PETITIONER: SUBHAS CHANDRA AND OTHERS Vs. RESPONDENT: MUNICIPAL CORPORATION OF DELHI AND ANOTHER DATE OF JUDGMENT: 25/09/1964 BENCH: MUDHOLKAR, J.R. BENCH: MUDHOLKAR, J.R. GAJENDRAGADKAR, P.B. (CJ) WANCHOO, K.N. HIDAYATULLAH, M. DAYAL, RAGHUBAR CITATION: 1965 AIR 1275 1965 SCR (1) 350 ACT: Punjab Municipal Act (Punj. III of 1911), ss. 232, 235 and 236 Scope of. HEADNOTE: The now defunct Municipal Committee of Delhi resolved in November 1957 that a graduate allowance should be paid to its graduate clerks in the junior grade. The Municipal Committee was replaced by the Municipal Corporation of Delhi under Act 66 of 1957 and the Commissioner of the Corporation admitted the claim only of those graduate junior grade clerks who were granted permission to pursue higher studies before July 1954. The petitioners who were other clerical employees serving the Corporation moved the Supreme Court by a petition under Art. 32 of the Constitution alleging that the order of the Commissioner was discriminatory because there was no- rational basis for excluding them from the benefits of the resolution. The respondents contended that the Chief Commissioner of Delhi by his order dated October 30, 1956, passed under s. 232 of the Punjab Municipal Act (3 of 1911), had prohibited the granting of such special pays or other pecuniary benefits and so, the impugned order being itself without jurisdiction the petitioners could not complain of being discriminated against. HELD : The Order of the Chief Commissioner 'was perfectly legal and in view of that Order it was not open to the Committee to sanction the payment of any allowance to any of its employees in November 1957. The resolution being without jurisdiction, the Commissioner of the Corporation could not treat it as a basis for sanctioning the graduate allowance to a graduate employee. The order of the Com- missioner being thus illegal, no question of discrimination arises and the petition should be dismissed. [359 B-D]. By virtue of the provisions of the Delhi Laws Act 1912, Adaptation of Laws Order, 1950, and s. 3 of the General Clauses Act, 1897, the Chief Commissioner could make the order under s. 232 of the Punjab Municipal Act, 1911. He had two sources of power under a. 232 and s. 236 and was free to avail himself of either source. Section 232 certainly empowered him to prohibit the Committee from granting special pay or other pecuniary advantage to its employees when it was "about to" do so. When the doing of an act was so prohibited, the Committee ceased to have any power to do it and a resolution passed by it that such act may be done can have no legal validity. The precise meaning that should be given to the expression "about to" depends upon the context in which it is used, but there is no difficulty in the instant case because, the order itself mentions that it was made to appear to the Chief Commissioner that the Municipal Committee was "about to" grant special pay or other pecuniary benefits to some of its employees. Though no opportunity was given to the Committee as required 'by s. 235 of the Punjab Municipal Act, the Committee can acquiesce and waive such non-compliance, and since the section does not require that an opportunity should be given to the parties affected by 351 the Order of the Chief Commissioner, they are not entitled to say the Order is bad. Further, the section would be inapplicable in a case where the Order was passed by the Chief Commissioner himself. [354DG; 355A-C.. D-F; 357D-G; 358F-G]. JUDGMENT:
ORIGINAL JURISDICTION Writ Petition No. 33 of 1964.
Petition under Art. 32 of the Constitution of India for the
enforcement of Fundamental Rights.
K. Baldev Mehta, for the petitioners.
S. G. Patwardhan and O. C. Mathur for the respondents.
The Judgment of the Court was delivered by
Mudholkar J. Eleven clerical employees serving the Cor-
poration of Delhi have moved this Court under Art. 32 of the
Constitution for quashing an order dated November 5, 1958
made by the Commissioner of the Corporation of Delhi and
issuing a writ of mandamus or other appropriate writ, order
or direction requiring the respondents to give effect to a
resolution dated November 1/8, 1957 passed by the Executive
and Finance Sub-Committee of the now defunct Municipal
Committee of Delhi. The main ground on which the reliefs
are claimed is that the action of the Commissioner in making
the order has resulted in discrimination against the
petitioners.
In order to appreciate the point some facts have to be
stated. Prior to the year 1948 the Municipal Committee
recruited matriculates and non-matriculates as clerks in the
junior grade of Rs. 35-2-65-3-95. In order to attract
better qualified persons they offered Rs. 45 as starting
salary for graduates in this grade. Thereafter the
Committee, by its resolution dated September 16, 1948,
revised the grades and scales of pay for its entire staff on
the basis of the recommendations of the Central Pay
Commission appointed by the Government of India. By this
resolution the Committee created two junior grades for
recruitment of clerks, a grade of Rs. 55-3-85-4-125-5-130
for matriculates and the grade of Rs. 45-2-55-3-95-4-105 for
non-matriculates.
According to the petitioners the Committee, in order to
attract graduates and persons of higher academic
qualifications and for giving an impetus to the clerical
employees for pursuing higher studies, decided by the same
resolution, inter alia, that graduates working in the junior
grade would be paid a “graduate allowance” of Rs. 20 p.m.
Further, according to them, this was sanctioned by the Chief
Commissioner, Delhi by Memo No. F. 2(102)48-L.S.G. dated
July 26/27, 1949.
352
It is common ground that by resolution No. 447 dated July
16, 1954 as amended by resolution No. 550 dated July 30,
1954 the Committee stopped payment of the graduate allowance
to future recruits but continued its payment to such of the
permanent and temporary -employees in the junior grade who
were already in recipt of the allowance. Thirty employees
of the Committee made representations to the Committee
against confining the payment of the allowance only to those
persons who were already in receipt of it and demanded that
this allowance should be paid to every employee who passed
his B.A. examination after 1954 as well as to every graduate
employee recruited after 1954. This representation
succeeded and by resolution No. 693 dated November 1, 1957
the Committee resolved that the system of payment of
personal pay of Rs. 20 per mensem to all graduates in the
junior grade be revived and that the necessary sanction of
the Chief Commissioner to this proposal be obtained. On
November 8, 1957 the Committee amended the aforesaid
resolution by resolution No. 701 and directed that the words
“Necessary sanction of the Chief Commissioner be obtained”
appearing at the end of the resolution be deleted.
According to the petitioners, therefore, this resolution
came into operation immediately and they became entitled to
payment of Rs. 20, with retrospective effect.
Before this resolution could be implemented the Municipal
Committee of Delhi was replaced by the Municipal Corporation
of Delhi by the coming into force of the Delhi Corporation
Act, 1957 (66 of 1957). The petitioners, therefore,
approached the Commissioner of the Corporation and requested
him to give effect to the resolution of November 1, 1957 as
amended by the resolution dated November 8, 1957. By Office
Order No. 1343 EST (58) dated November 5, 1958 the
Commissioner admitted the claim for payment of graduate
allowance to those graduate junior grade clerks of the
erstwhile Delhi Municipal Committee who had been granted
permission to pursue higher studies before July 30, 1954,
but not to the remaining 18 persons. The grievance of the
petitioners is that this Order of the Commissioner is dis-
criminatory because there is no rational basis for excluding
them from the benefit of the aforementioned resolution of
the Committee. The petitioners then moved a petition under
Art. 226 of the Constitution before the High Court of Punjab
but eventually withdrew it. They have now come to this
Court under Art. 32 of the Constitution.
The petitioners’ application is resisted on behalf of the
Corporation on two main grounds. The first ground is that
they
353
have come to this Court after a long delay and the other
ground is that the impugned order of the Commissioner was
itself without jurisdiction and, therefore, the petitioners
cannot complain of being discriminated against.
The petitioners admit that there was a delay of about five
years in making this petition but they explain it by
pointing out that all this was occasioned by reason of the
fact that their writ petition remained pending in the High
Court of Punjab for almost five years and that they had to
withdraw it ultimately because the learned Judge before whom
the petition went for final hearing pointed out that in view
of a previous decision of the High Court a joint petition of
the kind was not entertainable. Further, according to them,
where a person seeks to enforce a fundamental right under
Art. 32 of the Constitution mere delay cannot stand in his
way. In our opinion, it is not necessary to pronounce upon
this point because the petition must fail on the other
ground urged on behalf of the respondents.
It is true that no resolution of the Committee nor any rule
or bye-law has been brought to our notice which requires
that an employee must, before pursuing higher studies,
obtain the permission of the Committee and, therefore, there
was no reasonable basis for treating the petitioners
differently from the 12 persons whose claim to the allowance
was admitted by the Commissioner. But the question is
whether the Commissioner could legally admit the claim even
of those 12 persons. Mr. Patwardhan, appearing for the
respondents, contends that the Chief Commissioner of Delhi
by his Order dated October 30, 1956 made in exercise of the
powers vested in him by s. 232 of the Punjab Municipal Act,
1911 (hereafter referred to as the Act) prohibited all
municipal and notified area Committees within the State of
Delhi, from among other things, revising the existing scales
of pay of any of their employees and granting any special
pay or any other pecuniary benefits to them. The Committee
was therefore, according to Mr. Patwardhan, incompetent to
pass the resolution No. 693 dated November 1, 1957 and then
amend it by resolution No. 701 dated November 8, 1957. Mr.
Baldev Mehta appearing for the petitioners challenges the
validity of the order of the Chief Commissioner on the
grounds that it was beyond the scope of s. 232 of the Act
and that no opportunity was given to the Committee to offer
an explanation as contemplated by s. 235 of the Act nor was
any order ultimately made under that section.
354
In the first place, according to him, s. 232 of the Act
could not be resorted-to by the Chief Commissioner but only
by the Deputy Commissioner. Before the passing of Punjab
Act 34 of 1933 -this section read as follows:
“232. The Commissioner or the Deputy Commis-
sioner may by order in writing, suspend the
execution of any resolution or order of a
committee, or joint committee or prohibit the
doing of any act which is about to be done, or
is being done in pursuance of or under cover
of this Act, or in pursuance of any sanction
or permission granted by the committee in the
exercise of its powers under the Act, if, in
his opinion the resolution, or order or act
is in excess of the powers conferred by law or
contrary to the interests of the public or
likely, to cause waste or damage of municipal
funds or property, or the execution of the
resolution or order, or the doing of the act,
is likely to lead to a breach of the peace, to
encourage lawlessness or to cause injury or
annoyance to the public or to any class or
body of persons.”
By the aforesaid Act the words “Commissioner or the” were
deleted. It has not been brought to our notice that the
amending Act was applied to the State of Delhi. We must,
therefore, proceed on the footing that the word
“Commissioner” was still there in S. 232 of the Act as
applied to the State of Delhi. By virtue of the provisions
of the Delhi Laws Act, 1912 contained in Schedule B as
adapted by the Adaptation of Laws Order, 1950, the
expression “the Commissioner” used in any enactment appli-
cable to the State of Delhi has to be read as “the State
Government of Delhi”. The expression “State Government” as
defined in sub-s. (60) of s. 3 of the General Clauses Act,
1897 shall as respects anything done after the commencement
of the Constitution and before the commencement of the
Constitution (Seventh Amendment) Act, 1956 mean, in a Part C
State, the Central Government. “Central Government” is
defined in sub-s. (8) of s. 3 of that Act and meant in
relation to a Part C State like Delhi, the Chief
Commissioner thereof. Clearly, therefore, the Chief
Commissioner could make an order of the kind we have to
consider here under S. 232 of the Act.
Mr. Mehta, however, contends that what the Chief Commis-
sioner could do under the section before the Delhi
Corporation Act of 1957 came into force was to suspend the
execution of a resolution or order of a Committee or
prohibit the doing of an act which was about to be done and
that it did not empower him to prohibit
355
the Municipal Committee from passing a resolution. It is
true that the section did not enable the Chief Commissioner
to prohibit a Committee from passing a particular kind of
resolution but it certainly empowered him to prohibit the
Committee from doing an act which was about to be done.
Here, the order of the Chief Commissioner to which we have
adverted, in fact prohibited the Committee from, among other
thing-,, granting special pay or any other pecuniary
advantage to any of its employees. What was thus’ expressly
prohibited was the doing of an act but not passing of a
resolution. Even so, we think that when the doing of an act
was prohibited the Committee ceased to have any power to do
that act and a resolution passed by it to the effect that
the act be done, can have no legal validity.
But, Mr. Mehta said, the power of the Chief Commissioner was
exercisable only when the Municipal Committee was about to
do something and not to prohibit something in the distant
future. In this regard he has referred us to the meaning
given to the expression “about to” in Stroud’s Judicial
Dictionary and to an English decision referred to therein.
What precise meaning should be given to the expression must
naturally depend upon the context in which it is used but it
does involve the element of anticipation. To this extent,
therefore, Mr. Mehta is right that s. 232 does not authorise
the authorities mentioned therein to make a blanket
prohibition as to the doing of an act or a series of acts
unless the authority anticipated that such acts would be
done. There is, however, no difficulty in the case before us
because the order itself mentions that it had been made to
appear to the Chief Commissioner ‘that the Municipal
Committee of Delhi, amongst other things, was about to
revise the existing scales of pay of its employees, creating
posts and granting advance increments or special pay or
other pecuniary benefits to some of its existing employees.
The obvious reason for making this order was that the
Municipal Committee was soon to cease to exist and the
Corporation of Delhi to take its place. The Chief
Commissioner, therefore, did not want the Committee to enter
into commitments which would bind its successor. A perusal
of the proceedings of the Committee during the relevant
period shows that the Committee had before it numerous
proposals relating to the emoluments of its employees and
the Chief Commissioner must have known about them.
Mr. Mehta then contended that if upon its true construction
s. 232 permitted the Chief Commissioner to suspend the
execution of any resolution or order of a Committee but
did not prohibit
356
the passing of a resolution the Committee was quite
competent to pass the resolutions of November I and 8, 1957
and in this connection he referred us to the decisions of
the Punjab High Court in Mistri Mohammad Hussain v.
Municipal Committee, Sialkot(1), Lahore Municipality v.
Jagan Nath (2) and Mahadeo Prasad v. U. P. Government(3).
None of these cases helps him but one of them goes against
his contention. In the first case the Deputy Commissioner
had ordered the suspension of a resolution passed by a
Committee sanctioning the construction of a platform ,after
the platform had been constructed. In order to give effect
to the order the Committee ordered under S. 172 the
demolition of the platform. The High Court held that as the
platform could not be said to have been constructed without
sanction its demolition could not be ordered under s. 172.
In the second case the High Court, following the above
decision, held that under S. 232 the Deputy Commissioner can
prohibit the doing of an act or suspend the execution of a
resolution before the act was done or the resolution carried
out. In the third case the Allahabad High Court had,
amongst other provisions, to consider S. 34(1) of the U. P.
Municipalities Act, 1916 where under the District Magistrate
could prohibit the execution or further execution of a
resolution passed by a Municipal Committee. The High Court
pointed out that this provision did not, as did the
corresponding provision in an earlier Act, empower the
District-Magistrate to make an order in anticipation of an
act which was about to be done. This case is thus
distinguishable.
Then there is the objection of Mr. Mehta that no opportunity
was given to the Municipal Committee to show cause against
the order of the Chief Commissioner as required by s. 235 of
the Act. It is obvious that s. 235 applies to a case where
an order was made by an authority subordinate to the State
Government and does not, in terms, apply to an order made by
the State Government (here, the Chief Commissioner) itself.
Mr. Mehta, however, contends that the essential requirement
of S. 235 is that the Committee must be given an opportunity
to be heard and such opportunity cannot be dispensed with
even if the original order under S. 232 is made by the State
Government. According to him, the non-compliance with this
requirement has rendered the order void and ineffective. In
support of this contention he relies on the decision in
Abdul Gaffoor v. State of Madras(4). That was a case in
which a Municipal
(1) A.I.R. 1936 Lahore 689.
(3) I.L.R. [1948] All. 512.
(2) A.I.R. 1939 Lahore 581.
(4) A.T.R. 1952 Mad. 555.
357
Committee had granted the application of the petitioner
under s. 250 of the Madras District Municipalities Act, 1920
and permitted him to instal an oil engine to run his cinema
but had rejected a similar application by the second
respondent. The Government, acting under s. 252 of the
Madras Act, set aside the resolution of the Municipality and
directed it forthwith to accord its permission to respondent
No. 2 to instal an oil engine. The High Court quashed the
order of the Government on the ground that the Government
could not make such an order without giving an opportunity
to the petitioner, who was affected by the order, to offer
an explanation as contemplated by the first proviso to s. 36
of the Act. This decision cannot afford any assistance to
the petitioners before us as there is no provision in the
Punjab Municipal Act analogous to the above provision
requiring the Government to afford an opportunity to all the
persons affected, to offer an explanation. Section 235
requires the State Government to give an opportunity to the
municipality and to none else. No grievance is alleged to
have been made by the Committee of the omission by the
Government to give it the opportunity contemplated by s.
235. It has to be borne in mind that an order under s. 232
takes effect immediately and its operation is not made
dependent upon the action contemplated under s. 235. Where
an order is made thereunder by an authority other than the
State Government that authority has to report to the State
Government. But, though such authority is bound to make a
report its order is not inoperative or inchoate. It has to
be given effect to by the Committee. It is true that till
the procedure set out in s. 235 is complied with it cannot
be regarded as final. But want of finality does not vitiate
the order under s. 232. The order is, unless modified or
annulled by the State Government, legally effective and
binding on the Committee. The Committee can, therefore
acquiesce in it and waive the noncompliance by the State
Government with the provisions of s. 235. Since section 235
does not require an opportunity to be given to parties
affected by the order other than the Municipality the
petitioners are not entitled to say that the order is bad.
The decision relied on thus does not assist them. Besides,
as we have already pointed out, in the present case s. 235
is wholly inapplicable because the order in question has
been passed by the Chief Commissioner.
Then, according to him, the Chief Commissioner or the State
Government could not resort to s. 232 of the Act which is a
general provision but could act only under s. 236, sub-s.
(2)
L2Sup./64-10
358
read with sub-s.(1) which is a special provision dealing
with the powers of the State Government. The provision runs
thus:
“236(1). The State Government and Deputy Com-
missioners acting under the orders of the
State Government, shall be bound to require
that the proceedings of committees shall be in
conformity with law and with the rules in
force under any enactment for the time being
applicable to Punjab generally or the
areas over which the committees have
authority.
(2) The State Government may exercise all
powers necessary for the performance of this
duty, and may among other things, by order in
writing, annul or modify any proceeding which
it may consider not to be in conformity with
law or with such rules as aforesaid, or for
the reasons which would in its opinion justify
an order by the Deputy Commissioner under
section 232.”
Comparing them with those of s. 232 it would be apparent
that though there is a certain amount of overlapping when we
read in s. 232 the words ‘State Government’ for
‘Commissioner’, the ambit of the two provisions is not quite
the same. The overlapping is due to the fact that the two
provisions are contained in an Act which was passed in 191 1
for being applied in the former Province ,of Punjab and that
it was by virtue of the Delhi Laws Act, 1912 that they were
applied to the erstwhile province of Delhi with certain
modifications. In its original form the power under s. 232
was not exercisable by the Provincial Government. It is
only because of the modification made in s. 232 that the
words “the Provincial Government of Delhi” and later “the
State Government of Delhi” had to be read for the word
“Commissioner” in s. 232. As a result of the overlapping
between the two sets of provisions in their application to
the State of Delhi what has happened is that two sources of
power, one under s. 232 and another under S. 235, are now
available to the State Government and it was free to avail
itself of either source.
Finally, according to Mr. Mehta the proper provision under
which action could be taken by the authorities was s. 42 and
this provision rendered s. 232 inapplicable. Under that
provision a Deputy Commissioner can check extravagant
expenditure by the Committee and order it to reduce the
remuneration of any of its employees but that action under
it cannot be taken in anticipation. No ground has been
raised in the petition in regard to this. That apart, here
we are concerned with the competence of the State
359
Government to make an order of the kind which the Chief Com-
missioner made on October 30, 1956. That provision could
not have been resorted to by him and cannot, therefore, be
regarded as a special provision which excluded the
utilisation of s. 232. Further, it cannot be so construed
as to disentitle the authorities mentioned in s. 232 from
prohibiting in anticipation an action such as increasing the
emoluments of its employees.
We are satisfied that the order of the Chief Commissioner
dated October 30, 1956 was perfectly legal and in view of
that order it was not open to the Committee to sanction the
payment of an allowance to any of its employees thereafter.
The resolution passed by it on November 1, 1957 was,
therefore, beyond its jurisdiction and consequently the
Commissioner of the Corporation could not treat it as a
basis for sanctioning the allowance of Rs. 20 p.m. to any
graduate employee of the Municipal Committee who was not in
receipt of the allowance till then. The order of the
Commissioner dated November 5, 1958 being thus illegal no
question of discrimination arises.
The petition is dismissed; but in the circumstances of the
case we make no order as to costs.
Petition dismissed.
360