TaxTMI 
TaxTMI 
TaxTMI 
2020 (1) TMI 1463
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....oner has also prayed for a writ of certiorari to quash order dated September 14, 2007 (annexure 9 to WP-1) issued by the Additional Legal Adviser informing Regional Deputy Director, Mandi Samiti, Varanasi that vide order dated August 13, 1999 he has been authorized to decide revision under section 32 of the Act, 1964. The petitioner has also prayed for a writ of mandamus commanding respondent 1 to exercise its power under section 33B of the Act, 1964 and also prayed that section 20 of the Act, 1964 be declared ultra vires and unconstitutional. 3. Facts in brief, giving rise to WP-1, are that vide Government Order dated December 24, 2001 (annexure 1 to WP-1) two per cent. exemption in mandi fee and half per cent. rebate in development cess was granted, besides two per cent. concession in trade tax. The petitioner conducted business in the financial years (hereinafter referred to as "F. Y.") 2003-04, 2004-05, 2005-06. The exemption aforesaid was granted for the F. Y. 2001 to 2006. Therefore, with the end of scheme, the petitioner's business also stood closed. However, the petitioner received a letter dated April 30, 2007 issued by the Mandi Samiti, Ballia (respondent No. 5), rai....
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....ition No. 3271 of 2008 (hereinafter referred to as "WP-2") and Writ Petition No. 3272 of 2008 (hereinafter referred to as "WP-3") are also similar inasmuch therein also order passed by the Deputy Director deciding the petitioner's revision vide order dated March 31, 2008 are under challenge on the same grounds, therefore, I am not repeating the facts since question of law raised in all these writ petitions is common and same. 8. Thus issue up for consideration in all these writ petitions is "whether Director was competent to delegate power of deciding revision filed under section 32 of Act, 1964 upon Deputy Director". In other words, "whether power conferred upon Deputy Director to decide revision under section 32 of the Act, 1964 is validly exercised power", and "whether revision has been decided by competent statutory authority or not". 9. In order to examine the aforesaid issue I may have a bird eye view of Act, 1964. 10. The Act, 1964 was enacted with an objective to regulate agricultural markets in State of U. P. with a view to achieve the following objects : "(i) to reduce the multiple trade charges, levies and exactions charged at present from the producer-sellers ;....
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....ll be a Committee to be called "mandi samiti" of every market area which shall be a body corporate having perpetual succession and an official seal. Subject to such restrictions and/or qualifications, if any, imposed by the Act, 1964 or any other enactment, "mandi samiti" may sue or be sued in its corporate name and acquire, hold, and dispose of property and enter into contracts. A "mandi samiti" is deemed to be a local authority for the purposes of Land Acquisition Act, 1894 (hereinafter referred to as "the Act, 1894") and any other law for the time being in force by virtue of section 12(2) of the Act, 1964. I am not going into details of the Committee, its power, etc., as the same are of no relevance to the issues raised in these writ petitions. 13. Chapter V deals with external control of market area, etc. Section 26A empowers State Government to constitute a Board by the name of State Agricultural Produce Markets Board with its head office at Lucknow (here- in-after referred to as "Board"). I may notice at this stage that definition of Board under section 2(a-i) states that "Board" means the State Agricultural Produce Markets Board constituted under section 26A. The constituti....
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....nts in such forms as may be prescribed and get the same audited in such manner as may be laid down in regulations of the Board ; (v) to publish annually at the close of the year, its progress report, balance-sheet, and statement of assets and liabilities and send copies to each member of the Board as well as to the Chairman of all Market Committees ; (vi) to make necessary arrangements for propaganda publicity on matters related to regulated marketing of agricultural produce ; (vii) to provide facilities for the training of officers and servants of the Market Committees ; (viii) to prepare and adopt budget for the ensuring year ; (ix) to make subventions and loans to Market Committees for the purposes of this Act on such terms and conditions as the Board may determine ; (x) to do such other things as may be of general interest to Market Committees or considered necessary for the efficient functioning of the Board as may be specified from time to time by the State Government." 17. Section 27 provides power and duties of director and reads as under : "27. Powers and duties of the director.-(1) Subject to the provisions of this Act, the general superintendence, directio....
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...., 1965 and it reads as under : "133A. Revision under the Act (section 32).-(1) A fee of rupees ten in cash shall be deposited with the Committee for every revision to be filed under the Act and a receipt therefor shall be obtained from the Committee. (2) No revision under the Act shall be entertained unless it is accompanied by a receipt duly granted by the Committee for the payment of the amount of fee as referred to in sub-rule (1). (3) Subject to the provisions of sub-rule (2), on receipt of a revision under section 32 of the Act, the Board or the officer nominated by it shall after examining the case and affording the person concerned a reasonable opportunity of being heard in person, dispose of the revision within 60 days from the date of filing of the revision. The Board or the officer nominated by it shall during the hearing of the revision also consider the propriety of the order passed by the committee on the basis of merit and demerit thereof and pass the suitable order. The order passed by the Board or the officer nominated by it shall be final and binding." (emphasis added) 22. Rule 135 of the Rules, 1965 talks of power of Director in certain cases with re....
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....tion is permissible but such agency cannot further entrust such task to its subordinates. It would be a breach of confidence reposed on delegate. With regard to delegation of non-legislative/administrative powers on a person or a body to do certain things, whether delegatee himself is to perform such functions or whether after taking decision as per the terms of the delegation, the said agency can authorize the implementation of the same on somebody else, depends upon the statute concerned. Once power is conferred, after exercising power of taking decision as per the policy, etc., the question how to implement the decision taken in the process, is a matter of procedure. The Legislature may, after laying down legislative policy, confer discretion on an administrative agency with regard to execution of policy. It can leave this task to agency to work out the details within the framework of that policy. So long as essential functions of decision making is performed by the delegate, the burden of performing the ancillary and clerical task need not be shouldered by the primary delegate. It is not necessary that primary delegate himself should perform ministerial acts as well. Implementa....
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....-delegation of power is authorised by express words or necessary implication. 27. This court has also followed authorities in Gwalior Rayon Silk Mfg. (Wvg.) Co. Ltd. v. Assistant Commissioner of Sales Tax [1974] 33 STC 219 (SC) ; [1974] 94 ITR 204 (SC) ; [1974] 4 SCC 98 and Director General, E.S.I. v. T. Abdul Razak [1996] 4 SCC 708 in its judgment in Writ Petition (Writ-A) No. 786 of 1995 (Ravinder Kumar Pal v. Nideshak, Karmchari Rajya Beema Sharam Chikitsalay) decided on December 18, 2013, paras 5 and 6 whereof read as under : "5. However, I find no force in the submission. It is well-settled legal principle in constitutional and administrative law that 'delegatus non potest delegare', 'one to whom power is delegated cannot himself further delegate that power' (see Gwalior Rayon Silk Mfg. (Wvg.) Co. Ltd. v. Assistant Commissioner of Sales Tax [1974] 33 STC 219 (SC) ; [1974] 94 ITR 204 (SC) ; 1974 AIR 1660). 6. Following the above principle, apex court in Director General, E.S. I. v. T. Abdul Razak, AIR 1996 SC 2292 has held as under : 'The law is well-settled that in accordance with the maxim delegatus non potest delegare, a statutory power must be exer....
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....king a provision in the Rules or under the orders of the Chief Justice or by issuing practice directions, and at times, in the absence of rules, by sheer practice. The practice gathers the strength of law and the older the practice the greater is the strength . . ." 29. In NGEF Ltd. v. Chandra Developers P. Ltd. [2005] 127 Comp Cas 822 (SC) ; [2005] 8 SCC 219, the court has observed that BIFR being a statutory authority, in absence of any provision empowering it to delegate its power in favour of any other authority, had no jurisdiction to do so. "Delegatus non potest delegare" is a well known maxim which means unless expressly authorized a delegate cannot sub-delegate its power. 30. Referring to some of the above authorities, same proposition of law has been followed in Sidhartha Sarawgi v. Board of Trustees for the Port of Kolkata [2014] 16 SCC 248 and Union of India v. B. V. Gopinath [2014] 1 SCC 351. 31. Now we will examine the issues raised before this court in the present case in the light of above exposition of law. 32. The definition of "Director" includes any other officer authorized by director to perform all or any of his functions under the Act, 1964. 33. Section 3....
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....bstantial and those called upon to satisfy the demands raised against them would like their cases to be heard by a senior officer or a Committee of officers to be nominated by the Board. But in the absence of any data as to the number of cases that arise for consideration involving a challenge to the demands raised by the Market Committee and the nature of the disputes that generally fall for determination in such cases, it will not be possible for this court to step in and direct an alteration in the mechanism that is currently in place. The power to decide the revisions vests with the Board who also enjoys the power to delegate that function to the Director. So long as there is statutory sanction for the Director to exercise the revisional power vested in the Board, any argument that such a delegation is either impermissible or does not serve the purpose of providing a sui table machinery for adjudication of the disputes shall have to be rejected. 35. It is noteworthy that rule 133A of the Rules framed under the Act regulates the filing and disposal of the revision petitions under section 32 thereof. This provision was inserted with effect from May 11, 2008 and empowers the Boar....