SHRI RADESHYAM KHARE & ANOTHER versus THE STATE OF MADHYA PRADESH & OTHERS

Citation: [1959] 1 S.C.R. 1440 · Decided: 30-09-1958 · Supreme Court of India · Bench: SUDHI RANJAN DAS · Disposal: Dismissed

Judgment (excerpt)

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Ghaio 
/!fall 6- So11s 
v. 
1'he Sltde of 
Delhi ~ Others 
D,.sC.j. 
Seplembt:r 30. 
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1440 
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STJPREME COUB.T RE;PORTS • • [1959] 
business by :Messrs. Army a,.11d '.Ila vy St-0~e:o still remains 
unfilled. The applications of the appellants and other 
applicants were for a grant of L-2 license for 1954/ 
1955. That year has gone ptist and accordingly in the 
changed eircumstances wo direct. the Chief Commis-
sioner ~o fill ap the vacancy ctrnsed by the closure of 
the business by ?.fossrs. Army and Xavy Stores by 
inviting applications from intending licensees including 
the appellitnts and Messrs. Gainda Mall Hem ltaj and 
granting the oame to the most suitable party .• We, 
therefore, accept this appP1~l, reverse the order of the 
High Court and issue a mandamus to the effect afore-
said and also direct the respondents Xos. l to 4 lo pay 
the appellant.s' costs of this appeal and of the proceed. 
ings int.he High Court out of which this appeal ha~ 
arisen. Messrs. Gainda '.\Iall Hem Raj arc to hear 
their own costs throughout. 
Appeal allowed . 
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SHRI RADESH1A'.ll 'KHARE & ANOTHER•• 
v. 
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THE STATE OF !llADHYA PHADESH & OTHEHS 
(S. H. DAS c. J., BHAGWATI, s. K. DAS, ,J. L. KAPUR 
and 81.'BBA RAo ,JJ.) 
Municipality -- Appoi11tmmt of Excwtivc OJJiccr •by State 
Go·,:crnmcnt--lf an adtninistrafi;,·c act-C. J>. and Berar i'funicipali-
ties Act, 1922 (Act I I of 1922). ss. 53A and 57. 
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The n1ain point for clt~ci:;ion in this appeal by the lttunicipal 
Comn1ittcc of Dhamtari and its Prcsi<lcnt \\·as, \\·hcther in appoint-
ing an Executive Officer in exercise of its po,,·ers under s. 53A of 
the C. P. and Bei;ar }!unicipalities Ac$, 1922, the State Go\'crn-
1nr.nt acted iii a judicial capacity or in an 
administra~ve one . 
Complai.tng been made against the appellants, the a<ldi-
tiona~ 
ollcctor \Vas directed to hold an enquiry and on 
his •r~pOrt the State Go,·crnn1i;nt, by a notilicatiou un<lcr that 
secti~n. apppin(cd all' Executive Officer of the Municipal Com-
mittee for !8 Tnonth;> ,,·ith specified po\l,·crs and duJies. 
The 
·~ppellants were gi\'en notice of the said enqlliry, filed objections 
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S.C.R .• .SUPREfy[E copRT REPOR'CS 
1441 
and the Presiq,ent was pe•sonally present on some occasions 
during the enquiry. The notific"ation charged the appellants 
with incompetency as well as abnse of power. Against that Shri Radeshyam 
notification the appellants moved tne High Court under Art. 226 Khare & Another 
of the Constitution for a writ of certiorari quashing the same, 
v. 
but their application was rejected by the Judge sitting singly. 
The State of 
An appeal under the Letters Patent against his deci'j,iOn was Madhya Pradesh 
summarily dismissed. It was contended before this Court on 
& Others 
behalf of the appellants that, (1) although the notification pur-
ported to be one under s. 53A of the Act, it was in effect and 
reality one under s. 57 of the Act, that (2) it was, therefore, in-
cumbent on the Government under s. 57(5) of the Act to afford 
the appellants an opportunity to furnish explanation and that 
(3) even if the notification was one under s. 53A of the Act, the 
Government was bound by the rules of natural justice to give 
the appellants an opportunity to defend themselves. 
Held (per curiam), that ss. 53A and 57 of the C. P. and 
llerar Municipalities Act, 1922, differed materially in their scope 
and effect, but it was not obligatory under either of them for the 
Government to take any action at all. Although a finding of 
incompetency of the Municipal Committee was a condition pre-
cedent to action under both the sections, the Government was 
free to choose its remedy as the occasion demanded and it could 
.not be conteri<ied that because a notification made under s. 53A 
of the Act, along with a finding of incompetency, contained some 
instances of abuse of power"as well, it must be held to have been 
made u01der s. 57 of the Act. 
• • Nor could the vesting of power in the Executive Officer by 
<t:he notification, however substantial in character, be said, in 
effect and reality, to amount to a dissolution of the Municipal 
Committee under s. 57 of the Act. 
Per Das C.J. and Kapur ].-The real test whether the 
State Government functioned in a quasi-judicial capacity or in an 
administrative capacity in exercising its powers under s. ·53A of 
the Act was whether the sta

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