JUDGMENT
M.G. Gaikwad, J.
1. Heard learned Counsel, appearing for the respective parties in both writ petitions.
2-3. Rule. Rule is made returnable forthwith, with the consent of learned Counsel, appearing for respective parties, both these petitions are heard finally and decided.
4. These two writ petitions are decided by this common judgment as common question of law as to “whether a delegatee can sub-delegate his powers to other authority” arises in these matters.
5. By preferring Writ Petition No. 4923/2006, the petitioner seeks relief to quash and set aside the order dated 30-5-2006 passed by the Collector, Aurangabad delegating the powers of hearing to the Sub-Divisional Officer, Aurangabad, as well as to quash and set aside the order dated 19-6-2006 passed by the Sub-Divisional Officer, Aurangabad, rejecting the objections filed by the petitioner.
In Writ Petition No. 5138/2006, the petitioner challenged the order dated 1-6-2006 passed by the Sub-Divisional Officer, Selu, District Parbhani, rejecting the objections filed by the petitioner and claims a relief to quash and set aside the same.
6. The factual aspects in both these petitions are summarized as under.
The petitioner in Writ Petition No. 4923/2006 is an elected Councillor of Municipal Council, Paithan. Municipal Council, Paithan is a “C” class Municipal Council. The General Elections of the said Council are due in the month of December, 2006. The State Election Commission, on 3-5-2005, published notification, exercising the powers conferred on it under Article 243-ZA of the Constitution of India, delegating his powers to the District Collectors in the State of Maharashtra for preparation of drafts of wards of the Municipal Councils in the State of Maharashtra, as per provisions of Sections 5, 10 and 10A(4) of the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965 (hereinafter referred to as “the Act”). Under Clause (9) of the said Notification, it was declared that for “C” class Municipal Councils, the Collector or the Officers authorized by him were empowered to hear objections for constitution of the wards and after hearing the said objections, further powers were vested to the Divisional Commissioners to publish the notification/s about the wards constituted. By another Notification dated 12-5-2006, the Collector called objections from the citizens in relation to the constitution of wards and the reservation thereof for various categories of the citizens. In pursuance with the said notification, the petitioner filed his objections on 19-5-2006 before the Collector and raised certain objections for reservation of various wards and the main objection was that the geological conditions as well as population ratios were not considered while constituting different wards and reserving the same for different categories. The Sub-Divisional Officer, Aurangabad, by his order dated 19-6-2006, rejected the said objections and submitted his final notification to Divisional Commissioner. These objections were alleged to have been heard by the Sub-Divisional Officer by the order of the Collector dated 30-5-2006.
Feeling aggrieved with the rejection of objections, petitioner preferred present writ petition and claimed relief to quash the order passed by the Collector, delegating his powers to the Sub-Divisional Officer as well as the orders passed by the Sub-Divisional Officer.
The petitioner, in Writ Petition No. 5138/2006, while challenging the order of the Sub-Divisional Officer, Selu, dated 1-6-2006, came with a case that ward No. 14 of Pathri Municipal Council is reserved for Scheduled Tribes though there is no population of that tribe in the said ward. This objection was raised by the petitioner before the Collector; however; the Collector, who was empowered by the State Election Commission, instead of personally hearing those objections, delegated his powers to the Sub Divisional Officer, Selu. The Sub-Divisional Officer, Selu rejected the objections illegally without considering the genealogical conditions of the ward as well as without following population ratio while reserving the ward.
7. On behalf of respondents No. 2 and 3 in both writ petitions, affidavit-in-reply is filed supporting the action of the Sub-Divisional Officer. The first contention raised on behalf of the respondents is that the petitioners submitted to the jurisdiction of the Sub-Divisional Officer by filing objection petition and participated in the hearing. Petitioner, therefore, cannot challenge the decision after hearing. Another contention raised is that the notification issued by the Election Commissioner for formation of wards of Municipal Councils dated 3-5-2005 clearly shows that the powers have been delegated by the State Election Commission to the District Collector and by general order dated 10-5-2006, the Election Commissioner himself delegated powers to the Sub-Divisional Officer. The order passed by the Collector, therefore, is nothing but transmission of the order of the Election Commissioner. As such, there is no sub-delegation of powers by the Collector to the Sub Divisional Officer. Hence, the petitions are without any merit and need to be dismissed.
8. On behalf of the petitioners, learned advocates Shri Sapkal and Shri Bayas challenged the impugned orders on the grounds/submissions that the State Election Commission exercising his supervision and control for the elections can delegate his powers and the powers have been delegated to the Collector; however, the Collector further sub-delegated his powers to the Sub Divisional Officer. Further sub-delegation of powers is illegal. Hence, the order passed by the Sub-Divisional Officer in formation of constituencies/wards and reservation of the same for different categories is an order without jurisdiction. Hence, same needs to be quashed and set aside by allowing these writ petitions.
9. On behalf of the respondents, learned advocate Shri S.T. Shelke advanced submission that the challenge in the present writ petitions are to the actions of the Election Commission in respect of the elections of the Municipal Councils. Such action cannot be entertained while exercising the writ jurisdiction. He also advanced submission that the Commissioner, by exercising his general powers under Section 10(4) of the Act authorized all Sub Divisional Officers to hear the objections, and the Collector transmitted this order to the Sub Divisional Officer. It is thus not a case of delegatee sub-delegating his powers to any other authority. Hence, both writ petitions are without any merit and needs to be dismissed.
10. In view of rival submissions, advanced on behalf of both the sides, the main points those arise for consideration are:
(a) Whether the State Election Commission delegated his powers to the Sub Divisional Officers to hear the objections for formation of wards?
(b) Whether the delegatee i.e. the Collector of each District sub-delegated his powers to the Sub-Divisional Officers? and
(c) If yes, whether such sub-delegation of powers is permissible?
11. Both the sides relied upon the provisions of Section 10 and 10A of the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965 in support of their respective contentions. Section 10 of the Act deals with “division of municipal area into wards and reservation of wards for women, Scheduled Castes and Scheduled Tribes”. Section 10A of the Act deals with the powers of State Election Commissioner and Sub-section (1) of Section 10A specifies that the superintendence, direction and control of the preparation of electoral rolls for, and the conduct of, all elections to the Municipal Councils vest in the State Election Commissioner. Sub-section (2) of Section 10A empowers the State Election Commissioner to, by order, delegate any of his powers and functions to any officer of the Commission, or any officer of the State Government not below the rank of “Deputy Collector or the Chief Officer of a Council”. Sub-section (3) of Section 10A states that all such officers and the staff appointed by the Commission for preparation of electoral rolls and conduct of elections of Municipal Councils under this Act or the rules shall function under the superintendence, direction and control of the State Election Commissioner.
These provisions are clear that in the matter of election of Municipal Councils, the superintendence, direction and control over the elections of Municipal Councils are vested in the State Election Commissioner. The State Election Commissioner is empowered to delegate any of his powers and functions to the officers of the State Government but not below the rank of Deputy Collector. Thus, the delegation of powers by the State Election Commissioner is permissible under these statutory provisions. The State Election Commissioner is empowered to delegate his powers to the Sub-Divisional Officer also. None of the petitioners challenged this power of the State Election Commissioner to delegate his powers to the officers not below the rank of the Sub-Divisional Officers. The order of the Sub-Divisional Officers is challenged in both the petitions on the ground that the State Election Commissioner did not delegate his powers to the Sub Divisional Officers as authorized under Sub-section (2) of Section 10A of the Act. The action of Sub-Divisional Officers is tried to be justified on behalf of the respondents stating that the Election Commissioner himself delegated the powers to the Sub Divisional Officers and according to respondents, it is not a case of sub-delegation of powers by the delegatee.
12. The main question for consideration is as to whether the Sub-Divisional Officers while passing the orders acted on the directions of the State Election Commission i.e. whether the powers are delegated to them by the State Election Commission, as contended by the respondents or whether it is a case of sub-delegation of powers by the Collector to the Sub-Divisional Officers.
13. As stated above, both the sides admitted that the State Election Commissioner can delegate his powers and the challenge is not to the powers of the State Election Commissioner. The dispute is as to whether the Commissioner delegated his powers to the Sub-Divisional Officer. Learned advocates Shri Sapkal and Shri Bayas, appearing on behalf of the petitioners drew our attention to Notification dated 3-5-2005 (Exhibit-B), issued by the State Election Commission. Exercising its powers under Sections 5, 10A(4) of the Act, the State Election Commissioner, as per Clause (1) of this Notification, delegated his powers to the Collector for constitution of the wards and reservation of the seats. Clause (6) of the Notification clarifies that in relation to “C” class Municipal Councils, the drafts of constitution of the wards and fixing members of the Councils, the Collector is required to submit the draft to Divisional Commissioner and the Divisional Commissioner was supposed to give approval for the same. Clause (9) of the Notification empowers the Collector to hear the objections. This clause further lays down that the Collector or the officer duly authorized by him may hear the objections. This Notification is clear that the Commissioner has delegated his powers for constitution of the wards to the District Collector. The order under challenge passed by the Sub-Divisional Officer makes reference of letter dated 30-5-2006 whereby the Collector authorized the Deputy Collector to hear the objections. Perusal of the order dated 30-5-2006 (Exhibit-D), passed by the Collector, makes it clear that the Sub-Divisional Officers of different sub-divisions mentioned in the letter were appointed by the Collector to hear the objections. These orders are thus clear that the District Collectors to whom the Election Commissioner had delegated powers of hearing the objections, sub-delegated their powers to the Sub-Divisional Officers.
14. On behalf of the respondents, relying upon the letter dated 10-5-2006, issued by the State Election Commissioner, submission is advanced that the powers were delegated to the Sub Divisional Officers by the Election Commissioner himself and not by the Collector. Letter dated 10-5-2006 is issued by the Deputy Secretary of the State Election Commission and the same is addressed to all the Collectors of the Districts in the State of Maharashtra. By this letter, it is informed that the draft notification in respect of constitution of the wards is published on 29-1-2006 as per the provisions of the Act. Seven days time needs to be given for hearing the objections. The hearing in relation to such objections was supposed to be completed before 17-6-2006. This letter also mentions that the objections in relation to the wards pertaining to “C” class Municipal Councils can be delegated to the Sub Divisional Officers. However, such objections in relation to “A” and “B” classes Municipal Councils need to be heard by the Collector or the Additional Collector. This letter authorized the Collectors to sub-delegate their powers to the Sub Divisional Officers. Plain reading of this letter clarifies that the Commissioner has not delegated his powers directly to the Sub-Divisional Officers, but letter mentions that the Collector may delegate his powers to the Sub-Divisional Officers. Hence, the documents referred above make it clear that the State Election Commissioner has not delegated his powers to the Sub Divisional Officers. However, the Notification issued by the State Election Commissioner on 3-5-2005 is clear that the Commissioner has delegated the powers to the Collector to hear the objections. Letter dated 10-5-2006 mentions that the Collector may sub-delegate these powers to the Sub-Divisional Officers, but the Commissioner has not delegated the powers to the Sub-Divisional Officers directly.
15. As referred to above, the various orders make it clear that the powers of hearing of objections for the constitution of the wards have been delegated by the State Election Commissioner to the Collectors and the powers have not been delegated to the Sub Divisional Officers though letter dated 10-5-2006 mentions that the Collector may empower the Sub-Divisional Officers to take hearing of objections. The order dated 30-5-2006 (Exhibit-D) in Writ Petition No. 4923/2006 and the order dated 25-5-2006 passed by the Collector, Parbhani make it clear that they have delegated their powers to respective Sub Divisional Officers and there is no order from the State Election Commissioner delegating his powers to the Sub Divisional Officers.
16. Learned advocate Shri S.T. Shelke, appearing on behalf of the State Election Commission submitted that the letter dated 10-5-2006 is a general administrative order, by which the Sub-Divisional Officers are authorized to take hearing. It is not a case of sub-delegation of powers. This submission advanced is without any merit. No doubt, under Sub-section (4) of Section 10A of the Act, the State Election Commissioner is empowered to issue special or general orders for free and fair elections. There is no dispute about these powers of the State Election Commission. However, this Sub-section (4) itself directs that such general orders or directions should not be inconsistent with the provisions of the Act. As regards delegation of the powers of hearing, there is specific provision under Sub-section (2) of Section 10A which empowers to the Collector to delegate his powers of hearing of objections to the officers of the State Government not below the rank of the Deputy Collector. In the present matters, those powers have been delegated to the Collector. There was no prohibition on the Commission to delegate the powers of hearing to the Deputy Collectors as is permissible under Sub-section (2) of Section 10A of the Act, but the Commission delegated these powers to the Collectors. The Collectors of Districts Aurangabad and Parbhani in the present two matters further delegated their powers of hearing to respective Sub Divisional Officers. Hence, the submission of learned advocate Shri Shelke that by general order, the State Election Commissioner delegated the powers to the Sub Divisional Officers cannot be accepted.
17. Learned advocate Shri Sapkal and Shri Bayas, appearing on behalf of the petitioners placed reliance on the decision of the Apex Court in the matter of Hari Chand Aggarwal v. The Batala Engineering Co. Ltd. and Ors. , wherein the Apex Court held thus
The expressions or words which have been used in the notification must be read as such and not in any other manner.
In that case, the District Magistrates were empowered to act under Section 29 of the Defence of India Act, 1962. Those powers were alleged to have been delegated to Additional District Magistrates, the Apex Court held that-
When the notification empowers the District Magistrates, the notification cannot be read to mean that the District Magistrate includes Additional District Magistrate.
This aspect has been considered by the Apex Court in the case of Director General, E.S.I, and Anr. v. T. Abdul Razak, etc., . In that case, Standing Committee of the Corporation empowered Director General to delegate the powers or duties to him and the Corporation also had passed resolution. Relying upon Rule 16(2) of the Employees State Insurance (Central) Rules, 1950, it has been held that the Director General was authorized to delegate his powers and such powers are held valid. However, the conferment of such powers under resolution of the Corporation are held invalid.
In the case of A.K. Roy and Anr. v. State of Punjab and Ors. , the Apex Court held thus
The maxim delegatus non potest delegate merely indicates that this is not normally allowable but the Legislature can always provide, for sub-delegation of powers.
The principle laid down in this case by the Apex Court is that delegatee cannot sub-delegate his powers unless same is allowable by a specific provision in the Statute.
In the case of State of M.P. v. Bhupendra Singh, , the Apex Court held
The power which has been delegated to the District Magistrate cannot be exercised by the Additional District Magistrate. Because the powers of granting consent under Section 7 of the Explosive Substances Act, 1908 have been delegated by the Central Government to the District Magistrate.
Thus, the ratio in the abovereferred cases is clear that delegatee cannot sub-delegate his powers. The act of the Collectors to authorize the Sub Divisional Officers to hear the objections amounts to sub-delegation of their powers which powers were delegated to them by the State Election Commissioner.
18. On behalf of the respondents, an attempt is made to justify the action of the Sub Divisional Officers and submission is advanced that as the petitioners had submitted to the jurisdiction of the Sub Divisional Officers and participated in the hearing, they cannot be allowed to challenge the order which is passed against them. In support of this submission, reliance was tried to be placed on the decisions of the Apex Court in the case of Surendra Chauhan v. State of M.P., and in the case of State of U.P. and Ors. v. Pradhan Sangh] Kshettra Samiti and Ors. etc., . In the first case of Surendra Chauhan, the respondents themselves had preferred appeal before the Tribunal where the decision was against them and they challenged the constitution of Tribunal to hear the appeal. In view of this fact, the Apex Court held
The constitution of Tribunal is valid and apart from this fact, the respondents who had preferred appeal before the Tribunal and took part in the hearing without raising objection about the competency of the Tribunal, at later stage, they cannot be allowed to raise the said contention.
In the case of State of U.P. v. Pradhan Singh, Their Lordships of the Apex Court held that in the electoral matters, delimitation of panchayat area or constituencies in said area or to allotment of seats to constituencies in the said area after election notification was issued cannot and should not be entertained.
The ratio in these cases is not applicable to the facts of the present cases. The objection was raised at the initial stage itself. As per statutory provisions, from the citizens, objections were called for constitution of wards and it is not a case that objection was raised after the election notification. It is also not a case that the petitioners have submitted their objections before the Sub-Divisional Officers. In both the matters, objections have been submitted before the Collector to whom the powers were delegated by the Election Commissioner. However, the Collector forwarded the same for hearing to the Sub Divisional Officers, by sub-delegating his powers, which is not permissible.
19. On behalf of the respondent – State Election Commission, maintainability of the writ petition is challenged and submission is advanced that in the election matter, the superintendence and control over the elections being of the State Election Commission, the act of the Election Commission cannot be challenged by way of writ petition. In support of this submission, reliance was placed on the decision of the Apex Court in the case of Election Commission of India through Secretary v. Ashok Kumar and Ors. and in the case of Union of India v. Association for Democratic Reforms and Anr. with Peoples Union for Civil Liberties and Anr. v. Union of India and Anr. reported in 2002 AIR SCW 2186. In the first case, the Election Commissioner had issued directions by Notification dated 28-9-1999 directing the counting of votes by mixing of votes of all booths. The said notification was challenged and interim orders were passed by the High Court suspecting that notification. The Apex Court held that this order is not proper. It is observed by the Apex Court that
The term “election” as occurring in Article 329 has been held to mean and include the entire process from the issue of the Notification under Section 14 of the Representation of the People Act, 1951.
Their Lordships of the Apex Court observed that the election disputes are not just private civil disputes between two parties and held that the order of the High Court is not justified. It is observed that the Election Commission does have a power to supervise and direct the manner of counting of votes. The alleged mala fides were held to be without any material and the order is said to be not justified. Their Lordships further observed that
The Courts should act with reluctance and shall not act except on a clear and strong case for its intervention having been made out by raising the pleas with particulars and precision and supporting the same by necessary material.
In the case of Union of India v. Association for Democratic Reforms and Anr. etc., Their Lordships of Apex Court held thus
The jurisdiction of the Election Commission is wide enough to include all powers necessary for smooth conduct of elections and the word “election” is used in a wide sense to include the entire process of election which consists of several stages and embraces many steps.
However, it is further held that
The limitation on plenary character of power is when the Parliament or State Legislature has made a valid law relating to or in connection with elections, the Commission required to act in conformity with the said provisions.
In absence of any statutory provision, the Election Commission can issue directions to fill vacuum till there is no legislation on the subject.
As stated earlier, in the present matters, no-one has raised dispute about Election Commissioner’s powers to delegate his powers in certain matters. The State Election Commissioner delegated his powers to the Collector in respect of hearing the objections; however, the Collector sub-delegated his powers to the Sub Divisional Officers. Said act of the Collector is not permissible. Hence, the orders passed in both the matters by the Sub Divisional Officers are not sustainable as they are not the officers to whom the State Election Commissioner delegated powers to hear the objections.
20. In view of the facts, circumstances and the legal position discussed to above, the orders passed by the Sub Divisional Officers need to be quashed. The respective Collector, to whom the powers to hear the objections have been delegated by the State Election Commission, needs to be directed to hear the objections raised by the petitioners while constituting the wards and making reservation of the seats for General Elections of the Municipal Councils at Paithan in Aurangabad District and at Pathri in Parbhani District.
21. In the result, we allow both writ petitions in the following terms.
(a) The order dated 30-5-2006 passed by the Collector, Aurangabad sub-delegating the powers to the Sub Divisional Officer, Aurangabad as well as the order dated 19-6-2006 passed by the Sub Divisional Officer, rejecting the objection filed by the petitioner are hereby quashed and set aside.
We hereby direct the District Collector, Aurangabad to hear the objections dated 19-5-2006 submitted by the petitioner in Writ Petition No. 4923/2006 before the Collector, Aurangabad in relation to constitution of the Ward No. 10 of Municipal Council, Paithan.
(b) The order dated 1-6-2006 passed by the Sub Divisional Officer, Selu, rejecting the objections submitted on 17-5-2006 by the petitioner is hereby quashed and set aside.
The District Collector, Parbhani is hereby directed to hear the objections dated 17-5-2006 filed by the petitioner in Writ Petition No. 5138/2006 in relation to constitution of Ward No. 14 and reservation of the same.
(c) The objections of the petitioners in both writ petitions shall be heard by the respective Collectors after giving personal hearing to them, and thereafter, necessary orders on merits shall be passed.
22. Rule is made absolute in above terms.