R.S. Narula, C.J. - (1.) THE question referred to this Full Bench is: Whether the State Government in exercise of the powers conferred by Sub -section (1) of Section 95 of the Punjab Gram Panchayat Act, 1952, can delegate its powers exercisable under Sub -section (2) of Section 102 of the said Act, to the Deputy Commissioners in respect of Gram Panchayats within their jurisdiction. It appears to be unnecessary to go into the facts and circumstances giving rise to the above -quoted question as the pure legal question referred to us arises in a large number of writ petitions and our answer is expected to govern all those cases.
(2.) SECTION 102 of the Punjab Gram Panchayat Act, 1952, as applicable to the State of Haryana and as amended up to date (hereinafter called the Act) reads as follows: (1) The Deputy Commissioner may during the course of an enquiry, suspend a Panch for any of the reasons for which he can be removed, and debar him from taking part in any act or proceedings of the said body during that period and order him to hand over the records, money or any property of the said body to the person authorised in this behalf. (2) Government may, after such enquiry as it may deem fit, remove any Panch: (a) on any of the grounds mentioned in Sub -section (5) of Section 5; (b) who refuses to act, or becomes incapable of acting, or is adjudged an insolvent; (c) who, without reasonable cause, absents himself for more than two consecutive months from the meetings of the Gram Panchayat or the Adalti Panchayat as the case may be; (d) who in the opinion of Government or of the officer to whom Government has delegated its power of removal, has been guilty of misconduct in the discharge of his duties during his past or present tenure; (e) whose continuance in office is, in the opinion of Government or of the officer to whom (Government has delegated its powers of removal, undesirable in the interests of the public. Explanation. - -The expression 'misconduct' in Clause (d) includes the failure of the Sarpanch without sufficient cause: (i) to submit the judicial file of a case within two weeks of the receipt of the Order of any Court to do so; (ii) to supply a copy of the order of the Gram Panchayat in an administrative or judicial case decided by it, within two weeks from the receipt of a valid application there for. (3) A person, who has been removed under Clause (a) or (c) of Sub -section (2) may be disqualified for re -election for such period not exceeding five years as Government may fix. (4) A person, who has been removed under Clause (b), (d) or (e) of Sub -section (2) shall stand disqualified for re -election for a period of five years from the date of his removal; and a person, who was removed under any of the said clauses on or after the 1st day of September, 1965, shall stand disqualified for re -election during such period after the commencement of the Punjab Gram Panchayat (Haryana Amendment) Act, 1971, which falls within a period of five years from the date of his removal. Section 95 of the Act, which contains the authority for delegation of powers conferred by the Act is in the following terms: (1) Government may, by notification delegate all or any of its powers under this Act other than the power to make rules, to a Deputy Commissioner for or the Sub -Divisional Officer as the case may be or the Director. (2) The Director may with the previous permission of Government delegate any of his powers other than those delegated to him to any officer not below the rank of District Panchayat Officer. (3) The Chief Judicial Magistrate may delegate any of his powers to a Judicial Magistrate of the first class. (4) The District Judge may delegate any of his powers to a Subordinate Judge of the first class. (5) The Collector may delegate any of his powers to an Assistant Collector of the first grade. (6) The Deputy Commissioner or the Sub -Divisional Officer, as the case may be, may delegate any of his powers of control to any officer not below the rank of an Extra Assistant Commissioner or to a District Panchayat Officer: Provided that the power specified in Section 102 shall not be delegated by the Deputy Commissioner. In exercise of the powers conferred on the Government by Sub -section (1) of Section 95 of the Act, the powers of the Government to remove any Panch under Sub -section (2) of Section 102 and to disqualify such person under Sub -section (3) of that section have been delegated to the Deputy Commissioners in respect of the Gram Panchayats within their jurisdiction by the Haryana Government notification No. HP -14 -69/4464, dated March 19, 1969 (Annexure P. 6 to the writ petition). The argument of the learned Counsel for the Petitioner is that Section 95(1) is liable to be struck down as being invalid and inoperative because: (i) its provisions go against the policy of the Act; and (ii) the power of removal of a Panch being quasi -judicial in nature is a personal power conferred by the Legislature on the Government and such power cannot be lawfully delegated, and the provision authorising such delegation should itself be declared to be bad.
(3.) THE language of Section 95 is plain and does not in our opinion admit of any exception to the power of delegation thereby conferred on the appropriate authorities. It is significant that wherever the Legislature desired the power of delegation to be circumscribed within certain limits or the power to delegate any particular function by any particular authority named in the Act being excluded from the operation of Section 95, it has been specifically so provided. For example, Sub -section (6) of Section 95 authorises the Deputy Commissioner to delegate any of his powers of control to an officer not, below the rank of an Extra Assistant Commissioner or to a District Panchayat Officer. Sub -section (1) of Section 102 authorises the Deputy Commissioner to suspend a Panch during the course of an inquiry. The proviso to Sub -section (8) restricts the Deputy Commissioner's power of delegation so as to exclude from its scope the authority to delegate his powers under Section 102 of the Act, i.e., to suspend a Panch or to remove one in exercise of his delegated authority. The authority conferred on the Government under Sub -section (1) of Section 95 to delegate any of its powers under the Act has been conferred by the Legislature subject to only one exception, namely, the power to make rules, and to no other exception. The other provisions in the Act conferring any powers, on the Government are contained in Sections 95 -A, 99(2), 99 -A, 100, 108 and 105 of the Act. Section 95 -A refers to the power of the Government to hold general election, etc. of Panches of Gram Panchayats according to the procedure contained in that section. Section 99 provides that if a Gram Panchayat makes default in the performance of any duty other than a judicial function imposed upon it by or under the Act, or under any other law, the Deputy Commissioner may fix a period for the performance thereof, and in case of default may appoint any person to perform it. Sub -section (2) of that section states that if in the opinion of the Government a Gram Panchayat has failed or is otherwise incompetent to administer its property, the Government shall appoint a person to administer such property for and on behalf of the Gram Panchayat, and the Government may terminate such arrangement at any time. Section 99 -A authorises the Government to take over by notification the management of any land of the Gram Panchayats for a period not exceeding twenty years if in the opinion of the Government it is necessary to do so in public interest or to secure proper management of such land held or managed by the Panchayat. Section 100 authorises the Government to call for and examine the record of proceedings of any Gram Panchayat for the purposes of satisfying itself as to the legality or propriety of any executive order passed therein, and further empowers the Government, to confirm, modify or rescind any such order. Section 101 of the Act empowers the Government to make rules consistent with the Act. It is this power which has been specifically excluded from the operation of Sub -section (1) of Section 95. The provisions of Section 102 have already been referred to in the opening part of this judgment. Section 103 authorises the Government to suspend or supersede a Gram Panchayat if in the opinion of the Government a Panchayat is incompetent to perform or persistently makes default in the performance of the duties imposed on it by or under the Act or any other Act, or exceeds or abuses its powers or fails to maintain proper sanitation, etc. Section 105 relates to the liability of members for the loss, waste or misapplication of any money or property belonging to the Panchayat. Sub -section (AA) of that section provides that the Government may. either on its own motion at any time, or on an application received in that behalf within the prescribed period, call for the record of any proceedings in which the Deputy Director of Panchayats has passed an order under Sub -section (3) for the purpose of satisfying itself as to the legality or propriety of such order and to pass such order in relation thereto as the Government thinks fit. It is settled law that whenever a power vested in the Government by a statute is delegated by it in exercise of statutory authority to do so, the delegate functions as the Government and any action taken by him, or order passed by him in exercise of such delegated authority is deemed to be the order of the Government itself. The authoritative pronouncement of the Supreme Court on this point in Roop Chand v. State of Punjab and Anr., A.I.R. 1963 S.C. 1600, is conclusive on the subject. It is also well -settled that there is a presumption in favour of the legality and Validity of a statutory provision and burden to rebut that presumption lies on the person who challenges the provision as being invalid or bad or unconstitutional vide Barham Dutt and Ors. v. Peoples Co -operative Transport Society Ltd. New Delhi and Ors., AIR 1961 P&H . 24. The basis on which Mr. Gopi Chand has submitted that Section 95(1) of the Act is contrary to the policy of the Act and contrary to the legislative intent are certain observations in the judgment of a Division Bench of this Court (Mehar Singh C.J., as he then was, and myself) in Ram Ditta Singh v. The Deputy Commissioner Ferozepore and Ors., 1968 P.L.R. 341 and certain speeches made in the Punjab Legislature at the time of consideration of the clause in the Bill of the Principal Act at the time it was passed in 1952 by the then Legislature of the united Punjab. The question that arose before Mehar Singh, C.J., and myself in Ram Ditta Singh's case (supra) was whether a Panch could or could not be suspended by the Deputy Commissioner under Sub -section (1) of Section 102 without an inquiry having first been ordered by the Government under Sub -section (2) of that section. The inquiry in that case had been ordered by the Sub -Divisional Officer and was held by the Block Development and Panchayat Officer. It was on the report of that inquiry that an explanation of the Sarpanch was obtained and the same not having been found to be satisfactory the Sarpanch was suspended by the order of the Deputy Commissioner. The order of suspension was impugned in the writ petition which was dismissed by the learned Single Judge on the ground that the Sarpanch still had an opportunity to show cause against the allegation made against him, but was allowed in appeal on the short ground that the initial inquiry against the Sarpanch had not been started under the orders of the Government, and inasmuch as Sub -section (1) and (2) of Section 102 must be read together, it is only during the course of an inquiry ordered by the Government that the Deputy Commissioner has the power to suspend a Panch or a Sarpanch under Sub -section (1). It was held that if no inquiry is ordered by the Government under Sub -section (2) , the power of the Deputy Commissioner to suspend under Sub -section (1) does not become operative, as the provisions of that section do not envisage any inquiry against a Panch independent of that referred to in Sub -section (2) during the course of which a Deputy Commissioner can order suspension of a Panch. It was in that context that after laying down the law to the above affect in clear terms, Mehar Singh, C.J., proceeded to observe as below: The two sub -sections, as I have already said, have to be read together, and the obvious consequence is that it is only when the Government has ordered or started an enquiry, under Sub -section (2) against a Panch, that the Deputy Commissioner concerned has the power under Sub -section (1) to suspend that Panch. He cannot suspend him in consequence of an enquiry not ordered or started by the Government under Sub -section (2) . The Legislature has designedly framed the two sub -sections in the manner in which the same are leaving the power to order or start an enquiry against a Panch with the Government alone. The reason is obvious, for a Panch is member of an elected local body and a representative of his constituency so far as that elected body is concerned, and the Legislature did not intend to leave interference with such elected bodies in the hands of local officers by way of starting enquiries against the elected members of such local bodies. The power of suspension was previously with the Director of Panchayats and it is only the recent amendment that has given the same to a Deputy Commissioner, but that is only after the Government has taken the more serious decision of interfering with the tenure of an elected member of Panchayat for irregularities or breaches referred to in Sub -section (2) of Section 102. The initial step that has to be taken to order or to start an enquiry has been confined by the Legislature only to the Government at the highest level, and this has been done as a matter of sound policy so as to obviate interference with such elected institutions in the State at the lower levels. There may be some preliminary enquiry or looking into the affairs of a Panchayat by the Government for the purpose of making up its mind to order or start an enquiry under Sub -section (2) , and it is only when it thus makes up its mind to act under that sub -section that an order by the Deputy Commissioner under Sub -section (1) may follow, but such a preliminary enquiry does not give power to a Deputy Commissioner to act under Sub -section (1) without there being an order by the Government for an enquiry under Sub -section (2) .;