G. Damodar Reddy Vs Govt. of A.P., Panchayat Raj Dept. and Others

@JUDGMENTTAG-ORDER

V.V.S. Rao, J.@mdashThe Gram Panchayat, Kondamadugu, the third respondent herein, conducted an auction to lease the right to collect market fee (Rahadari fee) on the cattle brought to the cattle market of the Gram Panchayat. At Rs. 3,85,500/- per annum, the petitioner became the successful bidder and deposited Rs. 96,325/-being 1/4th of the bid amount. However, according to the petitioner, for a period of more than six months, he could not collect any market fee in the cattle market due to an agitation launched against mechanised slaughter house of Al Kabir. He, however, collected market fee for other months and paid the monthly instalment of Rs. 32,125/-.According to him, including the deposit, he paid an amount of Rs. 2,36,000/-.

2. The petitioner approached the Government on 11-1-1995 requesting to grant remission under the relevant rules. It is alleged that the second respondent visited the village and submitted a favourable report. In spite of that, the Government, the first respondent herein, passed the impugned order rejecting the application for remission and further directed the District Collector to recover the amount of Rs. 1,49,500/-. This order is assailed in this writ petition.

3. The respondents have filed a counter affidavit inter alia stating that the petitioner was not prevented from carrying out his part of the contract and, therefore, he is not entitled for remission.

4. Andhra Pradesh Panchayat Raj Act, 1994 (''the Act'') does not contain any specific provision empowering either the Panchayat, District Collector or the Government to grant remission. Section 268(2) (xi) of the Act enables the Govemment to make rules as to the conditions on which property may be acquired by a Gram Panchayat or may be transferred by sales lease, mortgage, etc. In exercise of such a similar power u/s 217 (2) (xi) of A.P. Gram Panchayats Act, 1964, the Government nave promulgated the Rules relating to the contracts to be made by Gram Panchayats (''the Rules'' for brevity). By reason of Section 276(2) of the Act (repeal clause) read with Sections 8 and 18 of the A.P. General Clauses Act, 1891, the rules made under 1964 Act have the force of law.

5. The Rules relating to the contracts made by Panchayats issued in G.O.Ms. No.964, dt. 9-9-1965 (referred to above) deal with all aspects like calling for tenders, entering into contracts and execution of contracts. Rule 22 thereof mandates that all lessees of revenue from Gram Panchayat and all persons entered into that Gram Panchayat shall be held strictly to the terms of their contract and no remission shall be granted to them except in accordance with Rules 23 and 24. Rules 23 and 24 read as under.

23. The grant of remission to lessees and contractors shall be subject to the following restrictions and control, namely:

(a) remission shall be granted, only in cases in which the lessee or contractor is prevented from carrying out his part of the lease or contract by reason of the occurrence of some extraordinary extrinsic cause which could not reasonably have been anticipated, for example, the compulsory closing on account of the outbreak of an epidemic of a market which has been leased out;

(b) the amount of remission granted, shall not exceed the proportionate amount payable under the lease or contract for the period for which the lessee or contractor was prevented from carrying out his part of the lease or contract on account of such extraordinary case; and

(c) The following shall be the authorities competent to grant the remissions for the amounts mentioned against them:-

1. Gram Panchayat     - Upto Rs. 50/-
2. Dist. Panchayat    - Above Rs.50/-
   Officer              but not exceeding Rs,l,000/-
3. District Collector - Above Rs. 1,000/-
   but not exceeding    Rs. 2,500/-
4. Commissioner,      - Above Rs. 2,500/-
   PR & RD              but not exceeding
                        Rs. 10,000/-
5. Government         - Above Rs. 10,000/-

24. Penalties provided in the lease or contract shall be strictly enforced in accordance with the terms of the lease or contract. Penalties for late payment of the amount due to the gram panchayat under the lease or contract shall not be remitted except in cases where the payments of instalments of the amount due are, in the opinion of the gram panchayat, fairly regular and the whole amount due to the gram panchayat under the lease or contract is paid before the end of the period to which the lease or contract relates:

Provided that when the amount remitted exceeds fifty rupees in each case, the previous sanction of the District Panchayat Officer shall be obtained.

6. A plain reading of the above Rules shows that it is permissible for the competent authority, in this case, the Government, to grant remission only when the contractor is prevented from carrying out his part of the contract by reason of the occurrence of some extraordinary extrinsic cause which could not reasonably have been anticipated. Rule 23 (a) of the Rules also mentions the outbreak of an epidemic due to which the market was closed. Any exercise of power under Rule 23, therefore, requires determination of facts and events which would be contentious. Therefore, it must be held that the power of a competent authority to grant remission is basically a quasi-judicial power. In this context, a reference may be made to the judgments of the Supreme Court in Province of Bombay Vs. Kusaldas S. Advani and Others, and Jaswant Sugar Mills Ltd., Meerut Vs. Lakshmichand and Others, , wherein it was held that where administrative determination has many of the attributes of judicial function, the same must be characterised as quasi-judicial function. Before exercising the power to grant remission under Rule 23 of the Rules, the Government have necessarily to determine whether the contractor could not collect market fee owing to various reasons. Even where the Government decides these issues not between two inter parties, still having regard to some attributes and trappings of an authority, it must be held that power to grant remission is basically a quasi-judicial function.

7. A reading of the impugned order shows that in determining the facts of the case, before applying the relevant law, the Government have ignored the relevant facts and placed more reliance on irrelevant facts. The concerned file has been placed before the Court. A perusal of the report sent by the District Collector on 6-1-1.995 would show that on inspection the second respondent found that in fact the petitioner could not collect market fee at least for the months of July and August during the financial year 1994-95. The impugned order no doubt adverts to this but proceeds further on a surmise that the petitioner collected Rs.10,000/- to Rs. 15,000/- per week. This statement of the fact in the impugned order is not in accordance with the report submitted by the second respondent.

8. It is well settled that when a quasi-judicial order is purportedly passed on objective consideration of the criteria and is based on both irrelevant and relevant facts, the Court of judicial review cannot substitute its opinion for the reason that both relevant and irrelevant are determining factors and the Court should strike down the order and remit back the matter to the competent authority. In this connection, a reference may be made to the judgment delivered by me in Mohd. Riazuddin and others Vs. Govt. of A.P. and others, , which was also affirmed by a Division Bench of this Court.

9. In the result and for the foregoing reasons, the impugned order in Memo. No. 3252/Pts.III/A2/95-7, dated 8-12-1997 is set aside. The matter is remitted back to the first-respondent to give necessary adequate opportunity to the petitioner and pass appropriate orders.

10. The writ petition is accordingly allowed. No order as to costs.