Subhas Chandra & Ors Vs. Municipal
Corporation of Delhi & ANR  INSC 201 (25 September 1964)
25/09/1964 MUDHOLKAR, J.R.
GAJENDRAGADKAR, P.B. (CJ) WANCHOO, K.N.
CITATION: 1965 AIR 1275 1965 SCR (1) 350
Punjab Municipal Act (Punj. III of 1911), ss. 232,
235 and 236 Scope of.
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 norational 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 Commissioner being thus illegal, no
question of discrimination arises and the petition should be dismissed. [359
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].
ORIGINAL JURISDICTION Writ Petition No. 33 of
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
The Judgment of the Court was delivered by
Mudholkar J. Eleven clerical employees serving the Corporation 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
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 receipt 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
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 discriminatory 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
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
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 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 applicable
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 Commissioner 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
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.
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.  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 install 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 install 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
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
Commissioners 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 Commissioner 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.