25 September 1964
Supreme Court


Case number: Writ Petition (Civil) 33 of 1964






DATE OF JUDGMENT: 25/09/1964


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