N.H.BHATT - (1.)[His Lordship after staling the facts further observed:-] ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ...
(2.)Mr. Mehta however very strongly pressed into service the provisions of sec. 262 of the Act (Gujarat Municipalities Act) sub-sec. (1) of which is reproduced below :-
"262(1). When the State Government is informed on complaint made or otherwise that default has been made in the performance of any duty imposed on a municipality by or under this Act or by or under an enactment for the time being in force. The State Government if satisfied after due enquiry that the alleged default has been made may direct the director to fix a period for the performance of that duty."
Relying heavily upon the general controlling power of the State Government Mr. Mehta urged that under sec. 41 of the Primary Education Act 1947 it is the duty of every non-authorised municipality-Cambay municipality is a non-authorised municipality and there is no controversy in this regard to pay annually to every District school Board ...for the purpose of primary education such proportion of the rateable value of properties in the area of the municipality as may from time to time be fixed in this behalf by the State Government and the income accruing from any funds (including trust funds) held and all moneys received by it for the said purposes. It cannot be denied that under sec. 41 of the said Act the respondent municipality was under a statutory obligation to make payment of the primary education contribution. If it be so under sec. 262 of the Gujarat Municipalities Act which is quoted above the State Government can get that duty of the municipality enforced. Sec. 262 (1) of the. Act is general in character. As and when the State Government comes to know through any source that the municipality has committed default in the performance of any of its duties imposed either under the Gujarat Municipalities Act or under any special enactment for the time being in force the Government can set in motion the machinery contemplated in sec. 262(1) of the Act in order to see that the said duty is duly done. The procedure however is well laid down in sub-sec. (1) of sec. 262. The State Government before it proceeds further has to hold a due enquiry about the alleged default and at the conclusion of the said due enquiry to be held in consonance with the principles of natural justice the State Government has to be satisfied that the alleged default has been committed. The next step that has to be taken by the State Government is to direct its Director to fix the period for the performance of the duty. The performance of duties contemplated by subsec. (1) of sec. 262 may be of a variegated character. Some duties may be such for which a special deputy will be required to be appointed. For example construction of latrines keeping the public street open getting sewage cleared etc. Such a work cannot be done by the Government itself or by the Director. Such work is to be carried out through some agency and for that purpose some agency will be required to be appointed and under sec. 262(2) the Director can appoint some such agency to perform it. The expenses of the performance of that duty and the remuneration of that agency if any naturally will be the liability of the municipality to realise which a procedure has been contemplated in sec. 262(3) of the Act. However if there be any such duty which can be got performed by the State Government through its Director without incurring any expenses or without raising the liability of any remuneration the Government can get that duty discharged or performed under the general powers of sec. 262 of the Act.
(3.)Mr. Zaveri for the respondent-municipality however very vehemently contended that because of the subsequent provisions of sub-secs. (2) and (3) of sec. 262 of the Act the scope and ambit of sub-sec. (1) should be treated as limited in character. In his submission the Legislature contemplated the appointment of some agency by the Director and the involvement of expenses and remuneration went to suggest very clearly that some step through the intervention of some such third agency was the sine qua non of the discharge of the duty or the performance of the duty contemplated by sub-sec. (1) of sec. 262 of the Act. We are not in a position to accept this submission of Mr. Zaveri because sub-secs. (2) and (3) are procedural in character. The substantive power that is conferred on the State Government is to be found in sec. 262 (1) and if without recourse to those ancillary and subsequent steps the said power could be exercised it is perfectly within the competence of the State Government to act under sub-sec. (1) of sec. 262.