Subhas Chandra And Others vs Municipal Corporation Of Delhi

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Writ Petition No. 33 of 1964

Decision Date: 25 September 1964

Coram: J.R. Mudholkar, P.B. Gajendragadkar, K.N. Wanchoo, M. Hidayatullah, Raghubar Dayal

In the matter titled Subhas Chandra and Others versus Municipal Corporation of Delhi and another, the Supreme Court of India delivered its judgment on 25 September 1964. The judgment was authored by Justice J.R. Mudholkar, and the bench comprised Justices J.R. Mudholkar, P.B. Gajendragadkar, K.N. Wanchoo, M. Hidayatullah and Raghubar Dayal. The petitioners, identified as Subhas Chandra and others, brought a writ petition under Article 32 of the Constitution, alleging violation of their fundamental rights. The respondents were the Municipal Corporation of Delhi and another party. The case is reported in 1965 AIR 1275 and 1965 SCR (1) 350, and it concerns the Punjab Municipal Act (1911), specifically sections 232, 235 and 236.

The headnote records that the now‑defunct Municipal Committee of Delhi, in November 1957, resolved to pay a graduate allowance to its junior‑grade clerks who possessed graduate qualifications. Subsequently, the Municipal Committee was replaced by the Municipal Corporation of Delhi under Act 66 of 1957. The Commissioner of the Corporation, however, accepted the allowance claim only for those graduate junior clerks who had obtained permission to pursue higher studies before July 1954. The petitioners, who were other clerical employees of the Corporation, filed the present petition asserting that the Commissioner’s order was discriminatory because it lacked any rational basis for excluding them from the benefits of the Committee’s resolution. The respondents countered that the Chief Commissioner of Delhi, by an order dated 30 October 1956 issued under section 232 of the Punjab Municipal Act (1911), had prohibited the granting of any special pay or pecuniary advantage, and therefore the impugned order was beyond the Commissioner’s jurisdiction, precluding any claim of discrimination.

The Court held that the Chief Commissioner’s order was perfectly legal and, in view of that order, the Committee was not empowered to sanction any allowance to any employee in November 1957. Because the resolution was passed without jurisdiction, the Commissioner of the Corporation could not rely on it as a basis for granting the graduate allowance to any graduate employee. Consequently, the order of the Commissioner was illegal, and no question of discrimination arose; the petition was therefore dismissed. The Court further explained that, by virtue of the Delhi Laws Act 1912, the Adaptation of Laws Order 1950 and section 3 of the General Clauses Act 1897, the Chief Commissioner was authorized to make the order under section 232 of the Punjab Municipal Act 1911. The Chief Commissioner possessed two sources of power, those conferred by section 232 and by section 236, and he was free to rely on either. Section 232 expressly empowered him to prohibit the Committee from granting any special pay or other pecuniary advantage when the Committee was “about to” do so. Once such an act was prohibited, the Committee lost the authority to perform it, and any resolution passed by the Committee authorising the act could not have legal effect.

The Court observed that the meaning of the phrase “about to” varies according to the situation in which it is employed, but in the present matter the meaning was clear. The order itself stated that it was intended to give the Chief Commissioner the impression that the Municipal Committee was “about to” grant special pay or other monetary benefits to certain employees. Although section 235 of the Punjab Municipal Act requires that an opportunity be provided to the Committee before such a step, the Court held that the Committee could choose to acquiesce in and waive the failure to give that opportunity. Moreover, the provision does not oblige the authorities to give an opportunity to the persons affected by the Chief Commissioner’s order, and therefore those persons could not successfully contend that the order was invalid on that ground. The Court further concluded that the requirement of section 235 could not be invoked when the order in question was issued directly by the Chief Commissioner himself. These observations were recorded at pages 354DG, 355A‑C, 355D‑F, 357D‑G and 358F‑G of the judgment.

The petition, filed in original jurisdiction as Writ Petition No. 33 of 1964, invoked article 32 of the Constitution for the enforcement of fundamental rights. Eleven clerical employees of the Delhi Corporation approached the Court seeking to annul an order dated 5 November 1958, which had been issued by the Commissioner of the Corporation of Delhi. The petitioners asked that a writ of mandamus or any other appropriate order be directed to the respondents, compelling them to implement a resolution dated 1 November 1957 and amended on 8 November 1957 by the Executive and Finance Sub‑Committee of the now defunct Municipal Committee of Delhi. The principal allegation was that the Commissioner’s order discriminated against the petitioners. To understand the allegation, the Court set out the relevant background. Before 1948 the Municipal Committee recruited clerks who had passed the matriculation examination as well as those who had not, placing them in a junior grade with salaries ranging from Rs 35‑2‑65‑3‑95 to Rs 45‑2‑55‑3‑95‑4‑105. In order to attract more qualified candidates, the Committee offered a starting salary of Rs 45 to graduates. By a resolution of 16 September 1948, the Committee revised all grades and pay scales following the recommendations of the Central Pay Commission established by the Government of India. That resolution created two distinct junior grades: one for matriculates with salaries from Rs 55‑3‑85‑4‑125‑5‑130 and another for non‑matriculates with salaries from Rs 45‑2‑55‑3‑95‑4‑105. According to the petitioners, the same resolution also introduced a “graduate allowance” of Rs 20 per month for graduates serving in the junior grade, an allowance that was subsequently sanctioned by the Chief Commissioner of Delhi through Memorandum No. F. 2(102)48‑L.S.G. dated 26‑27 July 1949. It is an agreed fact that the Committee later passed resolution No. 447, dated...

The Committee had issued resolution number 447 on July 16, 1954, which was later amended by resolution number 550 on July 30, 1954; under these resolutions the Committee discontinued the graduate allowance for future recruits while preserving the allowance for those permanent and temporary employees already receiving it in the junior grade. Subsequently, thirty employees of the Committee submitted representations objecting to the restriction that limited the allowance only to the existing recipients, and they requested that the allowance be extended to every employee who completed a Bachelor of Arts examination after 1954 as well as to any graduate recruited after that year. The Committee accepted these representations, and by resolution number 693 dated November 1, 1957 it resolved to revive the system of paying a personal allowance of Rs 20 per month to all graduates serving in the junior grade, and it also directed that the necessary sanction of the Chief Commissioner be obtained for this proposal. On November 8, 1957 the Committee further amended the November 1 resolution by issuing resolution number 701, which removed the clause requiring the “necessary sanction of the Chief Commissioner” from the end of the earlier resolution. According to the petitioners, this amendment caused the resolution to take effect immediately, thereby entitling them to receive the Rs 20 allowance retrospectively. Before the amended resolution could be implemented, the Municipal Committee of Delhi was replaced by the Municipal Corporation of Delhi upon the commencement of the Delhi Corporation Act, 1957 (Act 66 of 1957). Consequently, the petitioners approached the Commissioner of the new Corporation and requested that he give effect to the November 1, 1957 resolution as altered by the November 8, 1957 amendment. By Office Order number 1343 EST (58) dated November 5, 1958, the Commissioner approved the claim for graduate allowance only for those graduate junior‑grade clerks of the former Delhi Municipal Committee who had obtained permission to pursue higher studies before July 30, 1954, while denying the claim of the remaining eighteen employees. The petitioners contended that this order was discriminatory because no rational basis existed for excluding the latter group from the benefit provided by the Committee’s resolution. They originally filed a petition under Article 226 of the Constitution in the High Court of Punjab but eventually withdrew it. They have now approached this Court invoking Article 32 of the Constitution. The Corporation, on behalf of which the petition is resisted, advanced two principal grounds: first, that the petitioners had delayed unduly in coming before this Court, and second, that the Commissioner’s order was itself beyond his jurisdiction, thereby precluding any claim of discrimination. The petitioners acknowledged a delay of approximately five years in filing the petition, explaining that the delay resulted from their writ petition remaining pending for almost five years in the High Court of Punjab, which they eventually withdrew after a learned judge indicated that, in view of a prior High Court decision, a joint petition of this nature could not be entertained.

In this case the petitioners explained that the writ petition they had filed in the High Court of Punjab remained pending for nearly five years, and that they finally withdrew it because the trial judge, at the final hearing, observed that a joint petition of the type they had presented could not be entertained in view of a prior decision of the High Court. The petitioners further submitted that when a person seeks to enforce a fundamental right under Article 32 of the Constitution, mere delay should not defeat that claim. The Court, however, considered it unnecessary to decide that proposition, because the petition would be dismissed on another ground raised by the respondents. The Court noted that it had not received any resolution of the Committee, nor any rule or bye‑law, which mandated that an employee must obtain the Committee’s permission before pursuing higher studies; consequently there was no reasonable basis for treating the petitioners differently from the twelve employees whose claim to the allowance had been accepted by the Commissioner. The remaining issue, therefore, was whether the Commissioner was legally entitled to admit the claim of those twelve employees. Counsel for the respondents, Mr Patwardhan, argued that the Chief Commissioner of Delhi, by his order dated 30 October 1956, had exercised powers granted by section 232 of the Punjab Municipal Act, 1911 (the “Act”) to forbid all municipal and notified‑area Committees in the State of Delhi from, among other things, revising the existing pay scales of their employees or granting any special pay or other pecuniary benefits. Accordingly, according to Mr Patwardhan, the Committee was not competent to pass resolution No. 693 dated 1 November 1957 or to amend it by resolution No. 701 dated 8 November 1957. Counsel for the petitioners, Mr Baldev Mehta, challenged the validity of the Chief Commissioner’s order on two principal grounds. First, he contended that the order exceeded the authority conferred by section 232 of the Act. Second, he asserted that the Committee had not been given an opportunity to make an explanation as required by section 235 of the Act, nor had any order been issued under that provision. Mr Mehta further argued that, contrary to the respondents’ position, section 232 could be invoked only by the Deputy Commissioner and not by the Chief Commissioner. He pointed out that, prior to the amendment effected by the Punjab Act 34 of 1933, the provision read as follows: “232. The Commissioner or the Deputy Commissioner 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.” The Court therefore had to determine whether the wording “Commissioner or the Deputy Commissioner” as it appeared in the original enactment continued to apply to the State of Delhi, and whether the Chief Commissioner possessed the requisite authority to issue the 1956 order that barred the Committee from granting the allowance claimed by the petitioners.

In the provision that was quoted, the legislature warned that if the execution of a resolution, an order, or the performance of an act might cause damage to municipal funds or property, or might lead to a breach of the peace, encourage lawlessness, or inflict injury or annoyance on the public or any particular class of persons, then the authority could intervene.

The same Act later removed the words “Commissioner or the” from that section. No evidence has been placed before the Court showing that the amendment was ever applied to the State of Delhi. Consequently, the Court must assume that the term “Commissioner” continued to appear in section 232 of the Act as it applied to Delhi.

Under the Delhi Laws Act, 1912, as incorporated in Schedule B and adapted by the Adaptation of Laws Order, 1950, any reference to “the Commissioner” in a law applicable to the State of Delhi is to be read as a reference to “the State Government of Delhi.”

The General Clauses Act, 1897 defines “State Government” in sub‑section (60) of section 3 to mean, for actions occurring after the commencement of the Constitution and before the Constitution (Seventh Amendment) Act, 1956, the Central Government when the territory is a Part C State. The term “Central Government” is defined in sub‑section (8) of section 3 of the same Act and, for a Part C State such as Delhi, refers to the Chief Commissioner of that State.

Therefore, the Court concluded that the Chief Commissioner of Delhi possessed the statutory authority to issue an order of the type presently under consideration pursuant to section 232 of the Act.

Mr. Mehta, however, argued that before the Delhi Corporation Act of 1957 came into force, the Chief Commissioner’s power under the section was limited to suspending the execution of a resolution or order of a municipal committee or to prohibiting an act that was about to be performed. He maintained that the provision did not give the Chief Commissioner authority to stop the municipal committee from adopting a resolution in the first place.

It is correct that the language of the section does not expressly empower the Chief Commissioner to prevent a committee from passing a particular class of resolution. Nevertheless, the provision does clearly empower him to forbid the committee from carrying out an act that was about to be undertaken.

The order issued by the Chief Commissioner, which is the subject of this appeal, specifically barred the municipal committee from granting special pay or any other pecuniary advantage to any of its employees, among other things.

Thus, the prohibition was directed at the performance of a particular act, not at the mere passage of a resolution. The Court holds that once the performance of an act is prohibited, the committee loses the power to carry out that act, and any resolution directing the committee to perform the prohibited act lacks legal effect.

Mr. Mehta further contended that the Chief Commissioner’s power could be exercised only when the municipal committee was about to do something, and not to forbid conduct that might occur in the distant future. He cited the definition of “about to” in Stroud’s Judicial Dictionary and an English case that was mentioned therein.

In examining the phrase “about to” the Court referred to the definition supplied in Stroud’s Judicial Dictionary and to an English decision that was cited in that dictionary. The precise meaning of the expression inevitably depends on the situation in which it is employed, but it always carries a sense of anticipation. Accordingly, the petitioner’s counsel was correct in observing that section 232 does not empower the authorities listed in that provision to impose a blanket ban on the performance of an act or on a series of acts unless the authority actually anticipates that those acts will be carried out. In the present matter there is no difficulty in applying that principle because the order issued by the Chief Commissioner expressly stated that it had been presented to the Chief Commissioner as if the Municipal Committee of Delhi was, among other things, about to revise the existing salary scales of its employees, to create new posts, and to grant advance increments, special pay or other pecuniary benefits to certain existing employees. The evident motive for issuing that order was that the Municipal Committee was soon to be dissolved and the Delhi Corporation was to assume its functions. The Chief Commissioner therefore intended to prevent the Committee from entering into any commitments that would bind the successor corporation. A review of the Committee’s minutes and other records for the relevant period confirms that the Committee was considering numerous proposals concerning the emoluments of its staff and that the Chief Commissioner must have been aware of those proposals.

After making those observations, the petitioner’s counsel argued that, when properly interpreted, section 232 only permits the Chief Commissioner to suspend the implementation of any resolution or order of the Committee, and does not forbid the Committee from passing a resolution. On that basis he submitted that the Committee was fully empowered to adopt the resolutions dated 1 November and 8 November 1957. To support this position he referenced three decisions of the Punjab High Court: Mistri Mohammad Hussain v. Municipal Committee, Sialkot; Lahore Municipality v. Jagan Nath; and Mahadeo Prasad v. United Provinces Government. None of those authorities bolsters his case, and in fact one of them contradicts his argument. In the first decision, the Deputy Commissioner ordered the suspension of a resolution passed by a municipal committee that authorized the construction of a platform, even though the platform had already been built. To give effect to the suspension, the Committee, acting under section 172, ordered the demolition of the platform. The High Court held that because the platform could not be said to have been constructed without the prior sanction, it could not be ordered to be demolished under section 172. In the second decision, the High Court, following the reasoning of the first case, held that under section 232 the Deputy Commissioner is empowered to prohibit the performance of an act or to suspend the execution of a resolution before the act is performed or the resolution is carried out. In the third case, the Allahabad High Court, while dealing with several provisions, was called upon to interpret section 34(1) of the Uttar Pradesh Municipalities Act, 1916. That provision allowed the District Magistrate to prohibit the execution or further execution of a resolution passed by a municipal committee. The Court observed that this power was not intended to be exercised in anticipation of an act that was merely about to be done, thereby limiting its scope. Accordingly, the Court considered that the limitation identified in that decision was directly applicable to the present dispute.

The Court observed that the provision under discussion did not, unlike the corresponding provision in an earlier statute, empower the District‑Magistrate to issue an order in anticipation of an act that was about to be performed. Consequently, the present case could not be treated as the same as the earlier case and was therefore distinguishable. The Court then turned to the objection raised by counsel for the petitioners, who argued that the Municipal Committee had not been afforded a chance to show cause against the order issued by the Chief Commissioner, as required by section 235 of the Punjab Municipal Act. The Court noted that section 235 is intended to apply only when an order is made by an authority that is subordinate to the State Government, and it does not extend to orders issued directly by the State Government itself, which in this case was the Chief Commissioner. Nevertheless, the petitioners maintained that the core purpose of section 235 is to ensure that the Committee is heard, and that this hearing requirement cannot be ignored even when the original order issued under section 232 originates from the State Government. According to that submission, the failure to provide such a hearing rendered the order void and ineffective. To support this position, the petitioners relied on the decision in Abdul Gaffoor v. State of Madras, a case in which an order of the Government was set aside because the affected party had not been given an opportunity to be heard.

In the Abdul Gaffoor case, the Municipal Committee had granted the petitioner permission to install an oil engine for his cinema under section 250 of the Madras District Municipalities Act, 1920, while rejecting a similar application from another respondent. The Government, invoking section 252 of the same Act, cancelled the Committee’s resolution and directed the municipality to immediately grant permission to the second respondent. The High Court struck down the Government’s order on the ground that it could not be made without first giving the petitioner an opportunity to explain himself, as mandated by the first proviso to section 36 of that Act. The Court held that the Government’s failure to comply with the hearing requirement invalidated the order. The present Court, however, found that the Punjab Municipal Act contains no provision analogous to the one in the Madras legislation that obliges the Government to afford a hearing to every person affected by its order. Section 235 of the Punjab Act only requires the State Government to give a hearing opportunity to the municipality itself and to no other party. Moreover, the Committee did not claim any grievance regarding the Government’s alleged failure to provide the hearing contemplated by section 235. The Court further explained that an order made under section 232 becomes effective immediately and its operation does not depend on the procedural steps outlined in section 235. When such an order is issued by an authority other than the State Government, that authority must report the order to the State Government, although the order itself remains operative.

It was observed that even though the authority making the order was bound to submit a report, the order itself was not rendered inoperative or merely preparatory. The order had to be implemented by the Committee. The Court noted that the procedure required by section 235 need not be completed before an order could be considered final; however, the lack of finality did not invalidate an order issued under section 232. Accordingly, such an order, unless it was later modified or set aside by the State Government, remained legally effective and binding upon the Committee. The Committee therefore could accept the order and could disregard the State Government’s failure to comply with the provisions of section 235. Since section 235 did not obligate the authorities to give an opportunity to any persons affected by the order other than the Municipality, the petitioners could not successfully contend that the order was defective. The judgment previously relied upon could therefore not aid them. Moreover, the Court reiterated that section 235 was entirely inapplicable in the present case because the order under discussion had been issued by the Chief Commissioner. The Court further explained that, according to the Chief Commissioner, neither the Chief Commissioner nor the State Government could invoke section 232 of the Act, which was a general provision; instead, they could act only under section 236, subsection L2Sup./64-10 read with subsection (1), a special provision that dealt with the powers of the State Government. The Court reproduced the relevant text of that provision: “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.” The Court then compared this provision with section 232 and observed that, although there was some overlap when the words “State Government” were read in place of “Commissioner” in section 232, the scope of the two provisions was not identical. The Court explained that the overlap arose because both provisions were contained in an Act originally passed in 1911 for the former Province of Punjab and were later applied to the erstwhile Province of Delhi by virtue of the Delhi Laws Act, 1912, with certain modifications. In its original form, the power under section 232 could not be exercised by the Provincial Government. It was only after the amendment of section 232 that the terms “the Provincial Government of Delhi” and subsequently “the State Government of Delhi” had to be inserted in place of the word “Commissioner” in section 232. As a result, the two provisions derived their contemporary applicability from those legislative changes.

In this case the Court observed that, because of the overlap between the two sets of provisions as they apply to the State of Delhi, two distinct sources of authority – one under section 232 and another under section 235 – became available to the State Government, which was therefore free to rely on either source. Counsel for the respondent, Mr Mehta, contended that the only proper provision for the authorities to act was section 42, arguing that reliance on that provision rendered section 232 inapplicable. Section 42 authorises a Deputy Commissioner to examine extravagant expenditure by the Committee and to order a reduction in the remuneration of any of its employees, but the Court noted that such action cannot be taken in anticipation; the petition raised no ground concerning this limitation. The Court clarified that the present dispute centred on whether the State Government possessed the competence to issue an order of the kind made by the Chief Commissioner on 30 October 1956. The Court held that the provision relied upon by the Chief Commissioner could not have been invoked by him and therefore could not be regarded as a special provision that excluded the operation of section 232. Moreover, the provision could not be interpreted so as to deprive the authorities mentioned in section 232 of the power to prohibit, in anticipation, an action such as increasing the emoluments of their employees. Consequently, the Court was satisfied that the Chief Commissioner’s order dated 30 October 1956 was perfectly lawful and, in view of that order, the Committee was not authorised to sanction any allowance to its employees thereafter. The resolution adopted by the Committee on 1 November 1957 was therefore beyond its jurisdiction, and the Commissioner of the Corporation could not rely upon it as a basis for granting a allowance of Rs 20 per month to any graduate employee of the Municipal Committee who had not previously received such allowance. Accordingly, the Commissioner’s order dated 5 November 1958 was held to be illegal, and no question of discrimination arose. The petition was dismissed, and the Court declined to make any order as to costs.