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PETITIONER: GODDE VENKATESWARA RAO

       Vs.

RESPONDENT: GOVERNMENT OF ANDHRA PRADESH AND OTHERS

DATE OF JUDGMENT: 11/10/1965

BENCH: SUBBARAO, K. BENCH: SUBBARAO, K. MUDHOLKAR, J.R. BACHAWAT, R.S.

CITATION:  1966 AIR  828            1966 SCR  (2) 172  CITATOR INFO :  RF         1973 SC2720  (9)  F          1976 SC 578  (33)  R          1982 SC 149  (962)  RF         1991 SC2160  (31)

ACT: Andhra  Pradesh Panchayat Samithis and Zilla  Parishads  Act (35  of 1959), ss. 62 and 72-Scope  of-Rules  under-Validity of. Constitution of India, 1950, Art. 226-Who can file  petition under.

HEADNOTE: In order to promote rural welfare, 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 November  1958 in accordance with the resolution of the Block Planning  and Development  Committee.   One of the  conditions  which  the village  had to comply with was that it should give 2  acres of land free and a cash contribution of at least Rs. 10,000. Since  the  amount was not paid by the  village,  the  Block Planning  and Development Committee, resolved to  shift  the primary health centre to another 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 and thereafter, on  31st July  1959 the first village also satisfied  the  condition. In  August  1959 the Committee by a  resolution  decided  to locate the contra at the second village, but the  respondent directed that the matter should be decided by the  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

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March  1962, the respondent set aside the 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 reviewed its previous  order  on  the ground  that  the  saki  order was  made  under  a  mistaken impression that the health centre was permanently located at the  first village, and directed that the centre  should  be located in the second village. The  appellant,  who  was the representative  of  the  first village in all the proceedings, filed an application  before the  High  Court  under Art. 226  of  the  Constitution  for quashing  the Government order dated 18th April  1963.   The petition was dismissed by the High Court. In appeal to this Court, the appellant contended that :  (i) Assuming the first Government order dated 7th March 1962 was made  under  s. 72(1) the impugned order dated  18th  April, 1963  reviewing  the first, was invalid: in as much  as  the prerequisite  for  the  exercise of  the  power  of  review, namely, the    existence of a mistake of fact or law or  the ignorance of any material fact, was not satisfied, (ii)  the first Government order was made under s. 62 of the Act,  and therefore could not be reviewed by the impugned order  under s.  72 and (iii) the impugned order was invalid, because  it was  made  without  giving  an  opportunity  to  the   party prejudiced  thereby.   The respondent raised  a  preliminary objection that the appellant                             173 had  no  personal right in the matter and therefore  had  no locus  stand to file the application, and also  urged,  that the impugned order was neither made under s. 62 nor under s. 72.  of  the Act, but that it was really  passed  under  the rules  made  by  the respondent in  exercise  of  the  power conferred  on it under s. 69 of the Act read with  s.  18(2) and  that therefore, no question -of review would  arise  at all  as the respondent passed the final order in  regard  to the location of the health centre. HELD  :  (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 relate to an interest of a  trustee. In  exceptional cases, a person who has been  pre-judicially 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 was  also  the  president  of  a  committee  for  collecting contributions  from the villagers for setting up the  health Centre.   His conduct, the acquiescence on the part  of  the members of the committee, and the treatment meted out to him by  the  authorities,  support the  inference  that  he  was authorised  to act on behalf of the committee which  was  in law,  the trustee of the amounts collected.  The  appellant, therefore, had been prejudiced by the impugned order and his petition under Art. 226 was maintainable. [181 F] (ii)A  reading of s. 18 of the Act with the  Schedule  shows that  under  the Act the statutory power  to  establish  and maintain  primary health centers is vested in the  Panchayat Samithi, and there is no provision vesting the said power in the Government.  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 rules, convert an authority  with power  to  establish  a primary health centre  into  only  a

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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  the  Government. Therefore,  the Rules, in so far as they make the  Panchayat Samithi  a mere recommendatory body, are  inconsistent  with the  Act, and so the impugned order could not  be  sustained under the authority of the Rules [183 F] (iii)Assuming  that the first order was made under s.  72(1) the respondent was right when it said in the impugned order, that it made a mistake of fact in passing its earlier  order on a misapprehension that there was a permanent location  of the  centre  at  the first village.  The  centre  was  never permanently  located  in  the first  village,  it  was  only located’ there subject to certain conditions which were  not fulfilled [188 F] (iv)But,  an analysis of the first order of  the  respondent demonstrates that it was nothing more than a cancellation of the resolution passed by the Samithi on 29th May 1961.   The fact  that the word "cancel" is not used and s. 62  was  not mentioned in the order could not make it anytheless an order cancelling  the resolution.  Therefore, the order  was,  one made  under s. 62 and could not be reviewed by the  impugned order under s. 72. [187 A-B] Section  62  confers a special power on  the  Government  to cancel  a, resolution passed by the Samithi, by an order  in writing, if in its opinion; 174 such  resolution  is not legally passed or is in  excess  or abuse of the power conferred by the Act, after giving to the Samithi  an  opportunity  for  explanation.   Section  72(1) confers a wide power of revision on the Government.  On  the principle  of general a specialities non derogant  the  case provided for under s. 62 must be excluded from the operation of s. 72. It follows that the order reviewed fell under  the scope  of s. 62 and that in could not be reviewed  under  s. 72,  for s. 72(3) enables the Government only to  review  an Order  made  under s. 72(1).  Further,  the  impugned  order could not be sustained as being itself an order under s.  62 of  the  Act.  The respondent, in exercise  of  that  power, cancelled  the  resolution  of the Samithi  by  its  earlier order,  and  therefore  qua that order  had  become  functus officio.   It  could not be review not could s.  13  of  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 apply to  an order  made in exercise of a quasi-judicial power  under  s. 62. [184 H-158 B; 187 D-E] (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  by  it,  the order was bad. [189 A-B] The  High  Court, however, rightly refused to  exercise  its "extraordinary  discretionary,  power  because,  if  it  had quashed  the  impugned  order. it would  have  restored  the illegal  order  of  7th March 1962.   That  order  was  also illegal  because  it was made without giving notice  to  the Panchayat Samithi is required by s. 62. [189 E]

JUDGMENT:

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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  Murthy,R.   Thiagarajan and K.    Jayaram, for the appellant. P.   Ram Reddy and A. V. Rangam, for respondent No. 1. S.   V.  Gupte,  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 against the judgment  of  a Division Bench of the  Andhra  Pradesh  High Court in a Letters Patent appeal confirming 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 18, 1963, under s.  72  of  the Andhra  Pradesh Panchayat Samithis and Zilla Parishads  Act, 1959, (Act No. XXXV of 1959), hereinafter called the Act. 175 At  the  outset it will be convenient to  survey  the  facts leading up to this appeal in their chronological order.  For the  promotion  of rural welfare, the Government  of  Andhra Pradesh  initiated  Community Development Programme  in  the said  State.  Pursuant to that Programme, each  district  in the   State  was  divided  into  Blocks,  called   Community Development Blocks.  Chintalapudi 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 Government.   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 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 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 Dhanmajigudem.   On July  11, 1959, the said Committee passed  two  resolutions, among   others.   Under  resolution  3  it   recorded   with appreciation   the   donation  of  50  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   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  forthcoming.

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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- 17 6 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 outstand  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 and also donated 2 acres of land for the purpose of locating the  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 concerned to shift it from Dharmajigudem to Lingapalem at an early  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  Lingapalem paid  up the entire contribution enthusiastically  and  that too  after  obtaining the concurrence of  the  villagers  of Dharmajigudem 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 177 Panchayat Samithi was constituted for Chintapudi. On January 7, 1960, the Government informed the Collector of West Goda- vari  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 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,

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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 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  permanently 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 on the  -round  of  inadequate notice,  the Government 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 held 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, 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  Dharmajigudem.   In regard  to  the location of the said Centre it  resolved  to locate it at Lingapalem.  On March 71, 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  func- tioning   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 and  that  the  resolution  dated  May  29,  1961,  was  not supported  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  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  Dharmajigudem  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 of 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

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consent  of the representatives of the village of  Dharmaji- gudem, the Block Planning and Development Committee resolved to  shift  the Primary Health Centre from  Dharmajigudem  to Lingapalem.  The Lingapalem village satisfied the conditions 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  it Lingapalem.   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 179 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 cancelled  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 Dhartnajigudem  in  all  the  said  proceedings,  filed   an application  before  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 thereof. (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  Pra-

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desh, raised a preliminary objection that the appellant  had no  personal  right  in the matter of the  location  of  the Primary Health Center and, therefore, he had no locus  stand to  file an application under Art. 226 of the  Constitution. lie  argued that the order of the Government dated March  7, 1962, was not simply a cancella- 180 lion  of a resolution made by the Panchayat Samithi,  but  a composite  order giving directions to the Block  Development Officer and, therefore, it fell directly within the scope of s.  72 of the Act; and, as the said order was made  under  a misapprehension  that there was a permanent location of  the Health   Centre   at  Dharmajigudem,  the   Government   had jurisdiction  to review the same under S. 72(3) of the  Act. He would further contend that even if the order dated  March 7, 1962, was passed under s. 62 of -the 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.  In addition he  raised before us a new point which was not argued either 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 the relevant Rules made by the  Gov- ernment in exercise of the power conferred on it under s. 69 of  the  Act,  read  with  sub-s.  (2)  of  s.  18  thereof, where  under the ultimate authority under the Act to  locate the  Health  Centre  was  the  Government,  though  on   the recommendation of the 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 the location of the Primary Health Centre at Lingapalem. The learned Solicitor General, appearing for the 4th respon- dent, supported Mr. Ram Reddi on all the points and  further 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 appellant had locus standi to  file a petition in the High Court under Art. 226 of  the Constitution.   This  Court  in  The  Calcutta  Gas  Company (Proprietary)  Ltd. v. The State of West Bengal(1),  dealing with  the question of locus standi of the 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  the               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 other than those               claiming  fundamental right can also  approach               the court seeking               (1)   [1962] Supp. 3 S.C.R. 1, 6.                                    181               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

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             warranto  this rule may have to be relaxed  or               modified." Has the appellant a right to file the petition out of  which the  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  the  purpose  of   collecting contributions from the villagers for setting up the  Primary Health  Centre.  The said committee collected  Rs.  10,000/- and  deposited he same with the Block  Development  Officer. The  appellant represented the village in all  its  dealings with  the  Block  Development Committee  and  the  Panchayat Samithi in the matter of the location of the Primary  Health Centre  at Dharmajigudem.  His conduct, the acquiescence  on the  part  of the other members of the  committee,  and  the treatment  meted  out to him by  the  authorities  concerned support  the  inference  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  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 petition.   A personal  right  need  not be in respect  of  a  proprietary interest  : it can also relate to an interest of a  trustee. That   apart,  in  exceptional  cases,  as  the   expression "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  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 the  appeal would fail.  Briefly stated, his contention  was that  the order of the Government dated April 18, 1963,  was not  made either under s. 62 or under s. 72 of the Act,  but was  made  only under the Rules made by  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 Govemment’s order shall be final.  Under’s. 6, a Primary Health  Centre  once  established 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 member,, of the Panchayat  Samithi present at the meeting.  Even in  such  a case the Government has no power to direct the shifting of a Primary  Health Centre established in one place to  another, if the 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  to  another  is  the Government.  On the basis of the said rules, learned counsel

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contended  that  the  High  Court  missed  the  real  point, presumably  on  the arguments advanced before it,  and  pro- 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   theretinder   clearly indicates  that  the Government acted only  under  the  said relevant  rules.   This argument so stated  appears  at  the first  blush  to  be unanswerable.  But a  scrutiny  of  the relevant provisions of the Act shows that the said 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 (1) of the Act, subject  to the  provisions of the 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 &,at  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 Gov-                             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 be 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  re- commendatory 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 18, 1963, can be sustained under s. 72 of the Act.  Section 72 of  the

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Act reads : Power of revision and review 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  Zilia  Parishad  or  of  their               Standing Committees in respect of               184               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 (1) 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)." Sub-section (1) of S. 72 of the Act confers a wide power  on the 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  sub- 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 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 passed or is  in excess or abuse of the powers conferred by or under the  Act or  for any 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.  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- 185 cumstances  mentioned therein.  The  principle  generalities specialities  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 an  order

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made  under sub-s. (1) -of S. 72.  So, the  learned  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 conveniently be read at this stage :                 Government of Andhra Pradesh        Planning and Local Administration Department. MEMORANDUM NO. 1354/Prog.11/61-2 dated 7-3-1962. Sub  Community   Development  Programme-Chintalapudi   Block -Shifting  of Primary Health Centre from  Dharmajigudeni  to Lingapalem--Orders issued. 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  with   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               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. Pratap Reddi.               Deputy Secretary to Government. It was said that the said order did not mention the  section whereunder  it  was  passed,  that it  did  not  cancel  any resolution,  that it did not in terms approve or  disapprove any  resolution, that it considered other orders issued  and finally gave a direction to the Block Development Officer to take  action in accordance with the terms of the order.   In short,  the  argument of the learned counsel  was  that  the order was not for the cancellation of the resolution of  the Panchayat Samithi but one made in terms of s. 72 of the Act. We are not impressed by this argument.  The preamble to  the

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order clearly mentions that the Panchayat Samithi  Chintala- pudi, it its meeting held on May 29, 1961, resolved to shift the Primary Health Centre permanently to Lingapalem village. Then  it  states  that the President  of  the  Dharmajigudem Panchayat  and  others  had represented  to  the  Government against  the acceptance of the said resolution.   The  order then  records that the Government had  carefully  considered the said representation.  Then it gives the reason that  the said  resolution was bad inasmuch as that under r. 6 of  the Rules the Primary Health Centre once established should  not ordinarily  be  shifted to another place within  the  Block, unless the Panchayat Samithi resolves by two-thirds majority of  the  members of the Samithi present at  the  meeting  as required by r. 7 of the Rules.  Then it point-. out that the Primary Health Centre was functioning at Dharmajigudem  and, therefore,  the  resolution, not having the support  of  the requisite  majority, did not comply with r. 7 of the  Rules. For the said reasons the order concludes that there were  no valid  reasons for shifting the Primary Health  Centre  from Dharmajigudem to Lingapalem.  The Gov- 187 ernment then gives the consequential directions to the Block Development Officer to take action accordingly.  An analysis of  the order demonstrates beyond any reasonable doubt  that it  is  nothing more than a cancellation of  the  resolution passed  by the Panchayat Samithi on May 29, 1961.  The  mere fact  that  the order does not use the  expression  "cancel" will  not  make  it any the less  an  order  cancelling  the resolution.   We,  therefore,  hold that the  order  of  the Government dated March 7, 1962, was one made under s.  62 of the Act and, therefore, it could not be reviewed under s. 72 thereof. The  learned counsel for the State then contended  that  the order dated April 18, 1963, could itself be sustained  under S.  62  of the Act.  Reliance is placed upon s.  13  of  the Madras General Clauses Act, 1891, whereunder if any power is conferred  on  the Government, that power may  be  exercised from  time to time as occasion requires.  But  that  section cannot  apply  to  an order made in  exercise  of  a  quasi- judicial  power.  Section 62 of the Act confers a  power  on the  Government  to cancel or suspend the  resolution  of  a Panchayat  Samithi, in the circumstances mentioned  therein, after giving an opportunity for explanation to the Panchayat Samithi.   If  the  Government in  exercise  of  that  power cancels  or confirms a resolution of the Panchayat  Samithi, qua  that  order it becomes functus  officio.   Section  62, unlike  s.  72, of the Act does not confer a  power  on  the Government  to review its orders.  Therefore, there  are  no merits in this contention. Before we leave s. 62 of the Act, it may be noticed that the order  dated  March 7, 1962, was passed  by  the  Government without  giving notice to the Panchayat Samithi.  It was  in violation of the mandatory provision of sub-s. (2) of s.  62 which  says that the Government shall, before taking  action under sub-s. (1), give the Panchayat Samithi an  opportunity for  explanation.   This  opportunity  was  not  given  and, therefore, that order was not legal. Now let us assume that the said order was made under  sub-s. (1) of s. 72 of the Act.  Two objections were raised against the  validity  of the order reviewing  the  previous  order, namely,  (i) there was no mistake of fact or law,  and  (ii) the  said  order,  which was  prejudicial  to  Dharmajigudem village,  was  made  without giving an  opportunity  to  the representatives   of   the   said  village   of   making   a representation.  The order gives in extension the history of

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the  dispute  between Dharmajigudem and  Lingapalem  in  the matter of location of the Primary Health Centre.  It  points out  that  all  the earlier  resolutions  of  the  Panchayat Samithi were cancelled and Sup .C/66-13 188 the  only outstanding resolution was that of May  29,  1961, whereunder  the  said  Centre was  directed  to  be  located permanently at Lingapalem.  Then it proceeds to say that the order  dated  March  7,  1962,  was  passed  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 the place where the Primary Health Centre was to be located permanently  had not till then been decided by the Government.  In that view, in supersession of the order issued by it on March 7,  1962, it   directed  that  the  said  Centre  should  be   located permanently  at  Lingapalem  as per the  resolution  of  the Panchayat  Samithi  dated  May  29,  1961.   No  doubt   the statement  in that order, namely, that the place  where  the Primary Health Centre was to be located permanently had  not so  far  been  decided by the Government, if  taken  out  of context,  may appear to be an incorrect statement,  for  the Government  by it-, order dated July 6, 1960,  approved  the proposal  of the Panchayat Samithi, Chintalapudi, to  locate the Primary Health Centre permanently at Dharmajigudem.  But an  analysis of the various orders passed by  the  Panchayat Samithi  and  the Government discloses, as we  have  already indicated,   that  the  Primary  Health  Centre  was   never permanently located at Dharmajigudem, that before the Act it was located therein subject to certain conditions which were not  fulfilled,  that after the Act the  Panchayat  Samithi, though it passed a resolution on May 28, 1960, approving the location of the said Centre permanently at Dharmajigudem and though it was approved by the Government by its order  dated July 6, 1960, cancelled its earlier resolution in accordance with  law on May 29, 1961 and voted for locating the  Centre at Lingapalem.  Therefore, the Government was right when  it said in its order that it made a mistake of fact in  passing its  earlier  order on March 7, 1962, on  a  misapprehension that  there was a permanent location of the Centre at  Dhar- majigudem. But  there  is another flaw in the order of  the  Government dated April 18, 1963, i.e., it made the order without giving an opportunity to the representatives of Dhartnajigudem  who were  prejudicially  affected by the  said  order.   Learned counsel  for the State said that the appellant could not  be considered  to  be a party prejudicially  affected  by  that order.   But, as we have stated earlier, the  appellant  was the  President of the Committee which collected the  amount, he  was  representing the village all through  and  he  also deposited  the prescribed amount with the Block  Development officer.   The  Government  should  have,  therefore,  given notice 189 either  to him or to the Committee, which  was  representing the  village  all through for the purpose  of  securing  the location of the Primary Health Centre in their village.  The order made in derogation of the proviso to sub-s. (1) of  s. 72 of the Act is also bad. The  result  of  the discussion may be  stated  thus  :  The Primary  Health  Centre  was  not  permanently  located   at Dharmajigudem.  The representatives of the said village  did not comply with the necessary conditions for such  location. The   Panchayat  Samithi  finally  cancelled   its   earlier

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resolutions  which  they were entitled to do  and  passed  a resolution   for   locating  the   Primary   Health   Centre permanently   at  Lingapalem.   Both  the  orders   of   the Government, namely, the order dated March 7, 1962, and  that dated April 18, 1963, were not legally passed : the  former, because  it was made without giving notice to the  Panchayat Samithi, and the latter, because the Government had no power under  s. 72 of the Act to review an order made under s.  62 of  the Act and also because it did not give notice  to  the representatives   of   Dharmajigudem  village.    In   those circumstances, was it a case for the High Court to interfere in  its  discretion and quash the order  of  the  Government dated  April  18, 1963 ? If the High Court had  quashed  the said order, it would have restored an illegal order-it would have  given the Health Centre to a village contrary  to  the valid resolutions passed by the Panchayat Samithi.  The High Court,  therefore, in our view, rightly refused to  exercise its  extraordinary discretionary power in the  circumstances of the case. In  the  result,  the  appeal  is  dismissed,  but,  in  the circumstances of the case, without costs.                      Appeal dismissed. 190