# GODDE VENKATESWARA RAO v. GOVERNMENT OF ANDHRA PRADESH AND OTHERS

- **Citation:** [1966] 2 S.C.R. 172
- **Court:** Supreme Court of India
- **Decided:** 1965-10-11
- **Case number:** Civil Appeal No. 755 of 1965
- **Bench:** K. SUBBA RAo, J. R. Mudholkar, R. S. Bachawat
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/godde-venkateswara-rao-v-government-of-andhra-pradesh-and-others-3692
- **Pages:** 18

## Headnote

B
Andhra Pradesh Panchayat Samithis and Zilla Parishads Act (35 o/
1959), ss. 62 and 72-Scope of-Rules under-Validity of.
Constitution of India, 1950, Art. 226---TV!to can file petition under.
In order to promote rural welfar·z, the respondent had given administrative directions for dividing districts into Blocks and for the appointment of Block Planning and Development Committees. In pursuance of
those directions, a primary health centre was inaugurated in a village in
NoYember 1958 in accordance with the resolution of the Block Planning
and Development Committee.
Ono of the conditions which the village
had to comply with was that it should give 2 acres of land free end a
cash contribution of at least Rs. 10,000.
Since the amount was not pyid
by the village, the Block Planning and Development Committee, resolved
to shift the primary health centre to 'mother village with the consent of
the representatives of the first village. The second village chosen, satisfied
the condition regarding land and cash contribution on 27th July 1959
am! thereafter, on 31st July 1959 the first ,-iUage also satisfied the condition.
In August 1959 the Commirtee by a resolution decided to locate
the centre at the second village, but the respondent directed that the
matter should be decided by tho Panchayat Samithi, as by the time, the
Andhra Pradesh Panchayat Samithis and Zilla Parishads Act, 1959 had
come into force and a Panchayat Samithi had been established for the
concerned Block.
Though in May 1960, the Panchayat Samithi at first
resolved to have the centre at the first village, and though the said resolution was approved by the respondent, the Panchayat Samithi finally, by its
resolution on 29th May 1961, cancelled its earlier resolution and resolved
to locate the centre at the second village. On 7th March 1962, the respondent set aside tho resolution of May 1961 of the Panchayat Samithi
on the ground that it did not get the requisite support of 2/3rd majority.
On 18th April, 1963, the respondent rcvi-2\ved its previous order on the
ground that the said orf:}er was made under a mi5taken impression that
the hcaHh centre ~'as pem1anently located at the first village) and directed
that the centre should be located in the second village.
The appellant, \Vho was the representative of the first viilage in all the
proceedings, filed an application heforq the High Court under Art. 226 of
the Constitution for quashing the Government order dated 18rh April
1963. The petition was dismissed by the High Court.
Jn appeal to this Court. the appellant cc>ntendcd that : (i) Assuming
the first Government order dated 7th March 1962 was made under s. 72( I),
the impugned order <lated 18th ApriI, 1963 r-=:vic\ving the first, was invalid,
ina.-;much as the prerequisite for the exercise .of the power of rcvie\\•,
namelv, the existence of a mistnkc of fact or law or the ignorance of
any niatcria1 fact.. v..·as not sati;;;.fied, (ii) the first Government order \Vas
m:.i.dc under s. 62 of the Act. and therefore could not be revie\vect by
the impugned order under s. 72 and (iii) the imnugned order was invalid.
because it was n1ado without giving an o~portunity to the partv prejudiced
thereby. The respondent raised a preliminary objection that the appellant
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had no personal right in the matter and therefore had no /oms s1andi to
file the application, nnd also urged, that the in1pugned ordt.':r \Va') neither
made under s. 62 nor under s. 72. of the Act, but that it was really passed
under the rules mllile by the respondent in exercise of the power conferred
on it under s. 69 of the Act read with s. 18(2) and that therclore, no
question of revie\V would arise at aH as the respondent passed the final
order in regard to the location of the health centre.
HEW : (i) The appellant had the right to maintain the application.
Ordinarily, the petitioner who seeks to file an application under Art.
226 should be o

## Text

_Characters 0–39,602 of 48,606. This is a partial read: ask again with offset=39602 for what follows._

GODDE VENKATESWARA RAO
V.
GOVERNMENT OF ANDHRA PRADESH AND OTHERS
October 11, 1965
A
(K. SUBBA RAo, J. R. MUDHOLKAR AND R. S. BACHAWAT, JJ.]
B
Andhra Pradesh Panchayat Samithis and Zilla Parishads Act (35 o/
1959), ss. 62 and 72-Scope of-Rules under-Validity of.
Constitution of India, 1950, Art. 226---TV!to can file petition under.
In order to promote rural welfar·z, the respondent had given administrative directions for dividing districts into Blocks and for the appointment of Block Planning and Development Committees. In pursuance of
those directions, a primary health centre was inaugurated in a village in
NoYember 1958 in accordance with the resolution of the Block Planning
and Development Committee.
Ono of the conditions which the village
had to comply with was that it should give 2 acres of land free end a
cash contribution of at least Rs. 10,000.
Since the amount was not pyid
by the village, the Block Planning and Development Committee, resolved
to shift the primary health centre to 'mother village with the consent of
the representatives of the first village. The second village chosen, satisfied
the condition regarding land and cash contribution on 27th July 1959
am! thereafter, on 31st July 1959 the first ,-iUage also satisfied the condition.
In August 1959 the Commirtee by a resolution decided to locate
the centre at the second village, but the respondent directed that the
matter should be decided by tho Panchayat Samithi, as by the time, the
Andhra Pradesh Panchayat Samithis and Zilla Parishads Act, 1959 had
come into force and a Panchayat Samithi had been established for the
concerned Block.
Though in May 1960, the Panchayat Samithi at first
resolved to have the centre at the first village, and though the said resolution was approved by the respondent, the Panchayat Samithi finally, by its
resolution on 29th May 1961, cancelled its earlier resolution and resolved
to locate the centre at the second village. On 7th March 1962, the respondent set aside tho resolution of May 1961 of the Panchayat Samithi
on the ground that it did not get the requisite support of 2/3rd majority.
On 18th April, 1963, the respondent rcvi-2\ved its previous order on the
ground that the said orf:}er was made under a mi5taken impression that
the hcaHh centre ~'as pem1anently located at the first village) and directed
that the centre should be located in the second village.
The appellant, \Vho was the representative of the first viilage in all the
proceedings, filed an application heforq the High Court under Art. 226 of
the Constitution for quashing the Government order dated 18rh April
1963. The petition was dismissed by the High Court.
Jn appeal to this Court. the appellant cc>ntendcd that : (i) Assuming
the first Government order dated 7th March 1962 was made under s. 72( I),
the impugned order <lated 18th ApriI, 1963 r-=:vic\ving the first, was invalid,
ina.-;much as the prerequisite for the exercise .of the power of rcvie\\•,
namelv, the existence of a mistnkc of fact or law or the ignorance of
any niatcria1 fact.. v..·as not sati;;;.fied, (ii) the first Government order \Vas
m:.i.dc under s. 62 of the Act. and therefore could not be revie\vect by
the impugned order under s. 72 and (iii) the imnugned order was invalid.
because it was n1ado without giving an o~portunity to the partv prejudiced
thereby. The respondent raised a preliminary objection that the appellant
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had no personal right in the matter and therefore had no /oms s1andi to
file the application, nnd also urged, that the in1pugned ordt.':r \Va') neither
made under s. 62 nor under s. 72. of the Act, but that it was really passed
under the rules mllile by the respondent in exercise of the power conferred
on it under s. 69 of the Act read with s. 18(2) and that therclore, no
question of revie\V would arise at aH as the respondent passed the final
order in regard to the location of the health centre.
HEW : (i) The appellant had the right to maintain the application.
Ordinarily, the petitioner who seeks to file an application under Art.
226 should be one who has a personal or individual right in the subject
matter of the petition.
The personal right need not be in respect of a
proprietary interest : it can also rela'.e to an interest of a
trustee.
In
exceptional cases, a person who has been prejudicially affected by an
act or omission of an authority can file a petition even though he has. no
proprietary or even fiduciary interest in the subject-matter.
The appellant
was the president of the Panchayat Samithi of the first village.
He wa•
also the president of a committee for collecting contributions from the
villagers for setting up the health centre.
!-Us conduct, the acquiescence
on the part of the members of the com1nittee, and the treatment 1netcd out
to him by the authorities, support the inference that he \1/as authorised
to act on behalf of the committee which was in law,
the trus.tce oJ
the amounts collected. The appellant, therefore, had been prejudiced b\
the impugned order and his petition under Art. 226 \Vas
maintainable.
1181 F]
(ii) A reading of •· 18 of the Act with the Schedule shows that
under the Act the statutory power to establish and maintain pri1n:11 y
health centres is vested in the Panchayat Samithi, and there is no provision
ve£ting the said power in the Government.
Under s. 69- of the Act, the
Government can only mato rules for carrying out the purposes o[ th~
Act;
it cannot under the gui50 of rules,
convert an authority \Vith
power to establish a primary health centre in:o only a recommendatory
body.
It cannot, by any rule, vest in itself a power which under the
Act vests in another body.
It is one thing to say that the exercise
of the power by the Samithi is regulated by the rules. but another thing
to deprive it of that power in the matter of location of the health centre
and confer that power on tho Government. Therefore, lhe Rules, in so
far ~ ihcy make the Panchayat Sa:mithi a mere recommendatory hodv.
are inconsistent with the Act. and so the impugned order could not be
OU£taine'1 under the authority of the Rules (183 Fl
(iii) A .. umi~g that th<? firot .order was m~e under s. 72( t) the
respondent was _nght when rt std m tha impugned order. that it maJe a
mistake of fact 1n pass11:1g its earher order on a misapprehension !hat 'there
was a permanent location of the. centre at the first village.
The centre
was neve~ permanen~y locat~ in th~ first village, it \Vas only located
there subiect to certam cond1t1ons which were not fulfilled [18~ Fl
(i.v) But, an. analysis of the first order of the respondent Uenion'.'.ltratcs.
that it "':as. nothing more than a cancellation of the resolution passed bv
the Samith1 on 29th May 1961.
The fact that the word "cancel"' ;;
not used and s. 62 was not mentioned in the order could not make it
anytheless an order cancelling the
resolution.
Thcr'2fore,
1hc
order
\Vas one made under s. 62 and could not be rcvie\ved by the impurrned
order under s. 72. [187 A-Bl
0
Section 62 confers a special po\vcr on the Government to cancel a
resolution passed by the Samithi, by an order in \Vriting, if in it:=; opinion
174
SUPREME COURT REPORTS
[1966] 2 S.C.ll.
such resolution is not legally passed or is in excess or abuse of the_ power
A
conferred by the Act, after giving to the Samithi an opportumtv for
explanation. Section 72(1) confers a wide power of revision
on
the
Government.
On the principle of generalia specialibus non deroga:u the·
case provided for under s. 62 must he excluded from the operation of
s. 72. It follows that the order reviewed fell under the scope of s. 62
and that i: could no: be reviewed under s. n, for s. 72(3) enables (he
Government only to review an order mad·o under s. 72(1 ).
Further,
the im-.ngned order could not be sustained as being j,tse1f an ord·~ under
B
s. 62 of ·the Act.
The respondent, in exercise of that power, cancel!cd
the resolu-:ion of the Samithi by its earlier order, and herefore qua that
order had become funcllls officio. It could not be reviewed, nor could s. 13
-0f the Madras General Clauses Act, 1891 be invoked. because, that section,
which enables the Government to exercise its power from time to time as
-occasion requires,
cannot
app~y to an order made in exercise of a
quasi-judicial power under s. 62. [184 H-158 B; 187 D-E]
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(v) Since the impugned order was made without giving an opportunity
as required by s. 72 to the appellant or to· the committee, who were the
representatives of the first village, and who were prejudicially affected bv
it, the order was bad. [189 A-BJ
The High Court, however, rightly refused to exercise its extraordinary discretionary power hecause. if it had quashed the impugned order.
it would have restored the illegal order of 7th March 1962. That order
was also ille-gal
because it was
made without
giving notice to
the
Panchayat Sami'hi as required by s. 62. [189 E]
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 755 of
1965.
Appeal by special leave from the judgment and order dated
September 7. 1964 of the Andhra Pradesh High Court in Writ
Appeal No. 8 of 1964.
S. T. Desai', N. V. Suryanarayana Murth,v, R. ThiagarajRll and
K. Jayaram. for the appellant.
P. Ram Reddy and A. V. Rallgam, for respondent No. 1.
S. V. Guptc, Solicitor-General and A. V. V. Nair, for respondent No. 4.
The Judgment of the Court was delivered by
Subba Rao, J.
This is an appeal by special leave agait16t the
judgment of a Division Bench of the Andhra Pradesh High Court
in a Letters Patent appeal confinning that of a single Judge of
that Court dismissing a petition filed by the appellant under Art.
226 of the Constitution for issuing a writ of certiorari quashing
the order of the Government of Andhra Pradesh dated April 1 8.
1963, under s. 72 of the Andhra Pradesh Panchayat Samithis and
Zilla Parishads Act, 1959, (Act No. XXXV of 1959), hereinafter
called the Act.
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A
At the outset it will be convenient to sti'rvey the facts leading
up to this appeal in their chronological order.
For the promotion
qf rural welfare, the Government of Andhra Pradesh
initiated
Community Development }'rogramme in the said State. Pursuant
to that Programme, each district in the State was divided into
Blocks, called Community Development Blocks.
Chintalapudi
B Taluk in the West Godavari District was one of such Blocks. A
Block Planning and Development Committee was appointed for
each Block and a District Planning and Development Committee
for each district.
All this was done by the Government by issuing
administrative directions; indeed, the said Committees were only
advisory bodies and the ultimate power vested in the GovernC ment.
One of the activities of the said Committees was to constitute Primary Health Centres in each district.
On March 22,
1957, the Government of Andhra Pradesh issued a notification
laying down broad principles for guidance in the selection of
places for the location of Primary Health Centres.
One of the
said principles relevant to the present enquiry may be noticed at
D this stage and that is, the village selected for locating such Centre
was expected to give 2 acres of site free and 50% cash contribution which would not be less than Rs. 10,000/-.
On April 8,
1958, the Block Planning and Development Committee, Chintalapudi, resolved unanimously, modifying its earlier resolution, to
E have the Primary Health Centre at Dharmajigudem village,
as
there were High Schools and education facilities there. On November 7, 1958, the Collector of the District formally inaugurated
the Primary Health Centre at Dharmajigudem. On July 11, 1959,
the said Committee passed two resolutions, among others.
Under
resolution 3 it recorded with appreciation the donation
of 50
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cents of land by Achyutharamaiah, the Block Committee Member,
towards site for the Primary Health Centre to be located at Dharmajigudem and appealed to the members of the Block Committee
to see to the remittance of the cash contribution of Rs. 10,000/-
immediately. Presumably because that something happened at the
meeting immediately after the said resolution was passed indicating
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that there would be no response in that direction, another resolution was passed by the said Committee recording that, as the
villagers of Dharmajigudem had failed to pay the said contribution for the last 8 months, the Primary Health Centre located
in that place be shifted to and established permanently at any
other suitable village where land and cash
contributions were
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forthcoming.
On July 13, 1959, i.e., 2 days after the aforesaid
resolution, the Block Development Officer wrote a letter to the
appellant, who was the President of the village panchayat, inform-
176
SUPREME
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[1966] 2 S.C.R.
ing him that he had not taken any steps for the realization of the
contribution so far and that if the required contribution was not
.realized before the end of the month steps would be taken to
shift the Primary Health Centre to some other place. It may be
noticed at this stage that the Block Development Officer, who
had to implement the resolution of the Committee, had outstepped
his powers in writing a letter in derogation of the terms of the
resolution of the Committee dated July 11, 1959. On July 16.
1959, the appellant and others of Dharmajigudem informed the
Block Development Officer that it was not possible for them to
collect the amount and that there was no objection to the shifting
of the Centre from their village to any other place. On July 17.
1959, the Block Development Officer wrote to the people of Dharmajigudem that as they were unable to pay the said amount, the
said Centre would be shifted to Lingapalem.
On July 27, 1959,
the 4th respondent, Rangarao, representing Lingapalem village,
deposited Rs. 10,000/- with the Block Development Committee
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and also donated 2 acres of land for the purpose of locating the
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said Centre in the said village.
On July 31, 1959, on behalf of
Dharmajigudem, Venkateswara Rao, the appellant, deposited the
sum of Rs. 10,000/- in the Sub-Treasury and K. V. Krishna Rao
donated 2 acres of land and delivered possession of the same to
the Block Development Officer.
On August 14, 1959, the said
Committee, after reviewing the previous history of the location of
the Primary Health Centre and after noticing that both the villages
deposited the amount-one on July 27, 1959 and the other on
July 31, 1959-and after considering the competing claims,
resolved unanimously to have the Primary Health Centre located
permanently at Lingapalem and to request the authorities concernE
ed to shift it from Dharmajigudem to Lingapalem at an early
F
date. One important fact to be noticed in this resolution is that
it was recorded therein that the representatives .of Dharmajigudem
assured the representatives of Lingapalem that they not only gave
up their efforts to have the Primary Health Centre at Dharmajigudem but also unanimously agreed to have it located at Lingapalem.
It was further recorded therein that the
villagers
of
Lingapalcm paid up the entire contribution enthusiastically and
that too after obtaining the concurrence of the villagers of Dharmaji~udem and also on an assurance that the latter gave up the
idea of having the Primary Health Centre at Dharmajigudem. It
would, therefore, be noticed that this resolution for locating the
Primary Health Centre at Lingapalem was passed after the representatives of the two villages settled their disputes. On September 18, 1959, the Act came into force and under s. 3 thereof a
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177
A Panchayat Samithi was constituted for Chintapudi. On January
7, 1960, the Government informed the Collector of West Godavari District that the question of shifting the Primary Health
Centre from Dharmajigudem to Lingapalem should be left to the
decision of the Panchayat Samithi constituted under the Act. The
President of the Panchayat Samithi, Chintalapudi Block,
was
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requested to place the resolution dated August 14, 1959, of the
Block Planning and Development Committee before the Panchayat Samithi for reconsideration and submit a report to the Government through the Chairman, Zilla Parishad, West Godavari.
It may be noticed that after the passing of the Act, what was
being done administratively was sought to be placed on a statutory
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basis.
On May 28, 1960, the Chintalapudi Panchayat Samithi
held its meeting and resolved that the Primary Health Centre
should be permanently located at Dharmajigudem; and the said
resolution was communicated to the Government.
On July 6,
1960, the Government approved the proposal of the Chintalapudi
Panchayat Samithi to locate the Primary Health Centre permaD
ncntly at Dharmajigudem.
On January 23, 1961,
the Rules
framed by the Government in exercise of the powers conferred
on it under s. 69 of the Act came into force. On February 22,
1961, on a representation made to the Government that the meeting of the Panchayat Samithi held on May 28, 1960, was irregular
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o:i the ground of inadequate notice, the Govermnent decided not
to interfere with those proceeding under s. 72 of the Act.
On
May 12. 1961. the Panchayat Samithi at a special meeting, on
the ground that the meeting h.eld on May 28, 1960, was not
held in accordance with r. 4(1) of the Rules for the conduct of
business, in exercise of the power given to it under r. 15 thereof.
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cancelled all the resolutions passed by the meeting of the Samithi
on May 28, 1960.
On May 29, 1961, the Samithi passed another resolution adopting all the resolutions which it cancelled on
May 12, 1961, except the resolution to locate the Primary Health
Centre at Dhannajigudem.
In regard to the location of the said
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Centre it resolved to locate it at Lingapalem.
On March 7, 1962.
the Government made an order holding that there was no valid
reason for shifting the Primary Health Centre from Dharmajigudem to Lingapalem and directing the Block Development
Officer to take action accordingly.
The main reason given for
that order was that the Primary Health Centre was already functioning at Dharmajigudem and a Health Centre once established
should not be shifted to another place within the Block unless the
Panchayat Samithi resolved by two-thirds majority of the members present at the meeting as required under r. 7 of the Rules
178
SUPREME COURT
REPORTS
[1966) 2 S.C.R.
and that the resolution dated May 29, 1961, was not supported
A
by the requisite majority.
On April 18, 1963, i.e., about a year
after the earlier order, the Government passed
another order
wherein it held that it passed the previous order dated March 7,
1962, on a mistaken impression that it was a case of shifting the
Primary Health Centre from one place where it was permanently
located to another, while the correct position was that in the instant case the Primary Health Centre was not permanently located
B
by the Government and, therefore, the resolution passed by the
Panchayat Samithi on May 29, 1961, fell within r. 2 of the Rules
and not under r. 7 thereof.
In that view, it directed that the
said Centre should be located permanently in Lingapalem village
in accordance with the resolution of the Panchayat Samithi dated
May 29, 1961.
A resume of the said facts leads to the following
factual
position.
Before the Act came into force,
the Primary Health
Centre was inaugurated at Dhannajigudem presumably subject to
the condition that the said village would comply with the conditions laid down by the administrative directions governing the
location of a Centre. One of the important conditions was that
the village seeking to have the Centre should give 2 acres o[ land
free and 50% cash contribution which would not be less than
Rs. 10,000/-. The said amount was not paid by Dharmajigudem
village with the result the condition was not complied with. With
the consent of the representatives of the village of Dharmajigudem. the Block Planning and Development Committee resolved
to shift the Primary Health Centre from Dharmajigudem to Lingapalem. The Lingapalem village satisfied the condi,tions on July
27, 1959.
Thereafter, Dharmajigudem village also satisfied the
said conditions on July 31, 1959. On August 14, 1959. the said
Committee by a resolution decided to locate the Centre at Lingapalem, but the Government directed the matter to be decided by
the Panchayat Samithi, as by that time the Act had come into
force and the Panchayat Samithi for the Block had been established.
Though on May 28, 1960, the Panchayat Samithi at first
resolved to have the Centre at Dharmajigudem and though the
said resolution was approved by the Government, the said Panchayat Samithi finally by its resolution dated May 29, 1961, cancelled its earlier resolution and resolved to locate the Centre at
Lingapa!em.
On March 7, 1962, under s. 62 of the Act the said
resolution of the Panchayat Samithi was set aside by the Government on the ground that it did not get the requisite support of
two-thirds majority.
But on April 18, 1963, the Government
reviewed its previous order, under s. 72 of the Act, on the ground
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that the said order was made under a mistaken impression that
the Primary Health Centre was permanently located at Dharmajigudem and directed the Centre to be located at Lingapalem. It
will, therefore, be seen that though the Health Centre was formally
inaugurated at Dharmajigudem before the Act came into force,
there was not and could not have been a permanent location of
the Centre at that place, as the condition precedent was not compiled with.
After the Act came into force, though the Panchayat
Samithi at first approved of the location of the Centre at Dharmajigudem, it cance'led the resolution and decided to locate it at
Lingapalem.
The Government, on a misapprehension
of fact,
set aside that order, but when it came to know of the mistake it
reviewed its earlier order and directed the location of the Centre
at Lingapalem. The question is whether on these facts the Government had jurisdiction to make the order which it did in exercise
of its powers under s. 72 of the Act.
The appellant, who was the representative of the village of
Dharmajigudem in all the said proceedings, filed an application
befo:e the High Court under Art. 226 of the Constitution for
quashing the said order of the Government. The said application
was, in the first instance, heard by a single Judge of the High
Court and he dismissed it.
On appeal, a Division Bench of the
High Court confirmed it.
Hence the appeal.
Mr. Desai, learned counsel for the appellant, raised before
us the following points : (1) The order of the Government cancelling the resolution dated May 29, 1961, was made under s. 62
of the Act and, therefore, the said order could not be reviewed
under s. 72 the~eof.
(2) Assuming that the said order dated
March 7, 1962. was made under s. 72(1) of the Act. the order
dated April 18, 1963, reviewing the said order was invalid inasmuch as the prerequisite for the exercise of the power of review
thereunder. namely, the existence of a mistake of fact or law or the
ignorance of any material fact, was not satisfied.
(3) The order
dated April 18, 1963, was also invalid, because it was
made
without giving an opportunity to the party prejudiced thereby of
· making a representation against the making of the said order .
Mr. Ram Reddi, learned counsel for the State of Andhra Pradesh, raised a preliminary objection that the appellant had no
personal right in the matter of the location of the Primary Health
Centre and, therefore, he had no locus standi to file an application
under Art. 226 of the Constitution.
He argued that the order of
the Government dated March 7, 1962, was not simply a cancella-
180
SUPREME
COURT REPORTS
[1966] 2 S.C R.
tion of a resolution made by the Panchayat Samithi, but a com·
posite order giving directions to the Block Development Officer
and, therefore, it fell directly wi.tllin tile scope of s. 72 of the
Act; and, as the said order was made under a misapprehension
tllat there was a permanent location of the
Health Centre at
Dharmajigudem, the Government had jurisdiction to review the
same under s. 72 (3) of tile Act. He would further contend that
even if the order dated March 7, 1962, was passed under s. 62
of tile Act, the said order being an administrative one, the Government had jurisdiction to review the same under s. 62 itself
when the mistake was discovered or brought to its notice.
Jn
addition he raised before us a new point which was not argued
eitller before the single Judge or, on appeal, before the Division
Bench of the High Court. He would say that the impugned order
was neither made under s. 62 or under s. 72 of the Act, but
it was really passed under tlie relevant Rules made by the Government in exercise of the power conferred on it under s. 69 of
the Act, read with sub-s. (2) of s. 18 thereof, whereunder the
ultimate authority under tlie Act to locate the Health Centre was
ths Government, though on the recommendation of tlie Panchayat Samithi.
In this view, the argument proceeded, no question
of review would arise at all, for the Government passed the final
order in regard to tile location of the Primary Health Centre at
Lingapalem.
The learned Solicitor General, ,appearing for the 4th respondent, supported Mr. Ram Reddi on all the points and furtlier
elaborated that aspect of the argument which related to the construction of the order made by the Government on
March 7,
1962.
The first question is whether the appeilant had locus standi
to file a petition in the High Court under Art. 226 of the Constitution.
This Court in The Calcutta Gas Companv
( Proprietary) Ltd. v. The Stare of West Bengal('), dealing with the question of locus standi of tile appellant in that case to file a petition
under Art. 226 of the Constitution in the High Court, observed :
"Article 226 confers a very wide power on tlie High
Court to issue directions and writs of the nature mentioned therein for the enforcement of any of the rights
conferred by Part III or for any other purpose. It is,
therefore, clear that persons oilier than those claiming
fundamental right can also approach the court seeking
(1) [t962] Supp. 3 S.C.R. l, 6.
"
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a relief thereunder.
The Article in terms does not describe the classes of persons entitled to apply thereunder;
but it is implicit in the exercise of the extraordinary
jurisdiction that the relief asked for must be one to
enforce a legal right. . . . . . . . . . . . . . . . . . . . . . . The
right that can be enforced under Art. 226 also shall
ordinarily be the personal or individual right of the
petitioner himself, though in the case of some of the
writs like habeas corpus. or quo warranto this rule may
have to be relaxed or modified."
181
Has the appellant a right to file thci petition out of which the
c present appeal has arisen ? The appellant is the President of
the Panchayat Samithi of Dharmajigudem.
The villagers of
Dharmajigudem formed a committee with the appellant as President for thr. purpose of colJecting contributions from the villagers
for setting up the Primary Health Centre. The said committee collected Rs. 10, 000 / • 'lnd deposited :he same with the Block DeveD lopment Officer.
The appellant represented the village in al! its
dealings with the Block Development Committee and the Panchayat Samithi in the inatter of the location of the Primary Health
Centre at Dhannajigudem.
His conduct, the acquiescence on the
part of the other members of the committee, and the treatment
meted out to him by t.lie authorities concerned support the inferE
ence that he was authorized to act on behalf of the committee. The
appellant was, therefore, a representative of the committee which
was in law the trustees of the amounts collected by it from the
villagers for a public purpose. We have, therefore, no hesitation
to hold that the appellant had the right to maintain the application
under Art. 226 of the Constituiton.
This Court held in the
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decision cited supra that "ordinarily" the petitioner who seeks to
file an application under Art. 226 of the Constitution should be
one who has a personal or individual right in the subject-matter
of the
1petition. •A personal right need not be in respect of a proprietary interest : it can also relate to an interest of a trustee.
G
That apart, in exceptional cases, as the exnression "ordinarily''
indicates, a person who has been prejudicially affected by an act
or omission of an authority can file a writ even though he has
no proprietary or even fiduciary interest in the subject-matter
thereof. The appellant has certainly been prejudiced by the said
order. The petition under Art. 226 of the Constitution at his
H
instance is, therefore, maintainable.
-
Now, we shall first take the new argument advanced by Mr.
Ram Reddy for the first time before us, for, if that was accepted.
182
SUPREME
COURT REPORTS
( 1966] 2 S.C.R.
the appeal would fail. Briefly stated, his contention was that the A
order of the Government dated April 18, J 963, was not made
either under s. 62 or under s. 72 of the Act, but was made only
under the Rules made bv the Government in exercise of its power
under s. 69 of the Act.· To appreciate this contention it will be
useful to notice the relevant rules.
Under r. 2, the Panchayat Samithi only recommends to the
Government the place for
locating the said Centre. Under
r. 3 (11), in the case of conflict between the relevant authorities in
regard to the location of a Health Centre, the Government's order
shall be final.
Under s. 6, a Primary Health Centre once estab·
lished shall not ordinarily be shifted to another place except by
the Government on the recommendation of the Panchayat Samithi
on the basis of a resolution passed by it by two-thirds of the mem·
hers of the Panchayat Sumithi present at the meeting.
Even in
such a case the Government has no power to direct the shifting of
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a Pri1,iary Health Centre established in one place to another, if the D
contribution from the people had been accepted and is in deposit.
It is clear from the said rules that the ultimate authority to locate
the Primary Health Centre or to direct its shifting from one place
lo another is the Government.
On the basis of the said rules,
learned counsel contended that the High Court missed the real
point, presumably on the arguments advanced before it, and proE
ceeded to consider the validity of the impugned order in terms of
s. 72 of the Act. The circumstance, the argument proceeded, that
the Government in its orders referred neither to s. 62 nor to s. 72
of the Act or did not give any notice to parties as prescribed thereunder clearly indicates that the Government acted only under the
said relevant rules.
This argument so stated appears at the first
F
blush to be unanswerable. But a scrutiny of the relevant provisions of the Act shows that the s3id rules are inconsistent with the
provisions of the Act and they cannot possibly override the statutory power conferred on the Panchayat Samithi. "Under s. 18 (I )
of the Act, subject to the provisions of · 'ie Act, the administration
of the Block shall vest in the Panchayat Samithi; and under sub-s.
(2) thereof the Panchayat Samithi shall exercise the powers and
perform the functions specified in the Schedule.
When we refer
to the Schedule it will be seen that the following entry is found
under the heading "Health and Rural Sanitation", "Establishing
and maintaining Primary Health Centre and Maternity Centres".
It is manifest that under the Act the statutory power to establish
and maintain Primary Health Centres is vested in the Panchayat
Samithi.
There is no provision vesting the said power in the GovG
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183
ernment.
Under s. 69 of the Act. the Government can only make
rules for carrying out the purposes of the Act; it cannot, under
the guise of the said rules, convert an authority with power to
establish a Primary Health Centre into only
a recommendatory
body. It cannot, by any rule, vest in itself a power which under
the Act vests in another body. The rules, therefore, in so far as
they transfer the power of the Panchayat Samithi to the Government, being inconsistent with the provisions of the Act, must yield
to s. 18 of the Act.
Realizing this difficulty, the learned Solicitor General, who
appeared for the 4th respondent, made an attempt to reconcile the
relevant rules with the provisions of s. 18 of the Act. He argued
that s. 18 of the Act conferred a power on the Panchayat Samithi
to establish and maintain Primary Health Centres, whereas the
Rules provided for the location or shifting of the Centres. This
argument does not appeal to us. A Primary Health Centre cannot
be established in vacuum; it must he established in some place.
The Rules deprive the Panchayat Samithi of the power to select a
place for establishing a Primary Health Centre and make it a recommendatory body with final powers in the Government.
The
Rules also confer a power on the District Medical Officer and the
District Health Officer in the matter of location of the Centre and
give the Government the final voice. if there is any conflict between
those officers and the Panchayat Samithi.
Even
in
regard to
shifting of the Primary Health Centre, the Government's voice is
final under the Rules.
It is one thing to say that the exercise of
the power by the Panchayat Samithi is regulated by the Rules, but
another thing to deprive it of that power in the matter of location
of the Primary Health Centre and confer the said power on the
Government.
We, therefore, hold that the Rules, in so far as they
make the Panchayat Samithi a mere recommendatory body.
are
inconsistent with the Act. This may be the reason why in the High
Court the Government did not think fit to sustain the order under
the authority of the Rules .
The next question is whether the order dated April I 8, 1963,
can be sustained under s. 72 of the Act.
Section 72 of the Act
reads :
Power of revision and reviel1' by Government :
( 1) The Government may either suo motu or on an
application from any person interested, call
for
and
examine the record of a Panchayat Samithi or a Zilla
Parishad or of their Standing Committees in respect of ,
184
SUPREME COURT
REPORTS
[1966] 2 S.C.R.
any proceeding to satisfy themselves as to the regularity
of such proceeding or the correctness, legality or propriety of any decision or order passed therein; and, if, in
any case, it appears to the Government that any such
decision or order should be modified, annulled or reversed or remitted for reconsideration, they may pass orders
accordingly :
Provided that the Government shall not pass
any
order prejudicial to any party unless such party has had
an opportunity of making a representation.
(2)
( 3) The Government may suo motu at any time or
on an application received from any person interested
within ninety days of the passing of an order under subsection (1), review any such order if it was passed by
them under any mistake, whether of fact or of law, or
in ignorance of any material fact. The provisions contained in the proviso to sub-section ( l) and in sub-section
(2) shall apply in respect of any proceeding under this
sub-section as they apply to a proceeding under subsection (1)."
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Sub-section (1 ) of s. 72 of the Act confers a wide power on the E
Government to revise any decision or order passed in any proceeding under the Act. Sub-section ( 3) thereof confers a power on
the Government to review the order made under suJ>.s. ( 1) thereof
if it was passed by the Government under any mistake, whether
of fact or of law, or in ignorance of any material fact. To attract
sub-s. (3 ), the order sought to be reviewed should have been
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made under sub-s. (1). To appreciate the scope of s. 72(1) of
the Act, it is necessary to compare the said sub-section with s. 62
of the Act. Under s. 62(1), the Government may, by order in
writing, cancel any resolution passed by a Panchayat Samithi, If
in its opinion such resolution is not legally p3SSed or is in excess
or abuse of the powers conferred by or under the Act or for any G
other reasons mentioned therein.
Under sub-s. (2) of s, 62, the
Government shall, before taking action under sub-s. ( 1) thereof
shall give the Panchayat Samithi or the Zilla Parishad, as the case
€.·
may be, an opportunity for explanation.
Section 72 confers a
general power on the Government; and on its terms, if there was
,
no other section, it can cancel a resolution of a Panchayat Samithi.
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But, s. 62 of the Act confers a special power on the Government
to cancel a resolution passed by a Panchayat Samithi in the cir-
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185
cumstances mentioned therein.
The principle generalia specialibus non derogant compels us to exclude from the operation of
s. 72 the case provided for under s. 62.
If so construed, it follows
that if the order reviewed fell under the scope of s. 62, it could
not be reviewed under s. 72, for s. 72(3) enables the Government
only to review au order made under sub-s. ( 1) of s. 72. So, the
iearned counsel for the State as well as for the 4th respondent
made a serious effort to bring the order of the Government dated
March 7, 1962, within the terms of s. 72(1) of the Act. As the
argument turns upon the terms of the said order, it may wnvenientl y be read at this stage :
Government of Andhra Pradesh
Planning and Local Administration Department.
MEMORANDUM NO. 1354/Prog.II/61-2 dated 7-3-1962.
D
Sub : Community Development Programme--Chintalapudi Block
-Shifting of Primary Health Centre from Dham1ajigudem
to Lingapalem-orders issued.
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Ref. : 1. Representation of Sri G. Punneswararao
and others.
dated 31-6-1961.
2. Letter from Collector, West Godavari, No. 01.5642/61
dated 22-9-1961.
The Panchayat Samithi, Chintalapudi. at its meeting
held on 25-8-1960 unanimously resolved to locate the
Primary Health Centre at Dharmajigudem.
Later, the
Panchayat Samithi at its meeting held on 29-5-61 resolved to shift the Primary Health Centre permanently to
Lingapalem village. The President, Dharmajigudem
Panchayat, and others have represented to Government
against acceptance of the resolution passed by the Samithi
at its meeting held on 29-5-1961.
This representation
has been carefully examined by the Government in
consultation •.vith the Collector, West Godavari.
Under Rule 6 of the Rules for the establishment and
maintenance of Primary Health Centres by Panchayat
Samithis made under the provisions of the Panchayat
Samithis and Zilla Parishads Act, 1959,
the Primary
Health Centre once established shall not ordinarily be
186
SUPREME
COURT
REPORTS
[1966] 2 S.C.R.
shifted to another place within the Block unless the
Samithi resolves by 2/3rd majority of the members present at the meeting as required under rule 7 of the said
rules.
In the present case the Primary Health Centre
was already functioning at Dharmajigudem and the
resolution of the Panchayat Samithi dated
29-5-1961
did not get the requisite support of the Samithi Members as required under rule 7.
In the above circumstances, the Government consider that there are no valid
reasons for shifting the Primary Health Centre from
Dharmajigudem to Lingapalem.
The Block Development Officer, Chintalapudi, is directed to take action
accordingly.
Sd/- B.