Housing
Board of Havana Vs. Havana Housing Board Employees Union & Ors [1995] INSC 585 (30 October 1995)
Ahmad
Saghir S. (J) Ahmad Saghir S. (J) Kuldip Singh (J) S. Saghir Ahmad, J.
CITATION:
1996 AIR 434 1996 SCC (1) 95 JT 1995 (8) 37 1995 SCALE (6)139
ACT:
HEAD NOTE:
Whether
the Haryana Housing Board is a "Local Authority" within the meaning
of Section 32(iv) of the Payment of Bonus Act, 1965 is the question to be
decided in these appeals. If it is held that it is a "Local
Authority", this Act, namely, the Payment of Bonus Act, would not apply to
its employees, as it is provided in Section 32(iv) that it would not apply to
those categories of employees (including the employees of the "Local
Authority") enumerated, specified and categorised therein.
"Local
Authority" has not been defined in the Payment Bonus Act, 1965 but it has
been defined in Section 3(31) of the General Clauses Act, 1897 as under "
'Local authority' shall mean a municipal committee, district board body of port
commissioners or other authority legally entitled to, or entrusted by the
Government of a municipal or local fund." Incidentally, "Local
authority" has also been defined in Section 2(J) of the Haryana Housing
Board Act, 1971 as under:
"(J)
'Local authority' means a municipality constituted under the Punjab Municipal
Act, 1911 (Punjab Act 3 of 1911), or a Gram Panchayat constituted under the
Punjab Gram Panchayat Act, 1952 (Punjab Act 4 of 1953), or a Panchayat Samity
or a Zilla Parishad constituted under the Punjab Panchayat Samities and Zilla Parishad
Act, 1961 (Punjab Act 3 of 1961), or an Improvement Trust Improvement under the
Punjab Act 4 of 1922)." Both the definitions are conclusive in nature and
only those bodies including the Municipal Board or a Gram Panchayat etc. Will
be treated as "Local authority" as are mentioned therein. But there
is a significant difference in as much as the words "Authority legally
entitled to or entrusted by the Government with, the control or management of a
Municipal or Local Fund" which are found in the definition contained in
the General Clauses Act are not found in the definition of "Local
Authority" in the Haryana Housing Board Act, 1971.
Concept
of "Local Authority" is also found contained in Entry 5, List II of
the Seventh Schedule of the Constitution which provided as under:
"5.
Local Government, that is to say, the constitution and powers of municipal
corporations, improvement trusts, district boards, mining settlement
authorities and other local authorities for the purpose of local self-government
or village administration." The Entry empowers the State Legislature to
make law with respect to any subject relating to Local Government including the
constitution of "Local Authorities". The State Legislature can also
confer such powers as it itself possesses upon a "Local Authority",
including the power of taxation (within the limits of List II) for the purposes
of Local Self Government. The "Local Authority", undoubtedly, is a
representative body but notwithstanding its representative character, it
remains a sub-ordinate Authority created by a statute and, therefore, it cannot
claim the power of taxation which belong to the State Legislature except to the
extent it is conferred upon it by the statute which creates it.
The
Municipal Committees, the District Boards, Gram Panchayats and Panchayat Samitis
etc. represent the units of Local Self Government where people of a local area
govern themselves through their elected representatives in respect of a large
number of matters including construction of buildings, roads, parks, lighting
of streets, sewerage, conservancy and water works etc. These Local Self
Governments, namely, the Municipal Boards and the District Board etc. are
constituted under statutory provisions which elaborately provide who, on being
elected, become members of the Municipal Boards or the District Board. These
Boards are basically independents bodies with very little or minimal of
Government control and that too in the limited field. They formulate their own
policies and implement those policies through the machinery provided under law.
They have power to levy Panchayat, municipal or other local taxes and have also
the power to realise those taxes through coercive processes, if they are not
paid immediately on demand. They have also the right to raise, built up and
manage their "local funds".
Under
the basic principle of statutory interpretation, the words "Other
Authority", having been placed in the company of "Municipal
Council" and "District Boards" etc. in the definition of
"Local Authority" in the General Clauses Act can be interpreted to
mean a "Body" having and possessing, practically all the attributes
of a Municipal Board or the District Board so far as their independent
existence is concerened.
Similarly,
in the definition of "Local Authority" in the Haryana Housing Board
Act, 1971, it has been provided that it shall mean the Municipality, Gram Panchayats,
Panchayat Samitis, Zila Parishads and Improvement Trusts.
It
hardly requires to be mentioned that the Municipal Board, the Gram Panchayat or
a Panchayat Samiti or a Zilla Parishad, or for that matter, Improvement Trust,
referred to in this definition are, at least, partially, if not wholly, elected
bodies.
In
Municipal Corporation of Delhi v. Birla Cotton Spinning and
Weaving Mills, Delhi and Anr. (1968 (3) S.C.R.251), Hidayatullah,J.
(as he then was ) observed as under:
"Local
bodies are subordinate branches of governmental activity. They are democratic
institutions managed by the representatives of the people. They function for
public purposes and take away a part of the government affairs in local areas.
They are political sub- divisions and agencies which exercise a part of state
functions. As they are intended to carry on local self- government the power of
taxation is a necessary adjunct to their other powers.
They
function under the supervision of the government." In Valjibhai Muljibhai Soney
and Anr. v. The State of Bombay (New Gujarat) and Ors. (1964 (3) S.C.R. 686) the State Trading
Corporation was held not to be a local authority within the meaning of Section
3(31) of the General Clauses Act.
The
aforesaid two cases came to be considered by this Court in Union of India and
Ors. v. R.C. Jain and Ors. (1981) (2) S.C.R. 854) in which the question whether
the Development Authority created under the Delhi Development Act, 1957 was a
"local authority" within the meaning of Section 32(iv) of the Payment
of Bonus Act or not, was involved and on a consideration of all the attributes
of the Delhi Development Authority, it was held to be a "local
authority". This Court speaking through O. Chinnappa Reddy, J. observed as
under:
"What
then are the distinctive attributes and characteristics, all or many of which a
Municipal Commissioners shares with any other local authority? First, the
authorities must have separate legal existence as corporate bodies. They must
not be mere governmental agencies but must be legally independant entities.
Next, they must ordinarily, wholly or partly, directly or indirectly, be
elected by the inhabitants of the area. Next, they must enjoy a certain degree
of autonomy, with freedom to decide for themselves questions of policy
affecting the area administered by them. The degree of the dependents may vary
considerably but, an appreciable measure of autonomy there must be. Next, they
must be entrusted by statute with such governmental functions and duties as are
usually entrusted by statute with such governmental functions and duties as are
usually entrusted to municipal bodies, such as those connected with providing
amenities to the inhabitants of the locality, like health and education
services, water and sewerage, town planning and development, roads, markets,
transportation, social welfare services etc.etc. Broadly, we may say that they
may be entrusted with the performance of civic duties and functions which would
otherwise be governmental duties and functions.
Finally,
they must have the power to raise funds for the furtherance of their activites
and the fulfilment of their projects by levying taxes, rates, charges, or fees.
This may be in addition to monies provided by government or obtained by
borrowing or otherwise. What is essential is that control or management of the
fund must vest in the authority." Since this decision will equally apply
to the definition of "Local Authority" set out in the Haryana Housing
Board Act, 1971 as that definition is substantially similar to the definition
of "Local Authority" in the General Clauses Act, it is in the light
of the above principals that it has to be seen whether the Haryana Housing
Board answers the attributes specified above so as to be treated a "local
authority" within the meaning of Section 32(iv) of the Payment of Bonus
Act.
The Haryana
Housing Board Act, 1971 in its preamble states that it is "an Act to
provide for measures to be taken to deal with and satisfy the need of housing
accommodation." The Statement of "Objects and Reasons" set out
at the time of introduction of the Bill in the Legislative Assembly indicate,
inter alia, as under:
"Next
to food and clothing housing is the basic necessity of mankind. The housing
problem has become serious on account of the phenomenal increase in population.
Repid industrialisation has led to the congestions in urban areas.
The
concentration of almost all industries in urban areas and the comparative high
wages paid to the factory workers coupled with the lack of sufficient
opportunities in the rural areas have resulted in a large scale shift of
population from villages..........
With a
view to achieve the aforesaid object the matter was considered in the
conference of Ministers for Housing, Urban Development and Town Planning held
at a Bangalore from 19th to 20th June, 1969. The consensus of opinion was that
the statutory State Housing Boards are the best agencies for tentative and
speedy implementation of the housing programmes. Accordingly, it is proposed to
constitute a Haryana State Housing Board. Hence the Haryana Housing Board Bill,
1971." The Haryana Housing Board (for Short, 'the Board' has been
established and constituted under Section 3 of the Act which, inter alia,
provides that the Board shall be a body corporate having perpetual succession
and a common seal and shall have the power to acquire, hold, administer and
transfer property, movable or immovable, and to enter into contracts.
Sub-section
(4) of Section 3 provided that the Board shall consist of a Chairman, a Chief
Administrator and such other Members, not more that 12 and not less that 6, as
the State Government may, from time to time, by Notification appoint. Unider
Section 5 of the Act, the State Government has the power to grant such leave to
the Chairman and the Chief Administrator as may be admissible to them under the
Rules made under the Act.
Section
7 provides that every Member of the Board shall hold office for a period of
three years from the date of his appointment and shall be paid such salary and
allowances as may be prescribed. Conditions of service are also required to be
prescribed by Rules made under the Act. It is also provided in this Section
that on the expiry of the term of 3 years, a Member shall be eligible for
re-appointment.
Section
7-A indicates that the Chairman, Chief Administrator and other Members of the
Boards shall hold office during the pleasure of the State Government.
Section
14 provides for the appointment of one or more committees for any particular
local area for purpose of discharging such duties or performing such functions
of the Board as may be delegated to them with due regard to the circumstances
and requirements of that area.
Chapter
III of the Act deals with the Housing Schemes.
Section
20 provides as under:
"20.
Duty of Board to undertake housing schemes.-- Subject to the provisions of this
Act and subject to the control of the State Government, the Board may incur
expenditure and undertake works in any area for the framing and execution of
such housing schemes as it may consider necessary from time to time or as may
be entrusted to it by the State Government." The exercise of power by the
Board in framing and executing Housing Schemes is not only subject to the
provisions of the Act but also subject to the control of the State Government.
The
matters which may be provided for in a Housing Scheme are indicated in Section
21 which include laying or re-laying of the land, construction and
re-construction of buildings, construction and alteration of streets and back
lanes, drainage, water supply and lighting of the area included in the Scheme,
Parks, playing fields' sanitary arrangements etc.
The
accounts of the Board are to be audited by such persons as are deputed by the
Government (See sub-section (2) of Section 61) and the Board does not seem to
have any choice in the matter except to submit its accounts to that person. The
Board has also to comply with such directions as may be issued to it by the
State Government after a perusal of the auditor's report. Special audit may
also be made of the Board's accounts under the directions of the State
Government.
Other
statutory provisions indicating control of the State Government over the Board
are contained in Sections 71 and 72 of the Act relevant portions of which are
re-produced below:
"71.
Power of government to give direction to Board.-- The State Government may give
the Board such directions as in its opinion are necessary to expedient for
carrying out the purposes of this Act, after giving an opportunity to the Board
to state its objections, if any, to such directions and after considering the
said objections and it shall be the duty of the Board to comply with such
directions.
72.
Control of State Government over Board. (1) The State Government shall due
regard to the circumstances and requirements of that area.
Chapter
III of the Act deals with the Housing Schemes.
Section
20 provides as under:
"20.
Duty of Board to undertake housing schemes.-- Subject to the provisions of this
State Government, the Board may incur expenditure and undertake works in any
area for the framing and execution of such housing schemes as it may consider
necessary from time to time or as may be entrusted to it by the State
Government." The matters which may be provided for in a Housing Scheme are
indicated in Section 21 which include laying or re-laying of the land,
construction and re-construction of buildings, construction and alteration of
streets and back lanes, drainage, water supply and lighting of the area
included in the Scheme, Parks, playing fields, sanitary arrangements etc.
The
accounts of the Board are to be audited by such persons as are deputed by the
Government (See sub-section (2) of Section 61) and the Board does not seem to
have any choice in the matter except to submit its accounts to that person. The
Board has also to comply with such directions as my be issued to it by the
State Government after a perusal of the auditor's report. Special audit may
also be made of the Board's accounts under the directions of the State
Government.
Other
statutory provisions indicating control of the State Government over the Board
are contained in Sections 71 and 72 of the Act relevant portions of which are
re-produced below:
"71.
Power of government to give direction to Board.-- The State Government may give
the Board such directions as in its opinion are necessary to expedient for
carrying out the purposes of this Act, after giving an opportunity to the Board
to state its objections, if any to such directions and after considering the
said objections and it shall be the duty of the Board to comply with such
directions.
72.
Control of State Government over Board. (1) The State Government shall exercise
superintendence and control over the Board and its officers and may cail for
such information as it may deem necessary and, in the event of its being
satisfied that they Board is not functioning properly and is abusing its powers
and is guilty of corruption of mismanagement, it may, by notification, suspend
the Board:
Provided
that the Board shall be reconstituted, within a period of one year from the
date of its suspension, in the prescribed manner.
(2)
When the Board is suspended under sub-section (1), the following consequences
shall ensue, namely:- (a) ......................
(b)
......................
Chapter
IV deals with the acquisition and disposal of land. Chapter VII deals with the
Board's finance, accounts and audit. Section 56 provides that the Board shall
have a fund called the Housing Board Fund which shall consist of all moneys
received by or behalf of the Board as also all proceeds of land or any other
kind of property sold by the Board, including all rents, interest, profits and
other moneys accruing to the Board which has also been authorised by
sub-section (2) to accept grants, donations and gifts from the Central
Government or the State Government or a local authority or any individual or
body, whether incorporated or not, for all or any of the purposes of this Act.
Section
72A provides for appeals against orders passed by the officers of the Board or
the Chairman. Section 72B which provides for a revision to the State Government
lays dow as under:
"72B.
Revision.-- The Government may either suo motu or on an application of a party,
call for and examine the record of any proceedings or decision or order passed
by the Board, Chairman, Chief Administrator or competent authority or Deputy
Commissioner or any other officer appointed by the State Government for the
purpose of satisfying itself as to the legality or properiety of any case it
shall appear to the government that any such decision or order passed and if in
any case it shall appear to the government that any such decision or order
should be modified, annulled or revised, the Government may, after giving the
persons affected thereby an opportunity of being heard, pass such order thereon
as it may deem fit." The above provisions clearly spell out that the Board
which is basically and essentially a creation of the Act of State Legislature
consists of persons appointed by the State Government on salary basis. The
Board's personnel are not elected by the people and there is no element of
people's choice being represented in any manner in the constitution of the
Board. The Board functions strictly under the supervision and control of the
State Government and does not hold or possess a "local fund". What
constitutes the fund of the Board has already been specified above.
These
functions as are indicated in a Housing Scheme are essentially performed by
Municipal Boards or Municipal Council which, undoubtedly, are "Local
Authorities" but on that analogy the Haryana Housing Board cannot be treated
to be a "local authority" as the extent of control of the State
Government under which the Board has to function is so prominently pervasive
that it is almost destructive of its independence which will also be apparent
from the fact that in the matter of settlement of its Annual Programmes, Budget
and Establishment schedule, the Board has to obtain the sanction of the State
Government under Section 24 of the Act. The supplementary budget and programme,
if any, has also to be sanctioned by the State Government.
We
need not refer to other provisions as the provisions already referred to above
are sufficient to bring home the point that Haryana Housing Board does not have
even the semblance of independence which are normally possessed by local self
Governments, like Municipal Boards or District Boards etc. The Board also does
not even partially consist of elected representatives of the people.
The
Board, no doubt, has the power to levy and realise Betterment Charges (See
Section 40 to Section 43 of the Act) and various amount of money due from presons
in possession of the properties of the Boards by way of rent etc. are
recoverable as arrears of land revenue but that by itself is not sufficient to
clothe the Board with the status of a "local authority".
It is
contended by the learned counsel for the appellant that since it has already
been provided in sub- section (3) of Section 3 of the Haryana Housing Board
Act, 1971 that for purposes of this Act, namely, the Haryana Housing Board
shall be deemed to be a "Local Authority", it cannot but be treated
to be a "Local Authority" with the consequence that it is not liable
to pay bonus to its employees as it would squarely fall within the exceptions
set out in Section 32(iv) of the Payment of Bonus Act. We do not agree.
Sub-section
(3) of Section 3 provides as under:
"(3)
For the purposes of this Act and the Land Acquisition Act, 1894, the Board
shall be deemed to be a local authority.
Explanation-
The purpose of this Act referred to in sub-section (3) include the management
and use of lands and building belonging to or vesting in the Board under or for
the purposes of this Act ant the exercise of its rights over and with respect
to such lands and buildings for the purposes of this Act." It will be seen
that the Legislature itself has given the Board limited status of "Local
Authority only for the purpose of Land Acquisition Act as also the parent Act,
namely, the Haryana Housing Board Act, 1971, under which the Board has been
constituted and established. The Legislature has given this status only
fictionally as the Board, in reality, is not a "Local Authority" and
that too only for a limited purposes. The Legislature could well have given
this status to the Board for purpose of other Acts also including the Payment
of Bonus Act but this has not done and consequently the Board cannot, specially
in view of what has been stated above, be treated as "local
authority", under the Payment of Bonus Act.
There
does not, therefore, appear to be any reason to differ from the view expressed
by the learned Single Judge or by the Division Bench (in appeal ) of the Punjab
and Haryana High Court that the Board is not a "local authority" as
it does not possess the attributes indicated by this court in the case of R.C.
Jain (supra).
Learned
counsel for the appellant referred to the decision of this court in Surya Kant
Roy v. Imamul Hak Khan (1975 (1) S.C.C. 531) wherein it was found that :
"Mines
Board of Health constituted under the Bihar
and Orissa Mining Settlement Act, 1920 is a body corporate having perpetual
succession and a common seal with power to hold and acquire property.
It
consists of not less than seven and not more than eleven members of whom not
less than two and not more than four are elected by owners of mines within the
Mining Settlement, three non-officials selected by the State Government and two
or more members but not exceeding four nominated of the State Government. The
Chairman of the Board is to be appointed by the State Government from among the
members of the Board. A fund called 'The Mining Settlment Funds' is formed for
every mining settlement and the fund vests in the Board. The fund consists of
sums charged by the Board under the Act from land-owners, etc. as also sums
allotted to the Board from the State Revenuse; sums borrowed by the Board under
the Local Authorities Loans Act;
Grants
received from local authorities, associations and private persons, etc.
The
Board appoints Health officers as well as Sanitary Inspectors. The Board can
impose taxes like Latrine taxes and also make yearly assessment. There are
certain powers conferred on the State Government under the Act but they are no
more that the power conferred on State Government's in respect of various local
bodies. The respondent was appointed by the Government as the Chairman of the Jharia
Mines Board of Health. We agree with the learned Judge of the High Court that
it is difficult to accept the argument that the Board is wholly under the
control of the State Government in all its functions. The Board levies taxes
and other assessments and has got its own funds. The fact that the Government
and other local authorities might make grants to the Board does are Government
funds or Government properties. The provisions we have set out above are enough
to establish that the Board is a 'local authority' within the meaning of that
expression as defined in clause (31) of Section 3 of General Clauses Act,
1897." It will be relevant to point out the further observations of the Supereme Court as under:
"Indeed,
this position does not seem to have been disputed by the petitioner before the
High Court in the course of his arguments. We do not, therefore, think that the
mere fact that the respondent was appointed as Chairman of the Board by the
government would make him a person holding an office under the State
Government." Thus, the decision that the Mines Board was a local authority
was not disputed. In any case, this Court, on the basis of relevant statutory
provisions specially that the Board has power to levy taxes and other
assessments and has got its own fund, found it to be a local authority. It may
be pointed out that the decision was rendered not in connection with the
provision of Payment of Bonus Act but under provisions of the Representation of
people Act to find out whether an office of profit under the State Government
was held by the respondent.
Learned
counsel for the appellant then cited Kendriya Nagrik Samiti, Kanpur and other
vs. Jal Sansthan, Kanpur and others (AIR 1982 Allahabad 406) in which it was
held that Jal Sansthan constituted by the State Government under the U.P. Water
Supply and Sewerage Act, 43 of 1975 was a "Local Authority",
although, the Court had also found it to be an instrumentality of the State
Government. The High Court noticed that Jal Sansthan as defined in Section 2(9)
of the Act meant "a Local Authority constituted by the State Government
under Section 18 to perform its functions under the Act in one or more local
areas" and on account of this definition, the High Court, after referring
to the definition of the "Local Authority" in Section 4(25) of the
U.P. General Clauses Act, held that Jal Sansthan was a "Local
Authority" which was to be treated at par with Municipal Corporation etc.
for the purposes of Local Self- Government. It may be pointed out that under
Section 18 of the Act, Jal Sansthan consists of, amongst others, three Sabhasads
of the Nagar Mahapalika nominated by the State Government. Sabhasads, under the
U.P. Nagar Mahapalika Abhihiyam, Municipal Corporation.
Learned
counsel for the appellant also relied upon the decision of Mahavir and others
vs. State of u.p. and others AIR 1979 Allahabad 3 in which Mandi Samiti
constituted under the U.P. Krishi Utpadan Mandi Adhiniyam was held to be a
Local Authority for purposes of Land Acquisition Act.
Significantly,
Section 12(2) of the Adhiniyam contains a deeming provision that "the
Committee shall Acquisition Act, 1894 and any other law for the time being in
force".
(Emphasis
supplied). This case is, therefore, clearly distinguishable.
Our
attention was next drawn to the decision of the Mysore High Court in Workmen of
Mangalore Port Trust vs. Management of the Mangalore Port and Ors. (1973 Lab. I.C. 1536) in
which Board of Trustees of the Port of Mangalore was held to be a "Local
Authority" within the meaning of Section 32(iv) of the Payment of Bonus
Act. The Judges of the Mysore High Court relied upon the definition of
"Local Authority" contained in Section 3(31) of the General Clause
Act in which the Municipal Committee, District Board and a Body of Port
Commissioners are indicated to be Local Authorities and then they observed that
there was no difference between the Body of Port Commissioners and the Board of
Trustees of the Port of Mangalore and, therefore, the letter has also to be
treated as the "Local Authority".
They
also relied upon the decision of the Madras High Court in Official Assignee of
Madras vs. Trustees of the Port of Trust, Madras (AIR 1936 Madras 789) in which
the Trustees of the Port Trust, Madras, on account of the definition of
"Local Authority". A decision of the Calcutta High Court in Manoranjan
Das vs. Commissioner Presidency Division (AIR 1970 Calcutta 179) which was
cited before us also by the learned counsel for the appellant, was considered
by the Mysore High Court and it was noticed by them that the Calcutta High
Court held that since the Calcutta Dock Labour Board had to control and manage
its fund which a local fund, it was a "Local Authority" within the
meaning of the General Clauses Act. This decision is, therefore, of no help to
the appellant as the concept regarding control and management a "Local
Fund" is outside the scope of the definition of "Local
Authority" in the Haryana Housing Board Act, 1971.
A
decision of the Andhra Pradesh High Court in Budha Veerinaidu vs. State of Andhra Pradesh and Anr. (143 ITR 1021) has been
cited to indicate that Agricultural Market Committee functioning under the (Andra
Pradesh Agricultural Produce and Live Stock) Markets Act,1966 was held to be a
"Local Authority" as it was found that the Market Committee was
entrusted by the Government with the control and management of "Local
Fund". This decision is also distinguishable on the ground that definition
of Local Authority in the Haryana Housing Board Act, 1971 does not refer to
entrustment, control or management of "Local Fund".
In 12,
I.C. Bose Road Tenants' Association vs. Collector
of Howrah and Ors. (AIR 1977 Calcutta 437)
which was next cited before us, it was not disputed that Calcutta Metropolitan Development Authority
was a "Local Authority" within the meaning of Section 3(3) of the
General Clauses Act.
All
the aforesaid decisions of Various High Court, therefore, do not help counsel
for the appellant as all of them are clearly distinguishable. Moreover, the
decision of this Court in Union of India and Ors. vs. R.C. Jain and Anr. (1981
(2) SCR 854) which has already been referred to above by us was not referred to
in any of these decisions as those decisions were rendered prior to the decision
of this Court except the Allahabad decision in Kandriya Nagrik Samiti, Kanpur
(supra) in which also this decision was not noticed.
R.C.
Jain's case (supra) was, however, noticed by the Bombay High Court in Krishi Utpanna
Bazar Samiti vs. Income Tax Officer and Others (158 ITR 742) in which the Hon'ble
Judges after considering the scheme of the Maharashtra Agricultural Produce
Marketing (Regulation) Act, 1963 and after scrutinizing the tests laid down by
this Court in R.C. Jain's case observed as under:
"The
Market Committee clearly satisfies all these tests. It is a body corporate
having separate legal existence and autonomous. It is independent of the
Government and operates in a defined area. Its office-bearers are elected and
are free to take their own policy decision. It performs governmental functions
such as running market, providing civil amenities and doing civil duties. It
also performs judicial, legislative, executive and fiscal functions."
Learned counsel for the appellant lastly contended that the Haryana Housing
Board being an instrumentality of the Government or, in any case, being a
statutory body is an "Authority" within the meaning of Article 12 of
the Constitution and since Local Authorities have also been referred to in
article 12, the Board Should also be treated as a Local Authority. The argument
is fallacious.
Article
12 provides as under:
"12.
Definition. -- In this part, unless the context otherwise requires, 'the State'
includes the Government and State' included the Government and Parliament of
India and the Government and the Legislature of each of the States and all
local or other authorities within the territory of India or under the control
of the Government of India." This Article contains the definition of
"State" which is an inclusive definition and includes Government and
Parliament of India, Government and the Legislature of each of the State as
also all local or other Authorities. Article 12 does not define "Local
Authority" but defines "State".
The
attempt of the learned counsel for the appellant in to invoke the rule of ejusdem
generis which cannot be permitted.
When
particular words pertaining to a class of genus are followed by general words,
the latter, namely, the general words are construed as limited to things of the
same kind as those specified (See: Kavalappara Kottarathil Kochuni vs. State of
Madras, AIR 1960 SC 1080; Thakur Amarasinghji vs. State of Rajasthan, AIR 1955
SC 504). This is known as the rule of ejusdem generis reflecting an attempt to
reconcile incompatibility between the specific and general words (Tribhuwan Parkash
Nayyar vs. Union of India, AIR 1970 SC 540).
This
Court in Amar Chandra vs. Collector of Excise, Tripura, AIR 1972 SC 1863 laid
down that the rule applies when
"(1)
the statute contains an enumeration of specific words;
(2) the
subjects of enumeration constitute a class or category;
(3) that
class or category is not exhausted by the enumeration;
(4) the
general terms follow the enumeration; and
(5) there
is no indication of a different legislative intent".
Thus,
it is essential for application of the ejusdem generis rule that enumerated
things before the general words must constitute a category or a genus. It was,
therefore, pointed out by Lord Simonds in Russel vs. Scott (1948 2 AII.E.R. 1
(HL)) that "indeed if a collection of items is heterogeneous, it almost
seems a conflict in words to say that they belong to the same genus".
While
interpreting the definitions of "Local Authority" contained in the
aforesaid two Acts, namely, the General Clauses Act and the Haryana Housing
Board Act, 1971, we invoked the rule of ejusdem generis but this rule cannot be
applied to article 12 as the definition of "State" in this Article
includes several bodies which are heterogeneous in character and, there is no
genus in the definition.
For
the reasons stated above, we find no merit in these appeals which are hereby
dismissed but without any order as to costs.
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