Judgement
The plaintiff is the appellant. He filed a suit for recovery of Rs. 5,300/- as damages sustained by him on account of the rash and negligent driving of the motor bus belonging to the first defendant by his driver as a result of which the bus fell into a canal and the plaintiff received very serious and grievous injuries. It is found by the Court below in paragraph 8 of the judgment that the accident was true and that the plaintiff received the injuries as a result of the rash and negligent driving of the first defendants driver. The suit was, however, dismissed by the learned Subordinate Judge on the ground that it was barred by time.
2. Two questions arise for decision in the appeal (1) Whether the suit as against the second defendant, the Insurance Company, is barred by limitation; and (2) Whether the suit is maintainable directly as against the Insurance Company. It is the case of both parties that the accident took place on 26-3-1947 and that the suit was instituted on 27-3-1950, 26th March being a public holiday. It is clear that, under Art. 22 of the Limitation Act, the suit as against the first defendant (the owner of the bus) is barred by limitation.
3. The main question that arises for consideration in the appeal is whether the plaintiff, who was travelling by the bus and who sustained the injuries, has direct recourse as against the Insurance Company, under the insurance policy effected by the first defendant with the second defendant. The plaintiff relied on Art. 86 (b) of the Limitation Act and contended that, as the suit was instituted within three years from the date of the accident, the suit is in time.
Article 86 (a) relates to a suit on a policy of insurance when the sum insured is payable after proof of the death has been given to or received by the insurers. Columns 2 and 3 provide a period of three years from the date of the death of the deceased. Article 86 (b) on which reliance is placed runs as follows :
Description of Suit. Period of Limitation. Time from which period begins to run.
The date of the occurrence causing the loss.
On a policy of insurance when the sura insured is payable after proof of the loss has been given to or received by the insurers.
I have no doubt, on a reading of Art. 86 (b), that the suit contemplated is only a suit by the insured as against the Insurance Company. The third party, who sustained the injury and who obtained a judgment as against the insured, may execute the decree as against the insured and not proceed as against the Insurance Company under S. 96 of the Motor Vehicles Act, in which event, the insured has a right to proceed as against the Insurance Company and enforce the policy of insurance. It is in such cases that a period of three years is provided. It does not apply to suits by third parties as against the Insurance Company.
Sri Chandrasekhara Sastry, the learned Advocate for the appellant, relied upon the omission of the word assured in Art. 86 (b). I do not think that the omission of the word assured makes any difference. I am inclined to take the view that Art. 86 (b) relates only to suits by the assured or in the right of the assured. I therefore agree with the Court below that the suit by the third party is not covered by Art. 86 (b) of the Act. As the suit as against the first defendant is barred by limitation, the suit as against the Insurance Company would also be barred.
4. Apart from resting my judgment on the question of limitation, I hold that the suit as against the Insurance Company, by the third party is not maintainable. Though an issue in specific terms has not been raised on this point, I am inclined to take the view, on a reading of Ss. 96 and 97 of the Motor Vehicles Act that the suit by the third party is unsustainable. Section 96 (1) provides that if, after a certificate of insurance has been issued under S. 95 (4) in favour of the person by whom a policy has been effected, judgment in respect of any such liability is obtained against the person insured by the policy, then the insurer shall pay to the person entitled to the benefit of the decree any sum not exceeding the sum assured, as if he were the judgment debtor, in respect of the liability, together with any amount payable in respect of interest on that sum by virtue of any enactment relating to interest on judgments.
So, it is clear from the language of S. 96 (1) that the suit must be filed as against the insured and a judgment obtained against him. It is only after the judgment is obtained against the insured that the sum is recoverable from the insurer, i.e., the Insurance Company. Section 96 (2) provides for the issue of notice to the Insurance Company and the defences that might be raised by the Insurance Company if made a party. From the terms of S. 96 (2), it is implicit that no suit as against the Insurance Company can be maintained by the third party taking advantage of the Insurance policy. Section 97 supports this conclusion.
If the insured becomes an insolvent the rights against the insurer stand transferred to and vest in the third party to whom the liability was so incurred. Section 97 (4) enacts that upon a transfer under Sub-s. (1) or sub-s. (2) the insurer shall be under the same liability to the third party as he would have been to the insured person. So if the insured becomes an insolvent, the third party would be entitled, under the provisions of S. 97, to have a direct recourse as against the insurance company under the terms of the policy of insurance.
I am therefore clear, on the reading of the terms of Sections 96 and 97, that the third party would not be entitled to maintain a suit as against the Insurance Company except in the case of the insolvency of the insured. As aforesaid if a decree is obtained against the insured, the decree may be executed against the Insurance Company treating it as a judgment-debtor under the terms of S. 96. This view of mine is supported by the decision of the Bombay High Court in British India General Insurance Co. v. Janardan, AIR 1938 Bom 217 (A), and of the Punjab High Court in Des Raj Pahwa v. The Concord of India Insurance Co. Ltd., Calcutta, AIR 1951 Punj 114 (B). In AIR 1938 Bom 217 (A), at page 218, Norman J. repelled the argument of Mr. Gokhale in the following terms :
"Mr. Gokhale argues that this clause constitutes the passengers the beneficiaries, the insurance company being the trustee and the insured the author of the trust. I am unable to agree. What is insured against is the insureds legal liability and that shows that the policy is taken out for his benefit and not for the benefit of any passenger."
I agree with the learned Judge that the contract of insurance entered into between the first and second defendants cannot be taken advantage of by the plaintiff, the passenger, as he is not a party to the contract of insurance. His rights are limited to the rights provided under the
Motor Vehicles Act, 1939. In
AIR 1951 Punj 114 (B). the question arose whether a third party is entitled to avail himself of the clause for reference of any dispute arising between the owner of the car and the company to arbitration. It was held that the third party was not entitled to take advantage of the arbitration clause. At page 115, the learned Judge observed as follows :
"There is no doubt that in the insurance contract between Mr. Tawakley and the Company there was a clause for reference of any dispute arising between them out of the policy to be referred to arbitration (sic) but the dispute is not between Mr. Tawakley and the company, the claimants being a third party. Under the Ordinary law the only persons who can take legal steps to enforce the terms of contract are the parties to the contract.
xx xx xx
At page 116, the learned Judge negatived the argument that, in a contract of insurance for third party risks, there was a kind of trust created for the benefit of any third party who might suffer injury or loss. I agree with him that no trust can be spelled out and that the third party cannot be regarded as a cestui que trust on whose behalf the policy was effected. I follow the two decisions aforesaid and hold that the suit as against the Insurance Company is not maintainable. In the result, the appeal fails and is dismissed, but I make no order as to costs.
Appeal dismissed. AIR 1958 ANDHRA PRADESH 311 (VOL. 45, C. 86) "Vijayawada Rate-payers Assocn. v. The State"
ANDHRA PRADESH HIGH COURT
Coram : 2 K. SUBBA RAO, C.J. AND SRINIVASACHARI, J. ( Division Bench )
The Vijayawada Rate-payers Association, Bezwada and another, Petitioners v. The State of A. P. and others, Respondents.
Writ Petn. No. 306 of 1957, D/- 24 -12 -1957.
(A) Madras District Municipalities Act (5 of 1920), S.305, S.124 and Sch.4, R.8A (as added by Andhra Government Order, date -1956) - MUNICIPALITIES - Municipalities - Power of Government to add rule to Sch. IV.
Semble : By virtue of the enabling S. 305, the State Government has power to add a rule, in this case B. 8-A, to Sch. IV and the rule when so added is to be read, by reason of S. 124 of the Act, as part of Chapter VI. (Para 4)
(B) Madras District Municipalities Act (5 of 1920), S.303 and S.305 and Sch.4 and R.8A (as added by Andhra Government Order, dated 20-03-1956) - MUNICIPALITIES - CONSTITUTIONALITY OF AN ACT - Municipalities - Rule making power of Government u/S.303 and u/S.305 - Validity of R.8-A on Sch. IV.
While in the case of the power under S. 303 the rules are subject to the conditions of pre-publication in the manner prescribed by S. 304, in the case of power under S. 305 the rules made will have to be approved by both the Houses of the State Legislature and published thereafter. The exercise of the power under both the sections is controlled by different procedures. When one rule confers general power on the Government to make rules and the other confers a special power in respect of a particular subject-matter, it is manifest that on the principle of generalibus specialia derogant (special things derogate from general) a rule made in respect of a particular matter can be made only in exercise of the special power conferred on the Government. Hence, no objection can be taken to the addition of R. 8-A when it is not suggested that the procedure prescribed under S. 305-A was not followed in making the rule. (Para 6)
(C) Madras District Municipalities Act (5 of 1920), Sch.4, R.8A (Andhra) - MUNICIPALITIES - OBJECT OF AN ACT - Municipalities - Scope.
Rule 8-A in Sch. IV, as added by the Andhra Government Order, dated 20-3-1956, is not confined to the categories mentioned in the proviso to S. 82 (2) but to all properties in municipalities notified under that rule. (Para 7)
(D) Madras District Municipalities Act (5 of 1920), Sch.4, R.8A (Andhra) and R.9 - MUNICIPALITIES - REVISION - Municipalities - Revision of assessment - Public notice by valuation Officer - Validity.
As the issue of public notices relates to the revision of assessment under the rules, the Valuation Officer, who is empowered by R. 8-A to discharge the duties and perform the functions of the executive authority under the rules which certainly takes in R. 9, can discharge the duty of the executive authority to issue public notices. Hence, there is no merit in the contention that public notice under R. 9 of Sch. IV was not issued by the executive authority but only by the Valuation Officers and, therefore, the notice was invalid. (Para 8)
(E) Madras District Municipalities Act (5 of 1920), Sch.4, R.8A (Andhra) and R.9 - MUNICIPALITIES - WORDS AND PHRASES - PRINCIPLES - NATURAL JUSTICE - Municipalities - "Revision" - Meaning of - No violation of principle of natural justice.
Natural justice.
Though the word revision is used in connection with the objections raised by the concerned owners or occupiers in the municipal assessment proceedings, the word should not be confused with the revisional jurisdiction exercised by Courts or some superior authorities under particular Acts. It is really in the nature of giving an opportunity to the party before finalising the assessment which in the beginning is made by the Valuation Officer on his own information and enquiry behind the back of the owner or occupier of a house. (Para 12)
(F) Madras District Municipalities Act (5 of 1920), Sch.4, R.8A (Andhra) - MUNICIPALITIES - Municipalities - Validity of appointment of Valuation Officers.
As the rules of Sch. IV have been validly amended by the Government and as they are to be deemed by virtue of S. 124 to be part of the provisions of Chapter VI, the Government has power to appoint a Valuation Officer to discharge specified functions without making him subordinate to the executive authority or other authorities mentioned in S. 6 (1) of the Act. For, the Act itself and not R. 8-A only should be deemed to have conferred power upon the Government to appoint Valuation Officers to perform the functions allocated to them under the rules. In this view, it must be held that the appointment, by the Government, of Valuation Officers to the Vijayawada Municipality for the purpose of revising property tax assessment is valid. (Para 14)
G. Venkatarama Sastry, for Petitioners; The Government Pleader (M. Seshachalapathi), for Respondents.
Judgement
K. SUBBA RAO, C.J. :-
This is a petition under Art. 226 of the Constitution of India filed by the Vijayawada Rate Payers Association, Vijayawada, represented by its Secretary and another for the issue of a Writ of Mandamus against the respondents directing them not to give effect to the general revision of assessments effected in or about March 1957 in the Vijayawada Municipality.
2. The facts are simple and may be briefly stated. The assessment books of the Municipality are revised by the executive authority once in every five years. The executive authority may amend the books at any time between one general revision and another by inserting therein or removing therefrom any property or by altering the valuation of any property or the amount of tax. The executive authority of the municipality is the Commissioner.
The State Government added R. 8-A to the schedule of the District municipalities act (hereinafter referred to as the act) by order dated 22-3-1956 whereunder Valuation Officers shall be appointed by the State Government in the case of any of the Municipalities notified by it. In pursuance of this rule, the State Government appointed Valuation Officers to the Vijayawada Municipality and respondents 3 and 4 are the persons who are now occupying that position. In or about March 1957, the previous Valuation Officers made a general revision of the assessments in the Vijayawada Municipality. They issued public notices under R. 9 inviting revision petitions within a period of thirty days from 12-3-1957. They also issued individual notices to the various rate-payers. The petitioners allege that the revision of assessments made by the Valuation Officers in or about March 1957 was illegal on various grounds. They have filed the writ petition in this Court for the aforesaid reliefs.
3. Various objections are raised to the validity of the revision of assessments made by the Valuation Officers and we shall proceed to consider them seriatim.
4. The first objection raised is that the State Government has no power to amend Schedule IV of Act 5 of 1920 by adding to or inserting a rule in that schedule and that it could be done only by suitably amending the Act by the Legislature. The Government of Andhra, by their Order dated 20-3-1956, inserted R. 8-A after R. 8 in Schedule IV of the Act.
That rule enabled the Government to appoint Valuation Officers to exercise the powers, discharge the duties and perform the functions of the executive authority in so far as they related to the revision of the assessment books under R. 8, in the case of Municipalities notified by the State Government. The contention is that, by reason of S. 124 of the Act, the rules and tables embodied in Schedule IV shall be read as part of Chapter VI and, therefore the argument proceeds that, as the rules of Schedule IV are part of the Act, they can be amended only in the manner the Act can be amended i.e., by the Legislature. But, there is an obvious fallacy in this argument. Section 305 of the Act enables the State Government to make rules altering, adding to or cancelling any of the following schedules to the Act viz., schedules II, III, IV, V and VI. Under this section, the rules in Schedule IV can certainly be altered, added to or cancelled by the State Government and, if so altered, the altered rules of the schedule shall be read, by reason of S. 124 of the Act, as part of Chapter VI. But it is said that Section 305 authorises the Government only to alter, add to or cancel the whole schedule and not to add additional rules to the same. We cannot appreciate this argument, for inserting R. 8-A in the rules of Schedule IV is certainly making a rule adding to Schedule IV. There is, therefore, no force in the first contention.
5. The next argument is that the State Government could have added the rule to the schedule under S. 303 (1) or (2) (k) of the Act and that, as the said rule was made without previous publication, it was invalid. The Government Pleader counters this argument by stating that the rule was not made in exercise of the power conferred on the Government under S. 303 of the Act but conferred on it under S. 305 of the Act and, therefore, pre-publication was not a condition precedent for exercising the power. The material provisions, in so far as they are relevant to the question raised, are as follows :
"Section 303 (1) The State Government may make rules to carry out all or any of the purposes of this Act not inconsistent therewith.
(2) In particular and without prejudice to the generality of the foregoing power they may make rules (k) as to the mode in which the officers of the State Government shall advise and assist Municipal Councils in carrying out the purposes of this Act.
Section 304:
The power to make rules under S. 303 is subject to the following conditions :
(a) a draft of the rules shall be published in the official gazette;
(b) such draft shall not be further proceeded with until six weeks after such publication or until such later date as the State Government may appoint;
(c) All rules made under S. 303 shall be published in the official gazette and upon such publication shall have effect as if enacted in this Act.
Section 305 : The State Government may make rules altering, adding to or cancelling any of the following schedules of this Act, namely : Schedules II, III, IV, V and VI.
"Section 305-A : A draft of the rules proposed to be made under sub-s. (2) of S. 77-A or under sub-s. (1) of S. 305 shall be laid before each of the Houses of the State Legislature and the rules shall not be made unless both Houses approve the draft either without modification or addition or with modifications or additions to which both the Houses agree; but upon such approval being given the rules may be made in the form in which they have been approved and such rules on being so made shall be notified in the Official Gazette and shall thereafter be of full force and effect."
6. Section 303 authorises the Government to make rules to carry out all or any of the purposes of the Act not inconsistent therewith and, in particular, rules with reference to the matters mentioned in that section, whereas S. 305 enables the Government to make rules to alter, add to or cancel any of the schedules including Schedule IV. The exercise of the power under S. 303 is made subject to the conditions laid down in S. 304. The exercise of the power under S. 305 is subject to the procedure prescribed under S. 305-A. While in the case of the power under S. 303 the rules are subject to the condition of pre-publication in the manner prescribed by section 304, in the case of power under S. 305 the rules made will have to be approved by both the Houses of the State Legislature and published thereafter. The exercise of the power under both the sections is controlled by different procedures. When one rule confers general power on the Government to make rules and the other confers a special power in respect of a particular subject-matter, it is manifest that on the principle of GENE-RALIBUS SPECIALIA DEROGANT (special things derogate from general) a rule made in respect of a particular matter can be made only in exercise of the special power conferred on the Government. Indeed, the Government purported to make Rule 8-A only in exercise of the powers conferred upon it under S. 305. It is not suggested that the procedure prescribed under S. 305-A was not followed in making the rule.
7. It is then said that Rule 8-A, should have been made under S. 82 (3) of the Act, read with S. 303 and, therefore, Rule 8-A should have been made in compliance with the provisions of section 304 of the Act. Section 82(3) of the Act reads :
"The State Government shall have power to make rules regarding the manner in which, the person or persons by whom and the intervals at which, the value of the land, the present cost of erecting the building and the amount to be deducted for depreciation, shall be estimated or revised, in any case or class of cases to which Cl. (a) the proviso to sub-s. (2) applies, and they may, by such rules, restrict or modify the application of the provisions contained in Schedule IV to such case or class of cases."
Clause (a) of the proviso to sub-s. (2) reads : "Provided that (a) in the case of
(i) any Government or railway building or
(ii) any building of a class not ordinarily let the gross annual rent of which cannot, in the opinion of the executive authority, be estimated the annual value of the premises shall be deemed to be six per cent, of the total of the estimated value of the land and the estimated present cost of erecting the building after deducting for depreciation a reasonable amount which shall in no case be less than ten per centum of such cost."
The rule-making power under sub-s. (3) of S. 82 is only confined to the two categories of buildings mentioned in the proviso to sub-s. (2) of S. 82. Rule 8-A is not confined to the categories mentioned in the proviso but to all properties in municipalities notified under that rule. It is not necessary to express our view on the question whether the power conferred on the State Government to make rules under S. 82 (3) is de hors the power of the Government to make rules under S. 303 of the Act, or, is controlled by the limitations laid down on the power by S. 303, for the Government did not exercise the limited power conferred on it under sub-s. (3) but amended the schedule in exercise of the power conferred on it under S. 305. We, therefore, hold that R. 8-A was validly made.
8. It is then said that public notice under R. 9 of Schedule IV was not issued by the executive authority but only by the valuation officers and, therefore, the notice was invalid. It is true that, under R. 9, the executive authority shall give public notice stating that the revision petitions will be considered if they reach the municipal office within a period of sixty days from the date of such notice in the case of the Government a railway administration or a company and thirty days in other cases. Admittedly, in the present case, the said notice was issued by the Valuation Officer. But R. 8-A says that the Valuation Officers shall exercise the powers, discharge the duties and perform the functions of the executive authority under these rules in so far as they relate to the revision of assessment. As the issue of public notices relates to the revision of assessment under the rules, the Valuation Officer, who is empowered to discharge the duties and perform the functions of the executive authority under the rules which certainly takes in R. 9, can discharge the duty of the executive authority to issue public notices. There are no merits in this contention.
9. Nor can we accept the contention of the learned Counsel that individual notices were not given in strict compliance with the provisions of the Act on the ground that they did not give the specific reasons peculiar to each assessee or on the ground that the notices contained the facsimile signature of the Valuation Officer and not his signature. A specimen of the notice reads thus :
"Take notice that in virtue of the power vested in the Valuation Officer under R. 8 of Schedule IV to the Madras District Municipalities Act, 1920, the assessment in respect of your property survey No. 15, situated in...... . . . .street in this Municipality has until further notice been fixed at increased for reasons specified to the amount shown below with effect from the half year commencing 1st April, 1957. In case you are dissatisfied with the assessment now fixed, you can present a revision petition to the Valuation Officer within thirty days from the date of service of this notice. If no complaint against or objection to the assessment is presented within the above-mentioned period of thirty days, the assessment will be final.
"Annual value. Amount of tax.
Existing assessment, if any.Increased tax : Rs. 10-0-0
Rs. 20-0-0
Rs. 1-7-6
Reasons for the increase if any : Since theprevious tax: levied is insufficient.
Sd/......
Valuation Officer."
10. It is not disputed that, except in regard to the value and the amount of tax, all the notices issued were in the same form. The said notice was given in the prescribed form. It gave all the particulars of assessment required by the owner of a building, namely, the description of the property, the period for which, the assessment was made, the annual rental value of the property and the amount of tax imposed. It also gave the reasons though in general terms, for increasing the amount of tax. The purpose of the notice was to inform the party concerned as to his liability so that he might have an opportunity to get it revised. We cannot say that the notice was not in compliance with the provisions of R. 9 of Schedule IV.
11. We do not also find any substance in the contention that the notice did not contain the signature of the Officer but only his facsimile. We are also not satisfied that the use of the facsimile signature indicates in the present case that the Valuation Officer did not exercise his mind but only followed a mechanical process with a predetermined mind. From the notice it appears that the previous assessments were low in respect of all the houses and, therefore, the grounds for enhancement were common in respect of all the houses. The Valuation Officers presumably scrutinised the previous assessment of all the houses and enhanced the tax and the particulars thereof were mentioned in the notice. As the reasons for the enhancement were the same for all the properties, the mere use of the facsimile signature does not indicate that the Valuation Officers did not exercise their mind. Except a general argument, no particular circumstances have been brought to our notice indicating that any of the assessees have been prejudiced by the use of the facsimile signature. We reject this contention.
12. It is then said that the Valuation Officers, being persons responsible for the revision, cannot be Judges of their own cause and seek to dispose of the revision petitions themselves and that such procedure is opposed to all principles of natural justice. In the counter-affidavit filed by the State, it is stated that the Valuation Officers, who issued the notices are no longer functioning in the Vijayawada Municipality and that there are executive instructions given by the Government to the effect that the revision petitions shall be disposed of by a set of Valuation Officers different from those who actually conducted the revision of the assessment. In view of the aforesaid circumstances, the doctrine sought to be invoked, namely, that a man cannot be a Judge in his own cause has no application to the present case. That apart, the argument discloses a misconception in regard to the duties or the functions of Valuation Officers and the nature of the revision of tax conducted by them. The executive authority or the Valuation Officer, who replaced him in the case of notified municipalities, revises the assessment once in five years. The revision could be made after the necessary enquiry and relevant entries will be made in the account books. After the revision of the tax has been made, public and individual notices will be issued and also where there is an enhancement, special notice will be served on the owner or occupier of the property concerned stating that the revision petitions would be considered if they reach the municipal office within a prescribed time. After hearing the revisions, the executive authority or the Valuation Officer as the case may be disposes of the revisions, and communicates the order made to the concerned parties. Appeals lie against those orders to the Municipality. Though the word revision is used in connection with the objections raised by the concerned owners or occupiers, the word should not be confused with the revisional jurisdiction exercised by Courts or some superior authorities under particular Acts. When a revision of assessment is made by the Valuation Officer, he does it on his own information and enquiry behind the back of the owner or occupier of a house. The notice issued by him is more analogous to a notice calling upon the owner or occupier to show cause why the assessment made should not be confirmed. If an objection is filed, the Valuation Officer hears the objections and, if he is satisfied, rectifies the assessment made by him prior to the notice. The objection filed by the assessee is not, therefore, in the nature of an appeal or revision from an order of a subordinate tribunal to a higher tribunal. It is really in the nature of giving an opportunity to the party before finalising the assessment. In this view, no principle of natural justice is violated. We, therefore, reject this contention.
13. Finally, it is contended that R. 8-A is inconsistent with the provisions of the Act and, therefore, is ultra vires. This argument is elaborated by stating that, under the Act, only three officers were charged with carrying out the provisions of the Act and that the Government cannot make a rule adding another officer or officers for carrying out the provisions of the Act. To appreciate this argument, some of the relevant provisions of the Act will have to be considered. Under S. 6, the Municipal Authorities charged with carrying out the provisions of the Act are (a) a council (b) a Chairman and (c) an executive authority. Section 3 (8-C) defines "executive authority" to mean, in the case of municipalities included in Schedule IX or notified under sub-s. (1) of S. 12-C, the Commissioner, or, if there is no Commissioner in charge, the Chairman. The executive authority is appointed by the Government under S. 12-C and is liable to be removed by the Government. Section 13-A defines the functions of the executive authority. The Act defines the powers, duties and functions of the Executive Authority. See Ss. 15, 16, 19, 22, 33 (2) and 64. Section 18-A (3) enables the executive authority to delegate any of his functions to any officer or servant of the council or to any servant of the Government and the exercise or discharge of any functions so delegated shall be subject to such restrictions, limitations and conditions as may be laid down by the Commissioner and shah also be subject to his control and revision. Section 70 provides for the consent of the Municipal Council to the proposals in regard to fixing or altering the number, designations and grades of officers made at the instance of the Commissioner. Sub-section (3) of S. 70 enables the Government to fix or alter the number, designations, grades, salaries, fees or allowances payable to the officers and servants of any Municipal Council or any class of such officers and servants. So too, S. 71 enables the Municipality to sanction the appointment of a Secretary in any municipality, which is neither included in Schedule IX nor notified under sub-s. (1) of S. 12-C. Section 72 enables the Municipality to appoint a Health Officer, Engineer, Electrical Engineer or Assistant Electrical Engineer. Section 73 prescribes for the mode of appointing officers other than those mentioned in Ss. 12-C and 72. Section 75 confers a power on the executive authority to punish municipal officers or servants. Section 76-A enables the Government to appoint a health officer, engineer, or electrical engineer in the case of a municipality or class of municipalities. Section 77 enables the Government to place any officer of the State Government at the disposal of the Council to be employed by it for the purpose of the Act.
14. From the aforesaid provisions, it is clear that the administration of the Municipal Council is vested in the executive authority subject to certain powers conferred on the Municipal Council and the officers appointed in the Municipality are made subordinate to him. Even officers appointed by the Government are under his supervision and control. The scheme of the Act, therefore, is that there should be three municipal authorities and all other officers appointed by the Government, the Municipality or the Committee of the Municipality would be under the control of the Commissioner. It is, therefore, contended that the Government has no power to make a rule providing for the appointment of another authority to replace the executive authority completely or to some extent and that the rule authorising the appointment of Valuation Officers with an independent status only directly responsible to the Government but not under the control of the Commissioner and entrusting them with powers of assessment of property tax in respect of specified municipalities and to that extent replacing the Commissioner is invalid. This argument has considerable force. But, in our view, it ignores the effect of S. 124 of the Act. Under S. 124, the rules and tables embodied in Schedule IV shall be read as part of Chapter VI. If so, it follows that the rules validly made under the Act must be deemed to be part of Chapter VI. Section 305 confers power on the Government to amend the rules of Schedule IV with the approval of the two Houses and the rules so amended should be read as part of Chapter VI. If they are so read, the Act itself should be deemed to have conferred power upon the Government to appoint Valuation Officers to perform the functions allocated to them under the rules. Suppose under Chapter VI there is a section authorising Government to appoint a Valuation Officer in respect of specified municipalities to discharge particular functions independently of the Commissioner, it cannot be suggested that the appointment of such an officer to a particular municipality is ultra vires of the powers of the Government. If so, as we have held that the rules of Schedule IV have been validly amended by the Government and they must be deemed to be part of the provisions of Chapter VI, the same result should flow, namely, that the Government has power to appoint a Valuation Officer to discharge specified functions without making him subordinate to the executive authority or other authorities mentioned in S. 6 (1) of the Act. In this view, it must be held that the appointment by the Government of Valuation Officers to the Vijayawada Municipality for the purpose of revising property tax assessment was valid.
15. In the result, the application fails and is dismissed with costs. Advocates fee Rs. 100/-
Application dismissed.