Mr. Ansh Prasad, Adv. Mr. Ajay (GA v. Allahabad Bank reported in (1996) 3 SCC & Ors.

Judgment

#6. Versus The State of Bihar through the Principal Secretary, Minor Irrigation Depart- ment, Government of Bihar, Patna. The Engineer-In-Chief, Minor Irrigation Department, Government of Bihar, Patna. The Chief Engineer, Minor Irrigation Department, Government of Bihar, Patna. The In-Charge Chief Engineer (Planning, Monitoring and Geology), Minor Irrigation Department, Government of Bihar, Patna. The Superintending Engineer, (Planning, Monitoring and Geology), Minor Irrigation Department, Government of Bihar, Patna. The Executive Engineer, Minor Irrigation Department, Government of Bi- har, Nalanda, Bihar. ... ... Respondent/s ====================================================== Appearance : For the Petitioner/s Mr. Chandan Kumar, Adv. Mr. Prabhat Ranjan, Adv. : For the Respondent/s :

Mr. Ansh Prasad, Adv. Mr. Ajay (GA 5) Mr. Pratik Kumar Sinha, AC to GA5 ====================================================== CORAM: HONOURABLE MR. JUSTICE P. B. BAJANTHRI HONOURABLE MR. JUSTICE ARUN KUMAR JHA ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE P. B. BAJANTHRI) Date : 28-08-2023 In the instant petition, petitioner has prayed for the fol- lowing reliefs:- "(i) For quashing of the Notice to Show Cause dated 24.02.2023, contained in Letter No. 123 (Annexure 1) issued by the In- Patna High Court CWJC No.9769 of 2023 dt.28-08-2023 charge Chief Engineer, (Planning, Monitor- ing & Geology), Minor Irrigation Depart- nemtn, Government of Bihar, Patna whereby, for the allegation of use of fake experience Certificate in connection with the Tender process arising out of NIT No. 02/2021-22 Group No. 06 (Renovation of Meyar Aahar – Pyne Scheme work), the Petitioner has been asked to Show Cause within one week as to why the Registration may not be put under blacklist in terms of Bihar Contractors Reg- istration Rule, 2007; (ii) Direction upon the Respon- dents to stay the operation of the impugned Notice to Show Cause dated 24.02.2023 con- tained in Letter No. 123 (Annexure 1) during the pendency of the present writ application; (iii) Declaration to the effect that the mere issuance of the Notice to Show Cause dated 24.02.2023 contained in Letter No. 123 (Annexure 1) cannot be a ground to disqualified and hold the Technical Bid of the Petitioner as non responsive."

#2. Petitioner has assailed the issuance of show cause no- tice dated 24.02.2023 of black listing for a period of ten years pur- suant to NIT read with allotted work NIT 02/2021-22 Group No. 06 (Renovation of Meyar Aahar – Pyne Scheme work).

#3. Petitioner has questioned the validity of show cause notice as well as black listing on the score that In-charge Chief-En- gineer has passed the order and he is not the competent authority. Competent Authority is Chief Engineer in the light of Rule 4(b) of Bihar Contractors Registration Rules, 2007 (for short 'Rules, Patna High Court CWJC No.9769 of 2023 dt.28-08-2023 2007') read with Notification dated 28.12.2018 to the extent that Chief-Engineer is empowered to take action under Rules, 2007. It is submitted that when statute like Rules, 2007 nominate or autho- rise particular designated officer for taking action and also for ex- ercising powers and functions under Rules, 2007, in such an event, such authority alone is empowered to take action under Rules, 2007 whereas in the present case Superintending Engineer who is In-charge Chief Engineer in terms of Annexure -C has ex- ercised the power in terms of Rule 4(b) of Rules, 2007 read with the Government Order dated 28.12.2018. It is further submitted that In-charge Officer cannot exercise statutory power unless and until regular holder of the post of Chief Engineer is empowered to sub-delegate his power. Even from reading of Rules, 2007 read with Government Notification dated 28.12.2018, it is clear that the powers have not been delegated to the In-charge Chief Engineer.

#4. Per contra, learned counsel for the respondents re- sisted the aforesaid contention and submitted that the regular Chief Engineer's post has not been filled up due to administrative diffi- culties. Therefore, the Superintending Engineer who has been asked to hold the post of Chief Engineer as In-charge Chief Engi- neer has exercised the power with reference to Rules, 2007 read with the Government Notification dated 28.12.2018 and Govern- Patna High Court CWJC No.9769 of 2023 dt.28-08-2023 ment Notification dated 19.11.2023 by which In-charge arrange- ment has been made.

#5. Learned counsel for the respondents submitted that the aforementioned issue is squarely covered by decision of Hon'ble Apex Court in the case of Gopalji Khanna vs. Allahabad Bank & Ors. reported in (1996) 3 SCC 538. Para 7, 8 and 12 reads as under:- "7. With respect to the second contention, it was submitted by the learned counsel that the power of review is conferred by Regulation 18. Only the Chairman and Managing Director are specified as reviewing authorities. This statutory power, therefore, can be exer- cised by the Chairman and Managing Di- rector only as they are the named authori- ties under the statutory provision and cannot be validly delegated to any subor- dinate authority. Shri Wadhwa, therefore, could not have validly exercised that power. There is no substance in this sub- mission. It is really misconceived. Though the Regulations have been framed in exer- cise of the powers conferred by Section 19 of the Banking Companies (Acquisi- tion and Transfer of Undertakings) Act, 1970, by the Board of Directors, they can- not be equated with a statute. What the Board of Directors have done by making those Regulations is to regulate the power of taking disciplinary action against the employees of the Bank. Moreover, this is not a case where the power of Chairman or the Managing Director came to be ex- ercised by a subordinate official as a re- sult of delegation of that power. Shri Wad- hwa while exercising the power of review Patna High Court CWJC No.9769 of 2023 dt.28-08-2023 was really discharging the functions of Chairman and Managing Director as he was then placed in charge of those offices and was therefore entitled to perform all the duties and functions of those offices. He did not exercise that power on the ba- sis that it was delegated to him. There- fore, the decisions in Barnard v. National Dock Labour Board [(1953) 1 All ER 1113 : (1953) 2 WLR 995] , Krishna Ku- mar v. Divisional Asstt. Electrical Engi- neer [(1979) 4 SCC 289 : 1980 SCC (L&S) 1] and Marathwada University v. Seshrao Balwant Rao Chavan [(1989) 3 SCC 132 : 1989 SCC (L&S) 436] , relied upon by the learned counsel in support of his contention that statutory power can be exercised by the named authority only and cannot be further delegated, require no further consideration. So also, Ra- makant Shripad Sinai Advalpalkar v. Union of India [1991 Supp (2) SCC 733 : 1992 SCC (L&S) 115 : (1992) 19 ATC 85] and State of Haryana v. S.M. Sharma [1993 Supp (3) SCC 252 : 1993 SCC (L&S) 1072 : (1993) 25 ATC 594] cited by the learned counsel have no relevance. The question which arose for considera- tion in those cases was whether an officer who substantively holds a lower post and is asked to discharge the duties of a higher post can be considered as pro- moted to that higher post. This Court held that entrustment of current duties charge of a higher post does not amount to pro- motion and in such cases the person con- tinues to hold his substantive lower post and only discharges the duties of higher post essentially as a stopgap arrange- ment.

#8. It was next submitted that when a person is entrusted with charge of current duties of a higher post, he can ex- Patna High Court CWJC No.9769 of 2023 dt.28-08-2023 ercise only those powers and perform those functions which are available to the person holding the higher post under ex- ecutive orders and not those which are conferred by statutory provisions. In sup- port of this submission the learned coun- sel relied upon the decision of this Court in Ajaib Singh v. State of Punjab [(1965) 2 SCR 845 : AIR 1965 SC 1619 : (1965) 2 Cri LJ 553] . In that case what had hap- pened was that the Additional District Magistrate, Amritsar was invested with powers of a District Magistrate under Section 10(2) of the Code of Criminal Procedure, 1898 and was also put in charge of the office of the District Magis- trate Amritsar, who was transferred. No order appointing him as a District Magis- trate under Section 10(1) was passed. While in charge of the office of the Dis- trict Magistrate, he passed an order of detention under the Defence of India Act and Rules, 1962. That order was chal- lenged on the ground that as the Addi- tional District Magistrate was not ap- pointed as District Magistrate under Sec- tion 10(1) he did not have the power to pass a detention order and, therefore, the order passed by him was without any au- thority of law and liable to be set aside. This Court after considering the relevant provisions of the Defence of India Act and Rules, 1962 and the drastic nature of the power and the consequences following from it, observed that the power of deten- tion could only be exercised by the State Government or an officer or authority to whom it was delegated and that the said power could be delegated to an officer or authority who was not lower in rank than the District Magistrate. It was then held that even though the Additional District Magistrate was exercising the powers of the District Magistrate on there being a Patna High Court CWJC No.9769 of 2023 dt.28-08-2023 vacancy in the office of the District Mag- istrate, he was still not the District Mag- istrate as he was not appointed as such under Section 10(1) of the Code and therefore, he had no power to pass the or- der of detention. Even though invested with the powers of a District Magistrate he did not become an officer of the rank of a District Magistrate. In this case we are not concerned with such a provision and therefore are not required to consider whether Executive Director of the Bank when entrusted with the charge of duties of the offices of Chairman and Managing Director became an officer of the rank of Chairman and Managing Director. More- over the power of the employer to take disciplinary action against his employee including the power to review an order of penalty, has to be distinguished from the statutory power to detain a person. Therefore, on the basis of this decision it cannot be held that the Executive Direc- tor who was merely entrusted with the charge of duties of the offices of Chair- man and Managing Director could not have exercised the power of reviewing the order of penalty passed by the disci- plinary authority.

#12. After considering the above decisions and Regulations 2(n) and 18, we are of the opinion that as the Execu- tive Director Shri Wadhwa was entrusted with the charge of the offices of Chairman and Managing Director he became enti- tled to exercise all the executive powers, perform duties and discharge functions attached to those offices and, therefore, the order of penalty passed by him was le- gal and valid."

#6. Heard learned counsels for the respective parties. Patna High Court CWJC No.9769 of 2023 dt.28-08-2023

#7. Core issue involved in the present case is whether In- charge Chief Engineer can exercise power of the Chief-Engineer while invoking statutory provision, in particularly, Rules, 2007 read with Government Notification dated 28.12.2018. The Super- intending Engineer who has been asked to hold In-charge of the post of Chief Engineer could exercise power under Rule 4(b) of Rules, 2007 read with Government Notification dated 28.12.2018 or not?

#8. The cited decision is not assisting the respondents for the reasons that in a number of decisions, Hon'ble Apex Court has held that statutory/quasi judicial function could be exercised by such officer nominated in statutory Rule alone. Further, if there is any delegation of power to such nominated authority he or she can sub-delegate the powers. In the present case, initially the State Government nominated Engineer-in-Chief under rule 4(b). Rule 4(b) reads as under:- "4(b) The Engineer-in-Chief or an officer not below the rank of Chief En- gineer, so notified by the State Govern- ment, shall be the registration officer."

#9. The State Government while invoking Rule 4(b) pro- ceeded to issue Government Order on 28.12.2018 nominating the Chief Engineer. Therefore, the State Government has already in- voked Rule 4(b) to the extent in nominating Chief Engineer. It is Patna High Court CWJC No.9769 of 2023 dt.28-08-2023 necessary to reproduce Government Notification dated 28.12.2018 which reads as under:- "fcgkj ljdkj y?kq ty lalk/ku foHkkx la0la0 y0fl0eks0 fuca/ku Bsdsnkjh 166 18 1652 eks0 iVuk] fnukad 28 12 18 dk; kZy; vkns'k fcgkj Bsdsnkjh fuca/ku fu; ekoyh] 2007 vUrxZr Js.kh&01] 02 o 03 esa laosndksa dks y?kq ty lalk/ku foHkkx ds vUrxZr fucaf/kr djus ds fy, eq[; vfHk;Urk] (;kstuk+ vuqJo.k +HkwxHkZ) y?kq ty lalk/ku foHkkx] iVuk dks fuca/ku inkf/kdkjh izkf/kd`r fd;k tkrk gSA bl ij l{ke izkf/kdj dk vuqeksnu izkIr gSA la; qDr lfpo] y?kq ty lalk/ku foHkkx] fcgkj] iVukA Kkikad& 1652 ekss0 iVuk] fnukad 28&12&18 izfrfyfi&lHkh eq[; vfHk;Urk] y?kq ty lalk/ku foHkkx lHkh v/kh{k.k vfHk;Urk] y?kq flapkbZ vapy lHkh dk; Zikyd vfHk;Urk] y?kq flapkbZ ize.My dks lw- pukFkZ ,oa vko';d dkjZokbZ gsrq izsf"krA la; qDr lfpoA Kkikad& 1652 eks0 iVuk] fnukad& 28&12&18 izfrfyfi&eq[; vfHk;Urk] (;kstuk+ vuqJo.k +HkwxHkZ)Z] y?kq ty lalk/ku foHkkx] iVuk dks lwpukFkZ ,oa vko';d dkjZokbZ gsrq izsf"krA la; qDr lfpoA Kkikad& 1652 eks0 iVuk] fnukad& 28&12&18 izfrfyfi&iz/kku lfpo] y?kq ty lalk/ku foHkkx] fcgkj] iVuk ds vkIr lfpo ekuuh; ea=h] y?kq ty lalk/ku foHkkx] fcgkj] iVuk ds vkIr lfpo dks lw- pukFkZ ,oa vko';d dkjZokbZ gsrq izsf"krA la; qDr lfpoA"

#10. It is only nominating the Chief Engineer insofar as exercising power under Rules, 2007. The State Government has not authorized the Chief-Engineer to sub-delegate his powers. Patna High Court CWJC No.9769 of 2023 dt.28-08-2023 Therefore, the regular Chief Engineer is alone the competent au- thority to take action in terms of Rules, 2007.

#11. Hon'ble Apex Court in the following decisions has held that statutory power is required to be exercised by such au- thority which are reflected in the statute:- (i) In the case of Dhananjay Reddy vs. State of Kar- nataka reported in (2001) 4 SCC 9, in paragraph 23, it is held as under:- “23. It is settled principle of law that where a power is given to do a certain thing in a certain manner, the thing must be done in that way or not at all. This Court in the State of Uttar Pradesh vs. Singhara Singh and Others reported in 1964 AIR SC 358 held that: “A Magistrate, therefore, cannot in the course of investigation record a confes- sion except in the manner laid down in Sec- tion 164. The power to record the confession has obviously been given so that the confes- sion might be proved by the record of it made made in the manner laid down.” (ii) In the case of T. Ramamoorthy vs. The Secretary, Sri Ramakrishna Vidyalaya High School, Tirupparaithurai, Tiruchirapalli District and Others reported in 1998 (4) L.L.N. 876, in paragraph 6, it is held as under:- "6. This principle that where a power is given to do a certain thing in a cer- tain way, things must be done in that way and not otherwise and that other method of per- formance is necessarily precluded, is not only Patna High Court CWJC No.9769 of 2023 dt.28-08-2023 well settled but squarely applied to this case also in construing the scope of the power as also its exercise by the management by under Section 22 of the Act.” (iii) In the case of Captain Sube Singh and Others vs. LT. Governor of Delhi and Others reported in (2004) 6 SCC 440, in paragraph 29, it is held as under: “29. In Anjum M.H. Ghaswala (CIT v. Anjum M.H. Ghaswala, 2002 1 SCC 633) a Constitution Bench of this Court reaffirmed the general rule that when a statute vests cer- tain power in an authority to be exercised in a particular manner then the said authority has to exercise it only in the manner provided in the statute itself.(See also in this connection Dhanajaya Reddy v. State of Karnataka, 2001 4 SCC 9). The statute in question requires the authority to act in accordance with the rules of variation of the conditions attached to the permit. In our view, it is not permissible to the State Government to purport to after these conditions by issuing a notification under Section 67(1)(d) read with sub-clause (i) thereof.” (iv) In the case of State of Jharkhand and Others vs. Ambay Cements and Another reported in 2005 (1) CTC 223, in paragraph 26, it is held as under:- “26. Whenever the statute pre- scribes that a particular act is to be done in a particular manner and also lays down that failure to comply with the said requirement leads to severe consequences, such require- ment would be mandatory. It is the cardinal rule of interpretation that where a statute pro- vides that a particular thing should be done, it should be done in that manner prescribed and Patna High Court CWJC No.9769 of 2023 dt.28-08-2023 not in any other way. It is also settled rule of interpretation that where a statute is penal in character, it must be strictly construed and followed. Since the requirement, in the instant case, of obtaining prior permission is manda- tory, therefore, non compliance with the same must result in cancelling the concession made in favour of the grantee, the respondent therein.”

#12. In the case of Dharani Sugars and Chemicals Ltd. vs. Union of India reported in (2019) 5 SCC 480, in paragraph 63 and 72, it is held as under:- "63. When one section of a statute grants general powers, as opposed to another section of the same statute which grants spe- cific powers, the general provisions cannot be utilised where a specific provision has been enacted with a specific purpose in mind. Thus, in J.K. Cotton Spg. & Wvg. Mills Co. Ltd. v. State of U.P. [J.K. Cotton Spg. & Wvg. Mills Co. Ltd. v. State of U.P., (1961) 3 SCR 185 : AIR 1961 SC 1170] , this Court held: (SCR pp. 194-95 : AIR p. 1174, para 9) “9. There will be complete harmony however if we hold instead that Clause 5(a) will apply in all other cases of proposed dis- missal or discharge except where an inquiry is pending within the meaning of Clause 23. We reach the same result by applying another well-known rule of construction that general provisions yield to special provisions. The learned Attorney General seemed to suggest that while this rule of construction is applica- ble to resolve the conflict between the general provision in one Act and the special provision in another Act, the rule cannot apply in re- solving a conflict between general and spe- cial provisions in the same legislative instru- ment. This suggestion does not find support in either principle or authority. The rule that Patna High Court CWJC No.9769 of 2023 dt.28-08-2023 general provisions should yield to specific provisions is not an arbitrary principle made by lawyers and Judges but springs from the common understanding of men and women that when the same person gives two direc- tions one covering a large number of matters in general and another to only some of them his intention is that these latter directions should prevail as regards these while as re- gards all the rest the earlier direction should have effect. In Pretty v. Solly [Pretty v. Solly, (1859) 26 Beav 606 : 53 ER 1032] (quoted in Craies on Statute Law at p. 206, 6th Edn.) Romilly, M.R., mentioned the rule thus: ‘The rule is that whenever there is a particular en- actment and a general enactment in the same statute and the latter, taken in its most com- prehensive sense, would overrule the former, the particular enactment must be operative, and the general enactment must be taken to affect only the other parts of the statute to which it may properly apply.’ The rule has been applied as be- tween different provisions of the same statute in numerous cases some of which only need be mentioned: De Winton v. Brecon Corpn. [De Winton v. Brecon Corpn., (1859) 28 LJ Ch 598 : (1859) 26 Beav 533 : 53 ER 1004] , Churchill v. Crease [Churchill v. Crease, (1828) 5 Bing 177 : 130 ER 1028] , United States v. Chase [United States v. Chase, 1890 SCC OnLine US SC 153 : 34 L Ed 117 : 135 US 255 (1890)] and Carroll v. Greenwich In- surance Co. of New York [Carroll v. Green- wich Insurance Co. of New York, 1905 SCC OnLine US SC 177 : 50 L Ed 246 : 199 US 401 (1905)] . This judgment has been followed in CTO v. Binani Cements Ltd. [CTO v. Binani Cements Ltd., (2014) 8 SCC 319] , SCC para 39.

#72. There is nothing to show that the provisions of Section 45-L(3) have been Patna High Court CWJC No.9769 of 2023 dt.28-08-2023 satisfied in issuing the impugned circular. The impugned circular nowhere says that RBI has had due regard to the conditions in which and the objects for which such institutions have been established, their statutory responsibili- ties, and the effect the business of such finan- cial institutions is likely to have on trends in the money and capital markets. Further, it is clear that the impugned circular applies to banking and non-banking institutions alike, as banking and non-banking institutions are often in a joint lenders' forum which jointly lend sums of money to debtors. Such non- banking financial institutions are, therefore, inseparable from banking institutions insofar as the application of the impugned circular is concerned. It is very difficult to segregate the non-banking financial institutions from banks so as to make the circular applicable to them even if it is ultra vires insofar as banks are concerned. For these reasons also, the im- pugned circular will have to be declared as ultra vires as a whole, and be declared to be of no effect in law. Consequently, all actions taken under the said circular, including ac- tions by which the Insolvency Code has been triggered must fall along with the said circu- lar. As a result, all cases in which debtors have been proceeded against by financial creditors under Section 7 of the Insolvency Code, only because of the operation of the im- pugned circular will be proceedings which, being faulted at the very inception, are de- clared to be non est."

#13. Recently Hon'ble Apex Court in the case of Avtar Singh vs. State of Punjab reported in 2023 SCC online SC 319. In para 13, 14 and 15 it is held as under:- "13. The facts in the case as noticed above as such, are not in dispute. The only ar- gument raised is about the power of the per- Patna High Court CWJC No.9769 of 2023 dt.28-08-2023 son who had seized cylinder on the basis of which the appellants were prosecuted. Clause 7 of the Order, which is reproduced hereun- der, prescribes officers who have the power. "7. Power of entry, search and seizure:— (1) an officer or the Department of Food and Civil Supplies of the Government, not below the rank of an Inspector authorised by such Government and notified by Central Government or any officer not below the rank of a Sales Officer of an Oil Company, or a person authorized by the Central Government or a State Government and notified by the Central Government may, with a view to en- suring compliance with the provisions of this Order, for the purpose of satisfying herself that this order or any order made thereunder has been complied with: (a) Stop and search any vessel or vehicle which the Officer has reason to be- lieve has been, or is being or is about to be, used in the contravention of this Order; (b) Enter or search any place with such aid or assistance as may be necessary; (c) Seize and remove with such aid or assistance as may be necessary, the entire quantity of any stock of liquefied petroleum gas in cylinders, cylinder valves and pressure regulators, alongwith the vehicles, vessels or any other conveyances used in carrying such stock if he has reason to suspect that any pro- vision of this Order has been or is being or is about to be, contravened in respect of such stock and thereafter take or authorise the tak- ing of all measures necessary for securing the production of the stock of liquefied petroleum gas in cylinder, cylinders, gas cylinder valves, pressure regulators, vehicles, vessels or other Patna High Court CWJC No.9769 of 2023 dt.28-08-2023 conveyances so seized before the Collector having jurisdiction under the provisions of section of the Essential Commodities Act, 1955 (10 of 1955) and for their safe custody pending such production……”

#14. It nowhere prescribes that a Sub-Inspector of the Police can take action. No doubt, the aforesaid Clause provides that in addition to the specified officers, the per- sons authorised by the Central or State Gov- ernment may take action under the Order. However, nothing has been placed on record to support the argument that the Sub-Inspec- tor of the Police was authorised to take action under the aforesaid Order.

#15. It is a settled law that where a power is given to do a certain thing in a cer- tain way, the thing must be done in that way or not at all. Other methods are necessarily forbidden. Reference can be made to Dharani Sugars and Chemicals Ltd. v. Union of India reported in (2019) 5 SCC 480."

#14. This Court has also taken note of competency in the case of Bipin Kumar Patel vs. The State of Bihar & Ors. (CWJC No. 4726 of 2023) vide order dated 20.04.2023 and also in the case of Pramila Devi vs. The State of Bihar & Ors. (CWJC No. 22255 of 2018) vide order dated 14.07.2023.

#15. In the light of these facts and circumstances, we are of the opinion that Superintending Engineer who was appointed as In-charge Chief Engineer cannot exercise statutory powers under Rules, 2007 read with Government Notification dated 28.12.2018. Accordingly, show cause notice dated 24.02.2023 (Annexure-1) Patna High Court CWJC No.9769 of 2023 dt.28-08-2023 stands set aside reserving liberty to the concerned authority to proceed in accordance with law, if it is warranted.

#15. Accordingly, the present writ petition stands al- lowed. (P. B. Bajanthri, J) (Arun Kumar Jha, J) Vikash/- AFR/NAFR CAV DATE Uploading Date Transmission Date N/A N/A