the said Act shall come into force with effect from February 1, 1963. Immediately after the Act was assented to by the President, the Governor of Mysore, in exercise of the powers vested in him under proviso to Art. 309 of the Constitution and other powers enabling him in that behalf, framed rules called "the Mysore General Services (Revenue Subordinate Branch) Village Accountants (Cadre and Recruitment) Rules, 1961," in order to make recruitment to the posts of village accountants. The rules regulated the pay and other conditions of service of the village accountants. By a notification issued on 6 January 1963, the Government of Mysore directed the Deputy Commissioners to appoint persons recruited under the rules and relieve the then holders of their offices and if the number of candidates fell short, to continue the existing holders in their posts. There was a further direction that other village officers, viz., patels, thoties and talaries, whose posts were also abolished under the Act, should be co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n granted or continued in respect of, or annexed to, any village office, by the State. Section 2(1)(g) defines "holder of a village office" or "holder" to be a person having an interest in a village office under an existing law relating to such office. Sub-clause (n) of S. 2(1) defines "village office" as follows : "'village office' means every village office, to which emoluments have been attached and which was held hereditarily before the commencement of the Constitution under an existing law relating to a village office for the performance of duties connected with the administration or collection of the revenue or with the maintenance of order or with the settlement of boundaries or other matter of civil administration of a village, whether the services originally appertaining to the office continue or have ceased to be performed or demanded and by whatsoever designation the office may be locally known" Section 4 provides for the abolition of all village offices together with the incidents thereof. Sub-section (1) of S. 4 provides that all village offices shall be abolished; Sub-sec. (2), that all incidents appertaining to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onstitute a piece of colourable legislation. In K. C. Gajapati Narayan Deo v. State of Orissa 1953 AIR(SC) 375 ], it was contended that the Orissa Estates Abolition Act, 1952, was a piece of colourable legislation and as such void. Dealing with this argument, Mukherjee, J. (as he then was), stated, at p. 379 as follows : "It may be made clear at the outset that the doctrine of colourable legislation does not involve any question of bona fides or mala fides on the part of the legislature. The whole doctrine resolves itself into the question of competency of a particular legislature to enact a particular law. If the legislature is competent to pass a particular law, the motives which impelled it to act are really irrelevant. On the other hand, if the legislature lacks competency, the question of motive does not arise at all. Whether a statute is constitutional or not is thus always a question of power. A distinction, however, exists between a legislature which is legally omnipotent like the British Parliament and the laws promulgated by which could not be challenged on the ground of incompetency, and a legislature which enjoys only a limited or a qualified jurisdiction. If the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rtain whether the legislature by device purports to make a law which, though in form appears to be within its sphere, in effect and substance, reaches beyond it. If, in fact, it has power to make the law, its motives in making the law are irrelevant." On an examination of the material provisions of the impugned Act it is clear that its object and intendment is to abolish all the hereditary village offices, viz., patels, shanbhogs, etc., which were held hereditarily before the commencement of the Constitution and the emoluments appurtenant thereto.In Dasaratha Rama Rao v. State of Andhra Pradesh 1961 AIR(SC) 564 ], this Court held that S.6(1) of the Madras Hereditary Village Offices Act, 1895 3 of 1895, in so far as it makes discrimination on grounds of descent only, is violative of the fundamental right under Art. 16(2) of the Constitution and is void. There, this Court pointed out that the office of village munsif under the said Act was an office under the State within the meaning of Cls. (1) and (2) of Art. 16. At p. 572 it was observed as follows : "We are of the view that there is nothing in the nature of the office which takes it out of the ambit of Cls. (1) and ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve the present incumbents to enable it to appoint persons of its choice. We are unable to accede to this contention. As pointed out by this Court in Gajapati Narayan Deo case 1953 AIR(SC) 375 ], (vide supra) the whole doctrine of colourable legislation resolves itself into the question of competency of a particular legislature to enact a particular law. If the legislature is competent to pass the particular law, the motives which impel it to pass the law are really irrelevant. It is open to the Court to scrutinize the law to ascertain whether the legislature, by device, purports to make a law which, though in form appears to be within its sphere, in effect and substance, reaches beyond it. Beyond attempting the argument that the impugned Act is a piece of colourable legislation, the learned counsel for the appellant has not succeeded in substantiating his contention that the Act and the rules made thereunder are merely a device for removing the present incumbents from their office. The provisions of the Act and the rules made thereunder plainly provide for the abolition of hereditary village offices and make those offices stipendiary posts. The Act makes no secret of its intentio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that there is no absolute right of hereditary succession to that office and that the principle of heredity does not apply to that office. The correct position with regard to karnams (shanbhogs) in South Kanara districts will be evident from the following extracts : "Proceedings of the Board of Revenue, Madras, dated 21 November 1868, read as follows :" The village offices in Canara are not hereditary by law but good policy requires that the hereditary principle should be observed as far as the efficiency of administration permits in order that the value of the office may be enhanced as much as possible and that the services of men of good social standing whom the emoluments of the office alone would not attract may be procured ". Standing order, dated 7 July 1883, of the Collector, South Kanara, reads :" Subordinate revenue offices in the district are hereby directed to bear in mind that in submitting nominations to the posts of village officials, the principle to be invariably followed is that the heir of the last permanent incumbent is the man entitled to the vacancy, unless he is clearly unfit to hold it. In the case of a minor heir, or one disqualifi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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