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PETITIONER: KHARGRAM PANCHAYAT SAMITY & ANR.

       Vs.

RESPONDENT: STATE OF WEST BENGAL & ORS.

DATE OF JUDGMENT23/04/1987

BENCH: SEN, A.P. (J) BENCH: SEN, A.P. (J) ERADI, V. BALAKRISHNA (J)

CITATION:  1987 SCR  (2)1207        1987 SCC  (3)  82  JT 1987 (2)   266        1987 SCALE  (1)1142

ACT:     West  Bengal Panchayat Act, 1973/West  Bengal  Panchayat (Samiti  Administration) Rules, 1984--s. 117/Rules 7, 8  and 9--Power  to grant licence for holding a  hat/fair  includes power to specify a day on which such hat/fair shall be held. Administrative Law.     Local  authorities--Conferral  of  statutory  power--Im- pliedly authorises everything which could fairly and reason- ably  be  regarded as consequential and incidental  to  that power.

HEADNOTE:     Ever  since 1933, a cattle fair called Nagar Cattle  Hat is  being held on Saturday every week by the Nagar  Quorania Junior High Madrassah. Since 1974, respondent No. 6, a  club called  Prabartak Parishad set up a parallel cattle fair  at Sherpur,  about two kilometres away from the site  of  Nagar Cattle  Hat on every Saturday, known as Sherpur Cattle  Hat. The  holding of two rival cattle fairs on the same day  gave rise  to  feeling of rivalry couple with  tension  and  this frequently  led to violent conflicts and skirmishes  between the two rival groups.     Upon  a representation made to him, the District  Magis- trate,  Murshidabad caused an inquiry to be held,  and  held that holding of the two cattle fairs on the same day created serious  law  and  order problem  and  accordingly  directed holding  of the hats on two different days for  preservation of public peace and tranquility.     On.  a writ petition filed by the respondent No.  6  the High Court struck down the order of the District  Magistrate on the ground that no such direction could be issued by  him as the competent authority was the Khargrar Panchayat  Sami- ti.     In compliance with the directions made by the Court, the Panchayat  Samiti passed a resolution that the Nagar  Cattle Hat  run  by Nagar Quorania Junior High Madrassah  would  be held on Saturday and the Sherpur Cattle Hat run by Prabartak Parishad would be held on Friday. 1208     Respondent No. 6 filed another writ petition challenging the  said resolution. A Single Judge quashed the  resolution of  the  Panchayat  Samiti on the ground that  it  acted  in

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breach  of  the rules’ of natural  justice  while  reserving liberty to the Panchayat Samiti to come to a decision afresh after affording an opportunity to respondent No. 6.     The appeal preferred by the Panchayat Samiti was  admit- ted,  but  the  Division Bench declined to  grant  stay  and directed  that the Panchayat Samiti should. comply with  the order  of  the  Single Judge.  Consequently,  the  Panchayat Samiti  issued notices to the contending  parties  requiring them to submit their claims for consideration. The Panchayat Samiti after considering the claims of both parties and  the material  record, passed a resolution that the Nagar  Cattle Hat  would  be held on Saturday every week and  the  Sherpur Cattle Hat would be held on Friday, and directed the  Execu- tive Officer to incorporate such a condition in the  licence granted  to  the two organisations for  holding  the  cattle fairs on these days.     Again, respondent No. 6 filed a writ petition  challeng- ing  the  resolution dated April 12, 1985.  A  Single  Judge dismissed the writ petition. Respondent No. 6 then moved the Division  Bench  for restraining the Panchayat  Samiti  from giving  effect  to the said resolution. The  Division  Bench quashed  the  resolution dated April 12, 1985  holding  that although in terms of s. 117 of the Act, the Panchayat Samiti was  vested  with the power of granting a  licence  for  the holding  of a hat or fair, by the framing of rr. 7, 8 and  9 of the West Bengal Panchayat (Samiti Administration)  Rules, 1984 the power of the Panchayat Samiti is confined to making provision  for maintenance of sanitation, health and in  the market area which is the essence of the power under s.  117, and further that in the absence of a provision in the  rules in  that  behalf it had no power to specify a day  on  which such hat or fair should be held. Allowing the Appeal,     HELD: 1. The view taken by the High Court that  although the  Panchayat Samiti was vested with the power to  grant  a licence for the holding of a hat or fair under s. 117 of the West Bengal Panchayat Act, 1973, yet it had no consequential or incidental power to specify a day for holding of such hat or fair, is manifestly erroneous. [1213C-D]     2. The power to grant a licence for the holding of a hat or fair under s. 117 of the Act necessarily carries with  it the  power to specify a day on which such hat or fair  shall be  held. Such power to specify a day must be held to  be  a power  incidental or consequential upon the principal  power of issuing a licence under s. 117 of the Act for holding  of a hat or fair. [1214H; 1215A] 1209     3.  The rules or the absence of it do not  detract  from the substantive power conferred by a statute. [1215A-B]     4.  The essence and content of the power of a  Panchayat Samiti under s. 117 of the Act is issuance of a licence  for the  holding  of a hat or fair and not mere  maintenance  of sanitation,  health and hygiene as held by the  High  Court. [1215B]     5.  It is well-accepted that the conferral of  statutory powers  on local authorities must be construed as  impliedly authorising everything which could fairly and reasonably  be regarded as incidental or consequential to the power itself. [1213F-G] 6.  The doctrine of ultra. vires is not to be  applied  nar- rowly. [1214B-C]     De Smith’s Judicial Review of Administrative Action, 4th edn.,  p.  95; HWR Wade’s Administrative Law, 5th  edn.,  p. 217;  Craies  on  Statute Law, 6th edn.,  p.  276;  Attorney General v. Great Eastern Railway, LR (1880) 5 AC 473;  Baro-

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ness  Wenlock  v. River Dee Co., LR (1885) 10 AC  354;  V.T. Khanzode & Ors. v. Reserve Bank of India, [1982] 2 SCC 7 and State  of Uttar Pradesh v. Batuk Deo Pati Tripathi  &  Anr., [1976] 2 SCC 102, relied upon.

JUDGMENT:     CIVIL  APPELLATE JURISDICTION: Civil Appeal No. 5675  of 1985.     From  the Judgment and Order dated 2.8.1985 of the  Cal- cutta  High Court in Appeal from Original Order  Tender  No. 165 of 1985.     S.N. Kaicker. Girish Chandra and Mrs. Sarala Chandra for the Appellants.     Tapas  Roy, Parijat Sinha, D.N. Mukherjee,  Dalip  Sinha and J.K. Das for the Respondents. The Judgment of the Court was delivered by     SEN J. This appeal by special leave is directed  against the  judgment  and order of the Calcutta  High  Court  dated August 2, 1985 quashing a resolution passed by the  Khargram Panchayat  Samiti dated April 12, 1985 specifying  that  the cattle  fairs  run  by two rival  organisations  r.e.  Nagar Cattle Hat run by Nagar Quorania Junior High Madrassah would be held on Saturday every week and Sherpur Cattle Hat run by Prabartak Parishad on Friday. By the judgment under 1210 appeal,  a  Division Bench of the High Court has  held  that even  though the Panchayat Samiti was vested with the  power to  grant licence for holding of a hat or fair under s.  117 of the West Bengal Panchayat Act, 1973. still in the absence of a rule framed under the Act it had no power to specify  a day  on  which  such hat or fair shall be  held.  The  issue involved  is whether the Panchayat Samiti being vested  with the authority to grant a licence for the holding of a hat or fair under s. 117 of the Act within the limits of its terri- torial  jurisdiction, must necessarily be held to  have  the consequential  or incidental power to specify a day for  the holding of such hat or fair.     The facts of the case are as follows. Ever since 1933, a cattle fair called Nagar Cattle Hat is being held on  Satur- day every week by the Nagar Quorania Junior High  Madrassah, a charitable educational institution which runs a school and is also engaged in other social activities, which attracts a large  gathering  of buyers and sellers  of  cattle  dealers within  the  district  of Murshidabad and  even  beyond  the district. Since 1974, respondent no. 6 a club called Prabar- tak  Parishad,  set  up a parallel cattle fair  at  a  place called  Sherpur,  about  two kilometres away  (as  the  crow flies) from the site of Nagar Cattle Hat on every  Saturday, known as Sherpur Cattle Hat. The holding of two rival cattle fairs  on  the same day gave rise to a  feeling  of  rivalry couple with tension amongst the local population as also the large  number of cattle dealers and peasantry attending  the cattle  fairs and this frequently led to  violent  conflicts and  skirmishes between the two rival groups. Upon a  repre- sentation  made  to him in 1980,  the  District  Magistrate, Kurshidabad  caused an inquiry to be held and by  his  order dated  April  2, 1980 held that holding of  the  two  cattle fairs on the same day created serious law and order  problem and accordingly directed holding of the hats on two  differ- ent  days for preservation of public peace and  tranquility. On  a  writ  petition filed by respondent  no.  6  Prabartak Parishad,  a Division Bench of the High Court by  its  order dated  June  2, 1982 struck down the impugned order  of  the

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District  Magistrate  on the ground that no  such  direction could  be issued by him as the competent authority  was  the Khargram Panchayat Samiti. It was observed:               "The only authority which is competent to give               any direction in this regard is the  authority               under the West Bengal Panchayat Act, 1973.  No               such direction has been given by the authority               under  the said Act. In the circumstances,  we               set  aside the impugned order of the  District               Magistrate  and  the judgment of  the  learned               Judge. Appeal is allowed.               1211               There will be no order as to costs. It is made               clear that this order is without prejudice  to               any  steps  that may be taken  in  ,accordance               with law by the authority under the said Act."     In Compliance with the direction made by the High Court, the District Magistrate obviously actuated by  consideration of  maintenance of law and order requested the  Chairman  of the Khargram Panchayat Samiti to take necessary steps as the holding  of  rival  hats in contiguous areas  could  not  be allowed  to.  continue as it gave rise to  serious  law  and order problem. A meeting of the Panchayat Samiti was accord- ingly held on June 20, 1984 and a resolution was passed by a majority  of  the members that the Nagar Cattle Hat  run  by Nagar Quorania Junior High Madrassah would be held on Satur- day  as before and the Sherpur Cattle Hat run  by  Prabartak Parishad  being  of recent origin would be held  on  Friday. Thereupon,  respondent no. 6 filed another writ petition  in the  High  Court challenged the impugned resolution  of  the Panchayat Samiti. A learned Single Judge by his judgment and order dated January 14, 1985 quashed the impugned resolution of  the  Panchayat  Samiti on the ground that  it  acted  in breach  of  the  rules of natural  justice  while  reserving liberty to the Panchayat Samiti to come to a decision afresh after affording an .opportunity to respondent no. 6  Prabar- tak  Parishad  to  have its say before  it.  Aggrieved,  the appellant preferred an appeal and applied for stay. A  Divi- sion  Bench of the High Court by its order dated  March  19, 1985  admitted  the appeal but declined to grant  stay.  and directed  that the Panchayat Samiti should in the  meanwhile comply  with  the order of the learned Single  Judge.  As  a consequence,  Khargram Panchayat Samiti was  constrained  to give  effect  to the direction made by  the  learned  Single Judge.  It  accordingly  issued notices  to  the  contending parties  i.e. both Nagar Quorania Junior High Madrassah  and Prabartak Parishad requiring them to submit their claims for consideration.  and also fixed a date being April  12,  1985 for hearing. On that date. the Panchayat Samiti at its  open meeting heard the representatives of the parties and scruti- nised the documents placed before it. After considering  the claims  of  both  the parties and the  material  record,  it passed a resolution that the Nagar Cattle Hat would be  held as before on Saturday every week and the Sherpur Cattle  Hat would be held on Friday, and directed the Executive  Officer to  incorporate such a condition in the licence  granted  to the two organisations for holding the cattle fairs on  these days.  Again, respondent no. 6 filed a writ petition  before the  High Court challenging the aforesaid  resolution  dated April 12, 1985. A learned Single Judge by his judgment dated June  19,  1985 dismissed the writ petition in view  of  the pendency of the appeal before the 1212 Division  Bench, pursuant to whose direction  the  aforesaid resolution had been passed. Respondent no. 5 then moved  the

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Division  Bench  for restraining Khargram  Panchayat  Samiti from  giving  effect to the said  resolution.  The  Division Bench  by  its judgment under appeal  quashed  the  impugned resolution dated April 12, 1985 of Khargram Panchayat  Sami- ti. It held that although in terms of s. 117 of the Act  the Panchayat  Samiti  was vested with the power of  granting  a licence for the holding of a hat or fair, by the framing  of rr. 7, 8 and 9 of the West Bengal Panchayat (Samiti Adminis- tration)  Rules, 1984 the power of the Panchayat  Samiti  is confined to making provision for maintenance of  sanitation, health  and hygiene in the market area which is the  essence of  the power under s. 117, and further that in the  absence of  a provision in the rules in that behalf it had no  power to  specify a day on which such hat or fair should be  held. It  accepts  that when a power is conferred on  a  statutory authority. it necessarily carries with the other  incidental or  ancillary  powers and holds that  the  Panchayat  Samiti being vested with the power to grant a licence under s.  117 of the Act had been conferred the power under rr. 7, 8 and 9 to  making provision for sanitation, health and  hygiene  in the market area which is the essence of the power and there- fore the Panchayat Samiti had tile power to see that sanita- tion, health and hygiene are properly maintained and  looked after,  and nothing more. In repelling the  contention  that the specification of a day for the holding of a hat or  fair was  consequential to the power to grant a licence under  s. 117 of the Act, it observed:               "there  can be no doubt that when a  power  is               conferred on a statutory authority such  power               will  also include other incidental or  ancil-               lary powers without the exercise of which  the               main power cannot be exercised. In the instant               case  however. Panchayat Samiti has been  con-               ferred  with a power to see  that  sanitation,               health and hygiene are properly maintained and               looked after. The provisions of Rule 9 of  the               Rules,  as  stated  already,  imposed  certain               terms  and conditions on the grant of  license               for  holding  a market or hat, but  all  these               terms and conditions relate to maintenance  or               sanitation,  health and hygiene or  supply  of               water  or making proper lighting  arrangement.               The essence of power is, therefore, the  main-               tenance  of  sanitation, health  and  hygiene.               Many incidental powers may be exercised by the               Panchayat Samiti which are directly related to               the  exercise of the maintenance  of,  sanita-               tion, health and hygiene. Such powers are  not               provided  for under Rule 9, yet they could  be               exercised by the Panchayat Samiti in  exercise               of               1213               its  power under Rule 9 incidentally. But,  in               our  opinion.  the  Panchayat  Samiti   cannot               exercise  a  power  which  has  no  connection               whatsoever  with  sanitation, health  and  hy-               giene.  The reason for fixing different  days,               viz., Fridays and Saturdays for the holding of               the  two  hats, viz.,  apprehended  breach  of               peace,  has no connection whatsoever with  the               question  of sanitation, health  and  hygiene.               Exercise of such assumed power cannot be  said               to  be  incidental or ancillary  to  the  main               power  for the imposition of terms and  condi-               tions  of  a licence. In case, any  broach  of

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             peace takes place. it will be a concern of the               District  Magistrate  to take  steps  for  the               same."     In  our judgment, the view taken by the High Court  that although  the Panchayat Samiti was vested with the power  to grant a licence for the holding of a hat or fair under s.  i 17  of  the Act, yet it had no consequential  or  incidental power  to specify a day for holding of such hat or fair,  is manifestly  erroneous and cannot be supported. It failed  to appreciate that under the Act the power of general  adminis- tration of the local area vests in the Panchayat Samiti only to grant a licence to hold a hat or fair under s. 117 of the Act,  but such power of general  administration  necessarily carries  with it the power to supervise, control and  manage such  hat or fair within its territorial  jurisdiction.  The conferment  of the power to grant a licence for the  holding of a hat or fair under s. 117 of the Act includes the  power to make incidental or consequential orders for specification of a day on which such hat or fair shall be held. The  deci- sion  of  the High Court runs counter to  the  well-accepted principles. It overlooks that the statutory bodies like  the Panchayat  Samiti enjoy a wide ’incidental power’ i.e.  they may do every thing which is ’calculated to facilitate, or is conductive  or incidental to, the discharge of any of  their functions’  and  the doctrine of ultra vires is  not  to  be applied narrowly. It is well-accepted that the conferral  of statutory  powers  on these local authorities must  be  con- strued  as  impliedly  authorising  everything  which  could fairly  and reasonably be regarded as incidental  or  conse- quential  to  the  power itself. See:  de  Smith’s  Judicial Review of Administrative Action. 4th edn., p. 95. HWR Wade’s AdminiStrative Law, 5th edn., p. 217. Craies on Statute Law, 6th edn., p. 276. Attorney General v. Great Eastern Railway, LR  (1880) 5 AC 473; Baroness Wenlock v. River Dee  Co.,  LR (1885)  10 AC 354. De Smith in his celebrated work  Judicial Review of Administrative Action, 5th edn. at p. 95 puts  the law tersely in these words: 1214 The House of Lords has laid down the principle that "whatev- er  may fairly be regarded as incidental to.  or  consequent upon.  those  things which the Legislature  has  authorised. ought  not  (unless  expressly prohibited) to  be  held,  by judicial construction, to be ultra vires." This principle was. enunciated by Lord Selborne in  Attorney General  v.  Great Eastern Railway, supra, in  these  words: "The doctrine of ultra vires ought to be reasonably. and not unreasonably,  understood  and applied and whatever  may  be fairly  regarded  as incidental to. or  consequential  upon, those things which the legislature has authorised ought  not (unless  expressly prohibited) to be held, by judicial  con- struction. to be ultra vires." These words have been  quoted by Professor wade in his monumental work Administrative Law. 5th  edn. at p, 2 17 and also by Craies on Statute Law,  6th edn. p, 276. Craies also refers to the observations of  Lord Watson in Baroness Wenlock v. River Lee Co., supra, .to  the effect:               "Whenever  a corporation is created by Act  of               Parliament  with reference to the purposes  of               the  Act, and solely with a view  to  carrying               these purposes into execution, I am of opinion               not  only that the objects which the  corpora-               tion  may legitimately pursue must  be  ascer-               tained  from  the  Act itself,  but  that  the               powers which the corporation may lawfully  use               in furtherance of these objects must either be

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             expressly  conferred or derived by  reasonable               implication from its provisions,"     This  Court in V.T. Khanrode & Ors. v. Reserve  Bank  of India,  [1982] 2 SCC 7 has followed the dictum of Lord  Sel- borne  in  Great Eastern Railway’s case and  reaffirmed  the principle  that the doctrine of ultra vires in  relation  to the powers of a statutory corporation have to be  understood reasonable and so understood, whatever may fairly be regard- ed  as  incidental to, or consequential upon,  those  things which  the  legislature  has authorised  ought  not  (unless expressly  prohibited) to be held by judicial  construction, to  be ultra vires. It had earlier been laid down by a  Con- stitution  Bench  of the case of State of  Uttar  Pradesh-v. Batuk  Dee  Pati Tripathi & Anr., [ 1973] 2 SCC 102  that  a power to do a thing necessarily carries with it the power to regulate the manner in which the thing may be done. The High Court failed to apreciate that the power to grant a  licence for  the  holding of a hat or fair under s. 117 of  the  Act necessarily  carries with it the power to specify a  day  on which such hat or fair shall be held. Such power to 1215 specify  a day must be held to be a power incidental  to  or consequential upon the principal power of issuing a  licence under  s. 117 of the Act for holding of a hat or  fair.  The rules or the absence of it do not detract from the  substan- tive  power conferred by a statute. The essence and  content of  the power of a Panchayat Samiti under s. 117 of the  Act is  issuance of a licence for the holding of a hat  or  fair and  not mere maintenance of sanitation, health and  hygiene as held by the High Court.     For  these reasons, we have no hesitation  in  reversing the judgment of the High Court. The appeal must  accordingly succeed and is allowed. The judgment and order passed by the High Court are set aside and the writ petition is dismissed. No. costs. A.P.J.                                          Appeal   al- lowed. 1216