# Zila Panchayat Balrampur v. Commissioner Devi Patan Division & Anr

- **Citation:** (2015) 3 ILRA 1221
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2015-10-26
- **Case number:** Misc. Bench No. 7716 of 2015
- **Bench:** Amreshwar Pratap Sahi, Attau Rahman Masoodi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/zila-panchayat-balrampur-v-commissioner-devi-patan-division-anr-43377
- **Pages:** 8

## Headnote

Adhiniyam, 1961-Section 225 and 228Power
of
District
Magistrate-except
supervision
upon
Zila
Parishad-if
any
irregularity found-can send recommendation
to State Government-but can not pass any
restrain order-upon the decision of Parishad.
Held: Para-28 & 32

## Text

3 All] Zila Panchayat Balrampur Vs. Commissioner Devi Patan Division & Anr.
1221
not be in a position to get
another
employment. However, where the total
length of service rendered by a workman is
very small, the award of back wages for the
complete period i.e. from the date of
termination till the date of the award, which
our experience shows is often quite large,
would be wholly inappropriate. Another
important factor, which requires to be taken
into
consideration
is
the
nature
of
employment. A regular service of permanent
character cannot be compared to short or
intermittent daily- wage employment though
it may be for 240 days in a calendar year."
16.
The Supreme Court in Bhuvnesh
Kumar Dwivedi Versus Hindalco Industries
Ltd.12, on the facts of that case, the Court
held that the workman was subjected to
victimization, therefore, the award passed by
the Labour Court reinstating with backwages
was justified. The judgment and order of the
High Court granting compensation was
reversed.
17. Applying the law on the facts of
the present case, the workman in the
written statement had clearly stated that he
was engaged in 1980 as Beldar against
permanent vacancy, had continuously
worked till 1 December 1991. Thereupon,
service was terminated by the employer
without complying the terms contemplated
under Section 6-N of the Act. It was
further pleaded that the juniors to the
respondent-workman
are
continuing,
despite there being work, respondent was
removed on the directions of the higher
officials, the workman was not gainfully
employed after removal, is prepared to
render any service under the petitioner
department.
18. In support, petitioner filed the
seniority
list,
document
dated
15
September 1990 regarding payment of
bonus for 1987-88. Seniority list would
show that the daily wagers employed until
1989 have continued in service. Therefore,
the undisputed facts that emerges is that the
respondent was appointed in 1980, the
employer was taking regular work from the
respondent, it is not the case of the
petitioner that they did not require the
service of dailywage employees on regular
basis, persons junior to the respondent were
continued in service. The respondent was
removed from service unceremoniously by
the employer without any valid or cogent
reason despite the workman having put in
eleven years of service. The conduct of the
petitioner-employer tantamounts to unfair
labour practice as provided under the VIth
schedule to the Industrial Disputes Act, by
employing the workmen as temporaries and
to continue them for such years with the
object of depriving them of the status and
privileges of permanent workmen.
19. In the result, the writ petition
fails and is accordingly dismissed.
20. No order as to costs.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 26.10.2015
BEFORE
THE HON'BLE AMRESHWAR PRATAP SAHI, J.
THE HON'BLE ATTAU RAHMAN MASOODI, J.
Misc. Bench No. 7716 of 2015
Zila Panchayat Balrampur
 ...Petitioner
Versus
Commissioner Devi Patan Division & Anr.
...Respondents
Counsel for the Petitioner:
Mohd. Aslam Khan, Atul Kumar Singh,
Ripu Daman Shahi
1222
 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Respondents:
C.S.C., Prashant Kumar
U.P. Kshetra Panchayat and Zila Panchayat
Adhiniyam, 1961-Section 225 and 228Power
of
District
Magistrate-except
supervision
upon
Zila
Parishad-if
any
irregularity found-can send recommendation
to State Government-but can not pass any
restrain order-upon the decision of Parishad.
Held: Para-28 & 32
28. We are, therefore, of the opinion for
the aforesaid reasons that the District
Magistrate / Collector could not have
exercised powers for restraining the Zila
Panchayat from opening of the tenders
pursuant
to
the
resolution
dated
27.12.2014 nor could the said resolution
have been declared to be illegal. Thus
the same also suffers from malice in law.
32.
 The District Magistrate also has
emergency powers for urgent work as per
Section 229 but such powers nowhere
clothe him / her with powers of Section
228
which
are
exclusively
with
the
Prescribed
Authority
who
under
the
notification is the Commissioner.
Case Law discussed:
W.P. No. 9505 (M/B) 2014; JT 1991 (3) 268;
(1991) 4 SCC 139; 2008 (26) LCD 987; 2013
(96) ALR 872
(Delivered by Hon'ble Amreshwar Pratap
Sahi, J.)
1. Heard Sri Mohd. Arif Khan, learned
Senior Counsel for the petitioner and Smt.
Sangeeta Chandra, learned Additional Chief
Standing Counsel III for the State.
2. Supplementary counter affidavit
filed on behalf of respondent no. 2, is
taken on record.
3. This petition has been filed by a
democratically elected local body Zila
Panchayat,
Balrampur
through
its
Chairperson, Smt. Huma Rizwan assailing the
order dated 23.09.2015 as well as the orders
dated 08.08.2015 and 10.08.2015 whereby the
tender proceedings for the purpose of
execution of certain work pursuant to a
resolution passed by the Zila Panchayat have
been
annulled
by
the
District
Magistrate/Collector,
Balrampur
on
the
ground of irregularities with a further direction
to re-invite tenders as stipulated therein.
4. The matter had been heard earlier
by us and the learned Counsel for the
State had been called upon to file an
appropriate affidavit relating to any
further developments in the matter.
5. Today an affidavit has been filed in
compliance of our earlier order dated
27.10.2015 bringing on record the order
dated 26.10.2015 whereby the impugned
order dated 23.09.2015 has been annulled
and withdrawan. The affidavit has been
taken on record. Thus one of the main reliefs
claimed by the petitioner stands exhausted
with the withdrawal of the said order.
6. Sri Mohd. Arif Khan, learned
Senior
Counsel
for
the
petitioner,
however
vehemently
urges
that
withdrawal of the said order does not
suffice
inasmuch
as
the
second
respondent namely Collector / District
Magistrate, Balrampur has malafidely
exercised powers by restraining the
opening of tenders and as such the orders
date 08.08.2015 and 10.08.2015 staying
the tender process also deserves to be
quashed, keeping in view the nature of the
withdrawal order dated 26.10.2015 that in
a guarded way proposes an action to be
taken by the learned Commissioner.
7. While proceeding with the matter,
we called upon the learned Counsel to
3 All] Zila Panchayat Balrampur Vs. Commissioner Devi Patan Division & Anr.
1223
address the Court on the availability of
the powers with the District Magistrate
and
the
Prescribed
Authority
as
contemplated under Sections 225 and 228
of the U.P. Kshettra Panchayats and Zila
Panchayats Adhiniyam, 1961 to resolve
the
jurisdictional
issue.
It
appears
realising the impact of the same, the
second respondent passed the withdrawal
order dated 26.10.2015.
8.

Learned
Additional
Chief
Standing Counsel for the respondent-State
relied upon a Division Bench judgment in
the case of Smt. Gajala Chaudhary vs.
State of U.P. and others rendered in Writ
Petition No. 9505 (M/B) of 2014, on
23.09.2014 to contend that the said
Division
Bench
judgment
clearly
indicates the powers being available to the
District Magistrate and as such the
contention raised on behalf of the
petitioner does not conform to the
aforesaid legal proposition as laid down in
the said judgment.
9. She also submits that even
otherwise the present writ petition has
become academic and as a matter of fact
has
become
infructuous
with
the
withdrawal of the impugned order dated
23.09.2015.
10. It is on this issue that we have to
consider the rival submissions as to
whether the District Magistrate possessed
any such power for restraining the
opening of tenders as has been attempted
through the impugned communications
dated 08.08.2015 and 10.08.2015 that
have not been withdrawn by her.
11. The background in which the
dispute arose appears to be the availability
of a huge amount of funds for the Zila
Panchayat
from
the
State
Finance
Commission through the communication
dated 27.02.2015. The Zila Panchayat had
already passed resolution nos. 4 and 5 on
27.12.2014 for utilization of the grants
that were proposed to be made available
to the Zila Panchayat for seventy eight
projects. Part of the grant was utilized on
being approved after following the due
process of tender and award of contracts.
For the other projects, the tenders and
contracts are stated to have been approved
by
the
Chairman
where
after
an
advertisement was published in two local
newspapers as well as other newspapers
of
repute
inviting
tenders
/
bids.
Permission
was
sought
from
the
competent
authority
through
proper
channel namely the Chief Development
Officer and during this period a query was
made by the respondent no. 2 i.e. the
Collector in relation to publishing of such
tenders and award of contracts.
12. The petitioner urges that even
before any reply could be submitted to the
query, the District Magistrate passed an
order sitting in office on a second
Saturday i.e. 08.08.2015, that is officially
not a working day, alleging that she had
received some complaints that the funds
are to be misutilized for award of such
contracts which have already being
executed by adopting dubious methods of
splitting the amount of such contracts.
She therefore imposed a restraint on the
opening of the tenders through the order
dated
08.08.2015
and
10.08.2015,
appointing a three member committee to
enquire into the said allegations.
13. A three member committee was
accordingly appointed to make a fact
finding inquiry with regard to the said
process having been adopted upon which
1224
 INDIAN LAW REPORTS ALLAHABAD SERIES
the matter was inquired into and a report
is said to have been submitted. It is in this
background that the Upper Mukhya
Adhikari sent a letter dated 10.08.2015
stopping
the
entire
tender
process
pursuant to the impugned orders of the
District Magistrate.
14. A representation was filed by the
Chairperson alleging that this was being
done on account of an alleged political
rivalry and personal malice, as the
Chairperson had contested the election
against Sri Rakesh Yadav, son of a
minister in the State Government Sri S.P.
Yadav and, therefore, in order to impede
the functioning and carrying out of the
execution work of the Zila Panchayat, this
method was adopted and the District
Magistrate / Collector surrendered her
jurisdiction in favour of such persons so
as to annul the aforesaid tender process.
15. This writ petition was filed and
an interim order for holding the tenders in
custody was passed by the Division
Bench that had entertained the writ
petition on 01.09.2015. The petition
proceeded on the aforesaid allegations
and affidavits were exchanged. When the
matter appeared before us, upon hearing,
learned Counsel and the Court were faced
with the question with regard to the
availability of the power with the District
Magistrate to proceed in the matter as
indicated in our order dated 15.10.2015. It
is in the said light that the matter was
heard by us and the questions so arising
were framed to be answered vide our
order dated 27.10.2015.
16. It is in the aforesaid context that
the matter now remains alive for
consideration, as the powers of the
District Magistrate to intervene and stay
the tender process that was an outcome of
the resolution dated 27.12.2014 is still
surviving for challenge. The reason is that
while
withdrawing
the
order
dated
23.09.2015 on 26.10.2015, the District
Magistrate / Collector has proceeded to
make further recommendations to the
Commissioner of the division who is the
Prescribed Authority to take appropriate
action in the matter and has left the orders
dated 08.08.2015 and 10.08.2015 intact.
17. Sri Mohd. Arif Khan, learned
Senior Counsel submits, in our opinion
rightly so, that in the said background the
matter does not remain merely academic
on the issue involved as to whether the
District Magistrate continues to have the
power to either restrain the tender process
or even make a recommendation to the
Commissioner for taking any appropriate
action in exercise of powers under Section
225 or Section 228 of the Act.
18. Before we deal with this matter
it would be appropriate to first consider
the impact of the Division Bench
judgment in the case of Smt. Gajala
Chaudhary (supra), where the Court has
proceeded to presume that the power
under Section 228 of the Act can be
exercised by the District Magistrate /
Collector as well. With all due respect to
the ratio of the Division Bench judgment
the same is not an authority for the
proposition involved herein as what we
find is that neither the comparative
assessment of Section 225 and Section
228 of the Act relating to the specific
scope and powers of the Collector /
District Magistrate and that of the
Prescribed Authority have been taken into
consideration, nor the distinction of the
status of the two authorities have been
noticed or discussed as they appear to
3 All] Zila Panchayat Balrampur Vs. Commissioner Devi Patan Division & Anr.
1225
have neither been pointed out nor does it
appear to have been a matter of debate or
consideration.
19. The Prescribed Authority as
under Section 225 and 228 of the Act is
an authority as defined under Section 2
(20) of the 1961 Act, the same is
reproduced below:-
(20) "Prescribed Authority" means
any person or authority notified by the
State Government in the Gazettee as
prescribed authority for any purpose
under this Act;
20. Thus the District Magistrate and
the
Prescribed
Authority
are
not
interchangeable synonymous terms or a
substitute for each other. They enjoy
concurrent powers under Section 225 but
under Section 228 the powers to be
exercised are exclusively vested in the
Prescribed Authority only and not in the
District Magistrate. This distinction is
clearly evident from the notification dated
13.02.1963 that has been placed on record
which
categorically
notifies
the
Prescribed
Authority
to
be
a
Commissioner who is a higher authority
than the District Magistrate / Collector.
This statutory notification has completely
gone unnoticed in the Division Bench
judgment of Smt. Gajala Chaudhary
(supra). The question before us is as to
whether the judgment at all applies in this
case on account of such an omission in
the judgment viz-a-viz the aforesaid
provisions.
21. Sri Khan, learned Senior
Counsel for the petitioner, submits that it
would not be necessary to refer the
matter, as, the per incuriam rule is clearly
attracted and the said Division Bench
decision, therefore, cannot be treated to be
a binding precedent. Sri Khan relied upon
on
three
judgments
for
the
said
proposition. The first is in the case of
State of U.P. & another vs. M/s Synthetics
and Chemical Ltd. & another reported in
JT 1991 (3) 268 and also reported in
(1991) 4 SCC 139 and the other judgment
is by the full Bench of this Court reported
in 2008 (26) LCD 987 in the case of
Tuples Educational Society and another
versus State of U.P. and another. Another
decision of a full Bench of this Court
reported in 2013 (96) ALR 872 in the case
of Arun Kumar Singh and others vs. State
of U.P. and others has also been placed
before us.
22. Learned Counsel has invited the
attention of the Court to paragraphs 19 to
27 of the case reported in Arun Kumar
Singh (supra) and urged that applying the
principles that have been consistently
followed in the aforesaid decisions, the
Division Bench judgment in the case of
Smt. Gajala Chaudhary (supra) is per
incuriam.
With
due
and
respectful
deference to the judgment in Smt. Gajala's
case, we are inclined to accept the said
arguments of Sri Khan having noticed the
provisions discussed herein above. The
Division Bench judgment in the case of
Smt. Gajala Chaudhary (supra) does not
apply on the facts of this case as also
because it completely omits to notice the
distinction between the powers of the
Prescribed Authority and the District
Magistrate as well as the notification
dated 13.02.1963.
23. The question as to whether the
District Magistrate / Collector enjoys the
power to restrain the opening of the
tenders is still a hurdle. Section 225 of the
1961 Act is extracted here under:-
1226
 INDIAN LAW REPORTS ALLAHABAD SERIES
225. Powers of inspections, etc. of
prescribed authority or District Magistrate
over Parishad.
(1) The prescribed authority or the
District Magistrate may, with the limits of
its or his jurisdiction or district, as the
case may be -
(a) inspect, or cause to be inspected,
any movable property used or occupied
by a Zila Panchayat or any Committee or
joint Committee thereof, or any work in
progress under the direction of any of
them;
(b) by order in writing call for and
inspection a book or documents in the
possession or under the control of a Zila
Panchayat or any Committee or joint
Committee thereof;
(c) by order in writing require a Zila
Panchayat, or any Committee or joint
Committee
thereof
to
furnish
such
statements, accounts, reports (including
monthly reports of progress) or copies of
documents, relating to its proceedings or
duties as he thinks fit to call for; and
(d) record in writing, for the
consideration of Zila Panchayat, or any
Committee or joint Committee thereof
any observations he thinks proper in
regard to its proceedings or duties.
(2) Every officer appointed by the
State Government in this behalf may,
within the limits of this jurisdiction,
exercise, the powers conferred upon the
prescribed authority or District Magistrate
by sub-section (1) in respect of any matter
affecting his department and may inspect
or
cause
to
be
inspected,
the
administration of a Zila Panchayat in
respect of such matter."
24. A perusal of the said provisions
clearly indicates the scope and extent of
the powers of the District Magistrate who
can upon assessment after inspection of
such matters as are mentioned therein,
record his opinion in writing and call
upon the Zila Panchayat to consider the
same for rectification of any such act
which may require to be done in
accordance with law.
25. The said powers of the District
Magistrate are supervisory in nature but at
the same time when it comes to
interfering with any incorrect exercise of
power by the Zila Panchayat then the
controlling authority is the Prescribed
Authority under Section 228, which is
extracted hereunder:-
"228 Powers of Prescribed authority
to suspended action under the Act-
(1)
The prescribed authority may,
within the limits of its jurisdiction by order in
writing, prohibits the execution or further
execution of a resolution or order passed or
made under this or any other enactment by a
Zila Panchayat, or Committee of a Zila
Panchayat, or a joint committee, or servant of
a Zila Panchayat or a Committee, if in its
opinion such resolution or order is patently
illegal or ultra vires or inconsistent with any
order or direction given by the State
Government under this Act or is of a nature
to cause or tend to cause obstruction,
annoyance or injury to the public or to any
class or body or person lawfully employed,
or danger to human life, health or safety, or a
riot or affray and may prohibit the doing or
continuance by any person of any act in
pursuance of or under cover of such
resolution or order.
(2) Where an order is made under
sub-section (1) a copy thereof, with a
statement of the reasons for making it,
shall forthwith be forwarded by the
prescribed
authority
to
the
State
3 All] Zila Panchayat Balrampur Vs. Commissioner Devi Patan Division & Anr.
1227
Government which may, after calling for
an explanation from the Zila Panchayat
and considering the explanation, if any,
made by it, rescind, modify or confirm the
order.
(3) Where the execution or further
execution of a resolution or order is
prohibited by an order made under subsection (1) and continuing in force, it shall be
the duty of the Zila Panchayat or the
Committee of the Zila Panchayat or the joint
committee or any officer or Servant of the
Zila Panchayat or of the Committee of the
Zila Panchayat or of the joint committee, if
so required by the authority making the order
under the said sub-section, to take any action
which it would have been entitled to take, if
the resolution or order had never been made
or passed, and which is necessary for
preventing any person from doing or
continuing to do anything under cover of the
resolution or order of which the further
execution is prohibited."
26.
Thus there is a clear distinction
between the scope and powers of the
Prescribed Authority and the District
Magistrate viz aforesaid two sections. The
aforesaid issue also does not appear to have
been either argued or dealt with in the
Division Bench judgment in the case of Smt.
Gajala
Chaudhary
(supra).
The
Commissioner only has the power to annul
the action taken by the Zila Panchayat in his
capacity as the Prescribed Auhoritiy. There is
yet another reason for the same, namely, the
Zila Panchayat is a democratically elected
local body constituted under the statute and
the resolution passed by the Zila Panchayat is
an expression of the will of the elected
representatives of the public large at the
district level. In such a situation the control
over Zila Panchayat obviously was intended
to be by an authority higher than the District
Magistrate / Collector and it is for this reason
that the Commissioner was notified as the
Prescribed Authority by virtue of a
notification.
27.
The said control for annulling a
resolution passed by the Zila Panchayat is
thus in terms of the aforesaid statutory
provisions where the Collector does not
appear to have any role to play. If that is the
position, then in that event, if the Collector /
District Magistrate does not have the power
to exercise any such authority as envisaged
under Section 228, then the authority to pass
an interim order is also out of question
inasmuch as what cannot be permitted to be
done directly, cannot also be permitted to be
done indirectly. The Collector neither has the
power to pass final orders nor can the same
be done by virtue of an interim direction.
28. We are, therefore, of the opinion
for the aforesaid reasons that the District
Magistrate / Collector could not have
exercised powers for restraining the Zila
Panchayat from opening of the tenders
pursuant
to
the
resolution
dated
27.12.2014 nor could the said resolution
have been declared to be illegal. Thus the
same also suffers from malice in law.
29. The third question is that can the
Collector/District Magistrate be said to be
a toothless tiger even if the Zila
Panchayat transgresses the norms within
which it is entitled to function.
30. It is here that we may observe
that the power to inspect and to indicate in
writing for the consideration of Zila
Panchayat under Section 225 comes into
play. The District Magistrate / Collector,
therefore, in our opinion if arrives at the
conclusion that the Zila Panchayat has
acted deviantly he / she can always make
its recommendations to the Commissioner
1228
 INDIAN LAW REPORTS ALLAHABAD SERIES
for taking an appropriate action if the Zila
Panchayat does not respond to the
recommendations made by the District
Magistrate as per the provisions of
Section 225 of the 1961 Act.
31. This in our opinion, would be a
purposive interpretation of the powers
available in the hands of the Collector /
District Magistrate in order to supervise
the functioning of the Zila Panchayat and
make such recommendations to the Zila
Panchayat that may be necessary for
discharge of its obligations under the
1961 Act.
32. The District Magistrate also has
emergency powers for urgent work as per
Section 229 but such powers nowhere
clothe him / her with powers of Section
228 which are exclusively with the
Prescribed Authority
who under the
notification is the Commissioner.
33. Consequently for all the aforesaid
reasons, the District Magistrate / Collector on
the basis of any material that may be relevant
for consideration of Commissioner for
exercise powers under Section 228 can make
such recommendations for an independent
assessment . This can also be preceded by a
preliminary fact finding enquiry.
34. Sri Khan, learned counsel
contends that in the instant case, this is
the second round of harassing the
petitioner as in the previous year the Zila
Panchayat had been harassed in a same
fashion and the repeated action is
malafide. He further submits that so far as
setting up of a three member committee is
concerned by the Collector even that
committee has not adversely reported
against the petitioner. Thus there was no
material for the Collector to make any
recommendations to the Commissioner as
has
now
been
done
under
the
communication dated 26.10.2015. In our
opinion it is upon the Commissioner to
take an independent decision if there is no
adverse material against the petitioner.
35. We, therefore, allow this petition
and we also strike down the orders dated
08.08.2015 and 10.08.2015 passed by the
Collector restraining the Zila Panchayat
from opening of the tenders. This should
not be construed as the tenders being
approved by us and shall however be
subject to any action which may be taken
by the Commissioner in exercise of the
powers under Section 228 of the 1961 Act
or any other provisions under the Act if
permissible without prejudice to the rights
of the Zila Panchayat and its authorities to
take appropriate lawful steps in respect of
the tenders. The tenders shall be forthwith
handed over to the Executive Officer of
the Zila Panchayat that is in the custody
of a Magistrate as per the orders of this
Court.
36. The writ petition is allowed.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 01.09.2015
BEFORE
THE HON'BLE SUNEET KUMAR, J.
Writ-A No. 8068 of 2011
Sunil Kumar Gupta
 ...Petitioner
Versus
State of U.P. & Ors.
...Respondents
Counsel for the Petitioner:
Vatsal
Srivastava,
Ashok
Khare,
V.
Srivastava
Counsel
for
the
Respondents: