Wanchoo, C. J. - (1.) THIS is a writ application under Art. 226 of the Constitution by Municipal Board of Rajagarh against the State of Rajasthan, and arises in the following circumstances.
(2.) IT appears that in Chopar Bazar Rajgarh there is a vacant piece of land belonging to the Municipality. Vegetable sellers have been staying for a long time on this piece of land and paying Teh-Bazari, ground-rent, to the Municipality. This piece of land is low lying, and water collects in the rainy season. IT was, therefore, thought by the Municipality to construct a Pucca platform to avoid the nuisance resulting from the collection of water, and the nature of business carried on at that place. Consequently, a unanimous resolution was passed by the Municipality for making the construction of a Pucca platform. The construction started about the beginning of September, 1954. Thereupon, the Municipality received an order from the Collector on the 6th of September, 1954, directing it not to proceed with the said construction as some complaint had been received by the Collector on which he had called a report from the Sub Divisional Officer. The Municipal Board was directed to wait till this report was submitted as the complaint was that there was some apprehension of the breach of peace. The Sub-Divisional Officer submitted a report in which he said that there was no danger of the breach of peace, and the matter came up for consideration before the Collector on the 10th of September, 1954. when the Collector suggested a compromise formula to the Board. The Board accepted the compromise formula, and passed a resolution in accordance therewith on the 11th of September, 1954. Thereupon, the Board was to carry on the construction. The Board, therefore, started construction again after passing the resolution of the 11th of September, 1954. It is said that when construction began, again there was some apprehension of the breach of peace, and the Sub-Divisional Officer had to pass an order under sec. 144 Cr. P. C. which was to be enforced for one month. This fact was not mentioned by the Board in its application, though we are of opinion that the Board should not have avoided mentioning of it. It has come out in the reply of the Government. In the meantime, an application was made to the Government on the 14th of September, 1954, complaining against the Municipal Board in this connection. On this application, the Government sent a telegram to the Municipal Board on the 15th of September ordering stay of construction of the platform pending inspection of the site by the Minister for Local-self-Govern-ment, and the reason given was that in the application to the Government breach of peace had been alleged. This telegram was confirmed in a letter a few days later. The Municipal Board then made representations to the Government, and this order was cancelled on the 30th of December. 1954, and the Board again started making construction on it. But a few days later, the Government cancelled the order the 30th December by a telegram of the 5th of January, 1955, and this revived the original order of the 14th of September, 1954. At the same time, the Government asked for a report on the complaint received on the 14th of September, 1954, from the Collector. That report was received in February, 1955, and thereafter no order has been passed with the result that the order of the 14th of September, 1954, by which the Municipality was asked to desist from constructing the platform, still stands. The main contention of the applicant before us is that the interference by the Government in this matter is entirely unjustified, and that the order passed by it on the 14th/15th of September, 1954, which is really the main order in dispute, was passed without any authority of law. The applicant consequently prays that we should set aside that order by which the Board has been asked to stay the construction of the platform or chabutra. The application has been opposed on behalf of the State though the facts, which we have set out above, are not in dispute. In its reply the Government have not set out the specific provisions of the Rajasthan Town Municipalities Act (No. XXIII) of 1951 (herein-after called the Act) or another law which justifies the action taken on the 14th of October, 1954. Reliance is placed on paras 11 and 12 of the State's reply on certain supervisory powers of the Government over the work of the Municipal Beards without indicating from where the Government derives this supervisory authority. We have heard learned counsel for the parties, and it is admitted by both sides that the supervisory powers, on which reliance is placed, are to be found in chapter XII of the Act from secs. 193 to 219, and nowhere else. This particular case is covered specifically by sec. 195 which gives power to the Collector or any other officer appointed or authorised by the Government in this behalf to pass an order in writing under his signature suspending the execution of any order or resolution of the Municipality, or prohibiting the doing of anything which is about to be done, or is being done by or on behalf of the Municipal Board, provided the Collector is of opinion that it is causing, or is likely to cause injury or annoyance to the public, or to lead to a breach of peace, or is unlawful. Thus it is clear that the power of suspension of a resolution of the Board, and of prohibiting it from carrying it out in effect lies in the Collector and not in Government. The Government only comes into the picture after the Collector has acted under sec. 195 (1), and the provision with respect to this is in sec. 195 (2 ). That sub-section lays down that when a Collector or any other officer, appointed or authorised by the Government in this behalf, makes any order under sub-section (1), he has forthwith to send a copy of the order along with the statement of the reasons for making it to the Government as well as to the Municipal Board. After the Government receives the copy of the order, it is open to the Government either to rescind the order or to direct that it shall continue in force with or without modification permanently or for such period as it deems fit. Thus the power of the Government to act in a case of this kind arises on the receipt of the Collector's order, and the Government has to give notice under the proviso to the Municipal Board if it desires to confirm, revise or modify the order. Of course, if the order is to rescind, no notice is necessary to the Board because the revision is naturally is favour of the Board. Now, have was a resolution of the Board for the construction of a chabutra. It is no one's case that the Board had not the power to pass the resolution and construct the chabutra. If for any reason it was necessary to suspend the resolution and to stop the construction of the chabutra, the Collector could only act under sec. 195 (1) for reasons given in that section, and had to pass an order in writing. We must say that the first order of the Collector, dated the 6th of September, 1954, is not in accordance with sec. 195 (1), for he nowhere records in the order that he was of opinion that there was likelihood of a breach of peace in carrying out the resolution of the Board with respect to the chabutra. All that he says in that is that he was sending for a report from the S. D. O. Alwar on an application received by him in which there was an allegation of a breach of peace. He then says that till he got a report from the S. D. O. no construction should be started. It may be mentioned that the Collector could have got a report from the Board itself under sec. 193 (1) (b), if he so desired; but in that case he could not pass an order stopping the construction. Now we need of not pursue this matter further, because there seems to have been a compromise between the Collector and the Board, and the Board acted in accordance with the compromise formula suggested by the Collector and he thereupon with drew the order stopping the construction. It is also clear that the Collector never took the step under sec. 195 (2 ). namely making a report to the Government, presumably because he came to a sort of settlement with the Board, and withdrew the order suspending the execution of the Board's resolution with respect to this chabutra. In these circumstances, there never arose an opportunity for Government to intervene under sec. 195, sub sec. (2) for no matter was reported to it by the Collector with a copy of his order as required by that section It is also clear that the Government had not been given power under this Act to intervene directly in a matter of this kind, and, therefore, though the Government could, when they received the complaint on the 14th of September, send for any report from subordinate officers, it could not interfere with the order of the Board, and tell the Board not to carry out the resolution which had been properly passed. That power, as we have already said, specifically is in the Collector, or any other officer appointed or authorised by the Government. There seems to be some misapprehension in the mind of the Government as to the meaning of sec. 195, and it is being interpreted as if it confers a power on the Government as such. This confusion has arisen from the fact that the Government has been given the power to appoint or authorises any officer other than the Collector to exercise the powers of the Collector, It is clear, however, that the powers are of the Collector, and not of the Government, though the Government may nominate any officer to exercise these powers in place of the Collector. Therefore, the Government cannot rely on sec. 207 of the Act which refers to delegation of powers by the Government because the power was never conferred on it by sec. 195 (1) to act on a complaint being received by it directly. The Government could only act when it received the report of the Collector under sec. 195 (2 ). Another section, on which reliance is placed, is section 210 which is the residuary provision giving power to Government to call for records to satisfy itself as to the correctness, legality or propriety of any order passed by the Commissioner, Collector, etc. Under this section, the power is also given to Government to direct that pending the examination of the record, such order be held in abeyance. The learned Deputy Government Advocate seeks to justify the order of the 14th of September under this provision, and submits that the order of suspension was passed pending the examination of the record. It is enough to say that there is no force in this contention. In the first place, there is a specific provision in sec. 195 as to the manner in which the operation of the resolutions of the Municipal Board can be stayed, and in the presence of that specific provision, it is not possible to apply sec. 210 which is a sort of residuary provision with respect to orders of officers subordinate to Government. In the second place, the facts show that the Government never acted under the provisions of sec. 210. If the Government was acting under the provisions of sec. 210, it would have asked the Collector to submit the record of the case in which the particular order impugned by the complainants was contained. In the first place, the complaint does not specifically mention what particular order of the Collector and of which date is being impugned in it. In the second place, the letter of the Government, which was written on the 19th September, 1954, has not a word to say about the sending for of any record. All that it says is that the Collectors comments might be sent on the complaint copy of which was being enclosed. Then there is an endorsement by which the Board who asked to stop the construction of the chabutra. till the site was inspected by the Minister. It is obvious that whoever wrote this letter of the 19th of September 1951, had no idea of sec. 210 at all, and it is now being pressed only to justify an indefensible action.
(3.) WE are, therefore, of opinion that the application must be allowed, and the order of the Government dated 14th/15th September, 1954, and all subsequent orders in connection including the one dated 5th of January, 1955, are set aside. The applicant will get its costs from the Government. .;