9911796707
TMI Blog2020 (1) TMI 1463X X X X Extracts X X X X X X X X Extracts X X X X ..... ctor to Deputy Director, Varanasi communicated to him vide letter dated September 14, 2007. The power of revision when delegated to Director by virtue of section 33 becomes a function to be performed by Director under the Act, 1964 and, therefore, Director can authorize any other officer to perform all or any of his functions under the Act, 1964 which includes delegated powers to be performed by Director under section 32 of the Act, 1964 - the contention of learned counsel for the petitioners that power exercised by Deputy Director in deciding revision is bad in law as he had no jurisdiction to decide revision and Director had no power to authorize Deputy Director to decide revision, cannot be accepted. The issues answered against petitioners. - Misc. Single No. 3225, 3271 and 3272 of 2008. - - - Dated:- 21-1-2020 - SUDHIR AGARWAL J. Shafiq Mirza for the petitioners. The C. S. C. and N. C. Mehrotra for the respondents. JUDGMENT Heard Sri Shafiq Mirza, advocate, for the petitioner and learned standing counsel and Sri N. C. Mehrotra, advocate, for the respondents in all these writ petitions. 2. The petitioner in Writ Petition No. 3225 of 2008 (herei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) No. 6858 of 2007 was dismissed vide judgment dated September 17, 2007 with a direction to competent authority to decide revision within a period of one month from the date of receipt of certified copy. Consequently, the impugned revisional order has been passed on March 31, 2008 by the Deputy Director rejecting the petitioner's revision. 4. The learned counsel for petitioner, Sri Shafiq Mirza, in WP-1 has challenged the aforesaid order of revision on the ground that the Deputy Director had no authority or jurisdiction to decide revision inasmuch the Director, Mandi Samiti, himself was exercising delegated power and had no authority to further delegate or sub-delegate his power, therefore, sub- delegation by the Director to Deputy Director is wholly without jurisdiction. In this regard, he placed reliance on sections 2(h), 26I, 27, 33 and 33A of the Act, 1964 and rule 135 of the U. P. Krishi Utpadan Mandi Rules, 1965 (hereinafter referred to as the Rules, 1965 ). 5. On behalf of Mandi Samiti, counteraffidavit has been filed stating that validity of section 20 of the Act, 1964 has been upheld by this court. Further, the power to decide revision has been conferred by Boar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... harges and levies from the producer-seller ; and (ix) to make adequate arrangements for market intelligence with a view to posting the agricultural producer with the latest position in respect of the markets dealing with his produce. 11. Chapter 2 deals with Market Area and Market Yards and contains sections 5 to 11. Section 5 confers power upon Government whenever it is of opinion that it is necessary or expedient in the interest of public to regulate sale and purchase of any agricultural produce in any area, for that purpose it may declare that area as a market area by Notification in Gazette and after inviting objections such market area can be declared by State Government under section 6. Once a market area is declared, State Government by Notification in Gazette under section 7 may declare certain portion of market area as principal market yard and other portion as sub-market yard . It can also declare that whole-sale transactions of all or any of specified agricultural produce, in respect of a market area, shall be carried on only at a specified place or place within principal market yard by sub- market yard. Once a market is declared as per section 9 of the Act, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ervants appointed by it but the same have to be framed with previous approval of State Government. However, subject to superintendence of Board, general control and direction over all officers and servants of Board is vested in Director vide section 26G. Board may delegate its powers under the Act, 1964 to any such Committee appointed by it or to Director or Member Secretary or any other officer of Board by virtue of section 26-I. 16. Power and functions of Board are provided in section 26L and it reads as under : 26L. Powers and functions of the Board.-(1) The Board shall, subject to the provisions of this Act, have the following functions and shall have power to do anything which may be necessary or expedient for carrying out those functions- (i) superintendence and control over the working of the Market Committees and other affairs thereof including programmes under taken by such Committees for the construction of new market yards and development of existing markets and market areas ; (ii) giving such direction to Committees in general or any Committee in particular with a view to ensure efficiency thereof ; (iii) any other function entrusted to it by this Act ; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Director to conduct enquiry or institute proceeding against the Committee, its Chairman, Vice-Chairman, member or officer, and the Director shall act accordingly. (4) The director shall, for the purpose of holding any enquiry under this Act, have the same powers as are vested in a civil court under the Code of Civil Procedure, 1908, when trying a suit, in respect of the following matters, namely :- (a) summoning and enforcing the attendance of any person and examining him on oath ; (b) requiring the discovery and production of documents ; and (c) any other matters which may be prescribed. 18. Power to entertain revision has been conferred upon Board against an order or proceedings of a Committee under section 32 and it reads as under : 32. Powers of the Board to call for the proceedings of a Committee and pass orders thereon.-The Board may, for the purpose of satisfying itself as to the legality or propriety of any decision of, or order passed by, a Committee, at any time call and examine the proceedings of the Committee, and, where it is of the opinion that the decision or order of the Committee should be modified, annulled or reversed, pass such orders there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Officer or Servant of the Committee to undertake such measures as he may consider necessary, for the improvement and development of the Market Area, Principal Market Yard and Sub- Market Yards ; (iv) exercise such powers and pass such orders as he may deem necessary for proper functioning of and effective superintendence and control over the Committee and the Chairman, Vice-Chairman, Members, Officers and Servants of the Committee under the Act : Provided that such powers superintendence and control in so far as they relate to the officers and servants appointed by the Committee under sub-section (1) of section 23 of the Act, shall be exercised through, the Chairman of the Committee. (v) inspect or cause to be inspected any premises, vehicles or stocks for the purpose of holding any inquiry under sub-section (4) of section 27 of the Act. 23. It is no doubt true that a well-settled principle in law is, delegatus non potest delegare . A delegate has no power to delegate. The principle, however, has a different field of operation in the context of legislative powers vis-a-vis non-legislative/administrative powers. It is well-settled that delegation of power to legislate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Company Law Board [1966] 36 Comp Cas 639 (SC) ; AIR 1967 SC 295, the court said : . . . the maxim delegatus non potest delegare must not be pushed too far. The maxim does not embody a rule of law. It indicates a rule of construction of a statute or other instrument conferring an authority. Prima facie, a discretion conferred by a statute on any authority is intended to be exercised by that authority and by no other. But the intention may be negatived by any contrary indications in the language, scope or object of the statute. The construction that would best achieve the purpose and object of the statute should be adopted. (emphasis added) 25. In Gwalior Rayon Silk Mfg. (Wvg.) Co. Ltd. v. Assistant Commissioner of Sales Tax [1974] 33 STC 219 (SC) ; [1974] 94 ITR 204 (SC) ; [1974] 4 SCC 98, a Constitution Bench held that essential legislative functions consist in the determination or choosing of the legislative policy and it is formally has a binding rule of conduct, cannot be delegated by Legislature, nor is there any unlimited right of delegation inherent in the legislative power itself. The Legislature must retain in its own hands the essential legislative functions and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, whether individually or collectively or in a group of two or more, and may be delegated or entrusted by authorization to subordinates unless there be some rule of law restraining such delegation or authorisation. Every High Court consists of some administrative and minis terial staff which is as much a part of the High Court as an institution and is meant to be entrusted with the responsibility of discharging administrative and ministerial functions. There can be 'delegation' as also there can be 'authorization' in favour of the Registry and the officials therein by empowering or entrusting them with authority or by permitting a few things to be done by them for and on behalf of the court so as to aid the judges in discharge of their judicial functioning. Authorization may take the form of formal conferral or sanction or may be by way of approval or countenance. Such delegation or authorization is not a matter of mere convenience but a necessity at times. The judges are already overburdened with the task of performing judicial functions and the constraints on their time and energy are so demanding that it is in public interest to allow them to devote time and ene ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rector with reference to Board's resolution dated December 12, 1994 and January 19, 1998 and order dated August 13, 1999 and delegation of power by Director to Deputy Director, Varanasi communicated to him vide letter dated September 14, 2007. 34. The submission is that Director exercised power delegated to it by Board under section 33 and it is not Director's any of his functions under Act, 1964 and, therefore, section 2(h) which defines Director will not include within its ambit Deputy Director, Varanasi who has decided the revision in question. I find that almost similar question has been considered by the Supreme Court in Heinz India Pvt. Ltd. v. State of U. P. [2012] 50 VST 13 (SC) ; [2012] 5 SCC 443 wherein also revision was decided by an officer authorized by Director and court said as under (para 24, pages 29 and 30 in 50 VST) : 33. . . . It is manifest from a plain reading of the above that the expression 'Director' wherever used in the Act including section 33 thereof includes an officer authorised by the Director to perform all or any of his functions under the Act. Significantly enough neither before the High Court nor before us was it contend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Kailash Kumar's case [1980] (Supp) SCC 27 have gone unheeded. All that we need to add is that in order to make the Board's revisional power more effective and its exercise more transparent and credible, the Board would do well to delegate the power of hearing and disposal of the revision petitions to a senior and experienced officer who is well-versed in dealing with legal issues concerning assessment and/or determination of the liability under the Act. Beyond that it is neither necessary nor proper for us to say anything. Question No. 1 is answered accordingly. (emphasis added) 35. The power of revision when delegated to Director by virtue of section 33 becomes a function to be performed by Director under the Act, 1964 and, therefore, Director can authorize any other officer to perform all or any of his functions under the Act, 1964 which includes delegated powers to be performed by Director under section 32 of the Act, 1964. In view thereof I find myself unable to accept the contention of learned counsel for the petitioners that power exercised by Deputy Director in deciding revision is bad in law as he had no jurisdiction to decide revision and Director had no po ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
