Appeal No 2340 of 1966
Appeal from the judgment and order dated October 7 1966 of the Bombay High Court Nagpur Bench in Special Civil Appli cation No 940 of 1965
M C Setalvad N section Bindra and R H Dhebar for appellant No 1
A section Bobde and section G Kukdey for respondent No 1
M M Kinkhede G L Sanghi and A G Ratnaparkhi for respondents Nos
3 16 19 31 33 34 36 45 47 53 55 and 57
The Judgment of the Court was delivered by Bachawat J
This appeal arises out of a writ petition filed by respondent No 1 before the Nagpur Bench of the Bombay High Court challenging the show cause notice dated July 21 1965 and the order dated September 29 1965 superseding the municipal corporation of the city of Nagpur
In July 1962 the term of office of the present Councillors commenced
On July 21 1965 the Government of Maharashtra issued a notice to respondent No 1 the Mayor of the Nagpur Municipal Corporation asking him to show cause why the corporation should not be superseded
On August 1 1965 respondent No I filed his reply to the show cause notice
On September 29 1965 the State Government passed the impugned order superseding the corporation under sections 408 and 409 of the City of Nagpur Corporation Act 1948 C P  Berar Act 11 of 1950
On September 30 1965 respondent No I filed a writ petition challenging the show cause notice and the order of supersession
The High Court allowed the writ petition and quashed the order of supersession
The High Court held that the State Government exercised its power under section 408 on grounds which were not reasonably related to its legitimate exercise and the finding upon which the order was passed was rationally impossible on the materials before the State Government
The State of Maharashtra now appeals to this Court on a certificate granted by the High Court
By an order of this Court the Administrator of the City of Nagpur appointed under the order of supersession of September 29 1965 has been joined as the second appellant
585 Section 408 of the City of Nagpur Corporation Act 1948 is in these terms 408
1 If at any time upon representations made or otherwise it appears to the State the Corporation is not competent to perform or persistently makes default in the performance of the duties imposed on it by or under this Act or any other law for the time being in force or exceeds or abuses its powers the State Government may  after having given an opportunity to the Corp oration to show cause why such an order should not be made or if it appears to the State Government that the case is one of emergency forthwith issue an order directing that all the Councillors shall retire from office as and from such date as may be appointed and declare the Corporation to be superseded
Such order shall be published in the Gazette and the reasons for making it shall be stated therein
2 Notwithstanding anything contained in sections 17 and 20 all Councillors shall vacate their office from the date mentioned in any order under sub section 1
The consequence of supersession of the corporation under section 408 is that all its members vacate their office all powers and duties of the corporation the Standing Committee and the chief executive officer may be exercised by the administrator of the city appointed by the State government and all property vested in the corporation vests in the administrator section 408
The conditions for the exercise of he power under section 408 are clearly stated in the section
It must appear to the State government that the corporation is not competent or persistently makes default in the performance of the duties imposed on it by or under the Act or any other law for the time being in force or exceeds or abuses its powers
Except in cases of emerge icy the State government must give to the corporation an opportunity to show cause why the order under the section should not be made
If on a consideration of the explanation submitted by the corporation the State government considers that there is no ground for making the order the Government may drop the proceeding
Otherwise it may issue an order declaring the corporation to be superseded and directing that all the Councillors shall retire from office
The order must be published in the Gazette and the reasons For making it must be stated therein
There is no appeal to the court from the order under section 408
in a writ application the court will not review the facts as an appellate body
But the order is liable to be set aside if no reasonable person on a proper consideration of the materials before the State government could form the opinion that the corporation is not competent to perform or persistently makes default in the performance of the duties imposed on it by or under this Act or any other law for the 586 time being in force or exceeds or abuses its powers
Likewise the order is liable to be set aside if it was passed in bad faith or if in a case which was not one of emergency due opportunity to show cause was not given to the corporation
In all such cases the order is in excess of the statutory power under section 408 and is invalid
On the question whether the order under section 408 is an administrative or quasi judicial act our attention was drawn to the decisions in Municipal Committed Karali and Another vs The State of Madhya Pradesh1 and Shri Radheshyam Khare and Anr
vs The State of Madhya Pradesh and Others2 These cases turned on the construction of sections 53A and 57 of the C P  Berar Municipalities Act 1922 Act 11 of 1922
The point whether the order under section 408 is quasi judicial or administrative act is not very material for it is common groundthat the present case was not one of emergency and the State government was bound to give opportunity to the corporation to show cause why the order should not be made
The order dated September 29 1965 was in these terms Whereas it is reported to the Government of Maharashtra that the Municipal Corporation of the City of Nagpur hereinafter referred to as the Municipal Corporation  constituted under the City of Nagpur Municipal Corporation Act 1948 CP  Berar Act 11 of 1950 hereinafter
referred to as the said Act  a has since the present Councillors entered upon their office planned its expenditure on the basis of uncertain receipts as shown below that is to say Year Receipts in budget as Actual of previous passed by Corporation year Rs in lacs Rs in lacs
1963 64 351 173 1964 65 221 190 1965 66 258 200 to 215 lacs anticipated
and without exercising the proper controls provided by or under the said Act has allowed its financial position to deteriorate rapidly and seriously to such an extent that the free cash balance of Rs 581 lacs approximately in March 1962 was reduced to Rs 53000 approximately on the 12th July 1965 and that the Corporation had no funds even to 1 AIR 1958 MP 323
2 587 disburse the salaries of its officers and servants as is noticed from the Resolution of the Municipal Corporation No 98 dated the 4th September 1965 and b has neglected to under take the improvement of water supply and to provide a sufficient supply of suitable water for public and private purposes And whereas an opportunity was given to the Municipal Corporation to show cause why in the aforesaid circumstances an order of supersession under sub section 1 of section 408 of the said Act should not be made  And whereas after considering the reply of the Municipal Corporation and subsequent it submissions made by it the Government of Maharashtra is of the opinion that the Municipal Corporation is not competent to perform the duties imposed on it by or under the said Act Now  therefore in exercise of the powers conferred by sub section 1 of section 408 and subsection 1 of section 409 of the said Act and of all other powers enabling it in this behalf the Government of Maharashtra for the reasons specified aforesaid hereby 1 directs that all the Councillors of the Municipal Corporation shall retire from office as and from the 1st day of October 1965 2 declares the Municipal Corporation to be superseded from that date and 3 appoints Shri D H Deshmukh to be the Administrator of the City of Nagpur From the order it appears that there were two grounds on which the State government formed the opinion that the corporation was not competent to perform the duties imposed on it by or under the Nagpur Municipal Corporation Act 1948
Annexure 2 to the show cause notice dated July 21 1965 Set out the following facts relatable to the first ground mentioned in paragraph 1a of the order II
1 In March 1962 the free cash balance with the Corporation was Rs 5
81 lacs
On 12 7 65 the opening cash balance of the Corporation as Rs 53821
The Statement A  appended hereto will reveal the financial
position of the Corporation
On the basis of average daily receipts the Corporation will have an opening balance of Rs 7 74 lacs on 1 8 65 as against that their immediate liabilities are of the order of Rs 30 84 lacs It is 588 thus clear that the Corporation is heading for a grave
financial crisis and it will not be in a position even to pay fully the salaries and wages of their permanent and temporary employees
Under Chapter IV of the City of Nagpur corporation Act the Corporation is required to pay salaries to their officers and servants as provided for in Sections 47 49 and 50 of the said Act
The liability arising out of the payment of salaries and wages is the third charge on the municipal fund the
previous two charges being repayment of all loans payable by the Corporation under Chapter IX of that Act and the second being the payment for discharge of all liabilities imposed on the Corporation in respect of debts  and obligations and contracts of  the Municipality of Nagpur to whom the Corporation is a successor
It is assumed that such liabilities do not any  longer exist
Thus the payment of salaries etc is the second charge on the municipal fund and it is very obvious from the figures in Statement A  that the Corporation is not in a position to discharge that liability
 The opinion of the State government so far as it is based on the first ground cannot be supported
The show cause notice did not mention the charge that the Councillors planned the expenditure on the basis of uncertain receipts or that they did not exercise proper controls provided by or under the Act
No opportunity was given to the corporation to explain the charge
Without giving such an opportunity the State government could not lawfully and that the charge was proved
The cash balances of the cor poration vary from day to day
No reasonable person could possibly come to the conclusion hat the financial position of the corporation had deteriorated from the fact that the cash balances were Rs 581000 in March 1962 and Rs 53000 on July 12 1965
The statement that the corporation had no funds to disburse the salaries of its officers and servants had no factual basis
As a matter of fact the corporation paid the salaries
The dearness allowance was not paid because the bills were not scrutinized  The resolution dated September 4 1965 referred to in the order was passed long after the show cause notice was issued and the corporation was not given an opportunity to explain it
The resolution did not say that the co  oration had no  funds even to disburse  the salaries of its officers and servants
The corporation resolved to raise a loan of Rs 15 lacs from the State Government but the loan was not raised
The High Court also pointed out that many of the statements in the statement A referred to in the show cause notice were factually incorrect
The opinion of the State government based on the first ground cannot be sustained firstly because the corporation had no opportunity to show cause against the charge and secondly because no reasonable Person on the materials 589 before the State government could possibly form the opinion that the charge was proved The second
ground referred to in paragraph 1 b of the order dated September 29 1965 is more serious
Section 571k of the City of Nagpur Corporation Act 1948 provides that the corporation shall make adequate provision by any means or measures which it may lawfully use or take for   k the management and maintenance of all municipal water works and the construction and maintenance of new works and Means for providing sufficient supply of suitable water for public and private purposes
 The charge was that the corporation neglected to undertake the improvement of water supply and to provide a sufficient supply of suitable water for public and private purposes
The relevant facts were set out in annexure 1 11 to 4 and annexure 11 to the show cause notice
It is  common ground that the water supply of the city of Nagpur was inadequate
The population of the city was fast increasing and it was the duty of the corporation to augment the supply
The improvement of the head works at the Kanhan Stage III and also the re modelling and redesigning of the distribution system was necessary for augmenting andimproving the water supply
The work at Kanhan Stage111 commenced in 1964 and
for that purpose the Government sanctioned an ad hoc loan of Rs 21 lacs
The cost of the remaining work at Kanhan Stage III and the work of re modelling and redesigning of distribution system was estimated to be Rs 70 lacs
The corporation could not meet the cost without
raising a loan
II had the power to raise a loan for this purpose with the previous sanction of the State government under section 90 of the City of Nagpur Corporation Act 1948
The corporation was not in a position to raise 1 he loan in the open market unless the repayment of the loan was guaranteed by the Government
It approached the
Government to give the guarantee
The Government was willing to give the guarantee if two conditions were fulfilled 1 the co oration would meter the water supply immediately and 2 in the annual budget the budget of the water works department for the supply of water would be shown separately
The Government was not willing to give the guarantee unless conditions were fulfilled
In MayJune965 these conditions were communicated by the minister in charge to the municipal commissioner and the chairman of the standing committee
On June 5 1965 the standing committee resolved i The Corporation may raise in the open market loan of Rs 70 lacs for the purpose of completing the Kanhan Stage III head works and provision of Alteration plant and for re modelling and redesigning the water distribution system in Nagpur Corporation are
590 ii The principle of universal meterisation should be accepted and all water connection in future should only be in the meter system  iii The principle of providing a separate subsidiary budget for water supply should be accepted
 At a meeting held on June 30 1965 the corporation appears to have disapproved of the standing committee s resolution regarding the principle of universal meterisation and setting up a separate subsidiary budget for water supply though no specific resolution to that effect was passed
A meeting of the corporation on July 5 1965 was convened to discuss the matter of raising a loan of Rs 70 lacs
In the notice calling the meeting the following office note appeared at the foot of the relevant agenda In this connection the State Government demanded the following two assurances from the Corporation 1 Nagpur Corporation should meter the water supply immediately
2 In the annual budget of the Corporationbudget of the water works department should be shown separately for supply of water
In the said budget provision for payment of loans sinking
fund and future increase in expenditure should be made separately
After making these provisions the Corporation can expend the money for other works
 On July 5 1965 the meeting was adjourned
On July 12 1965 the corporation passed the following resolution The Corporation gives its approval to the raising of a loan of Rs 70 lakhs in the next three years
Such a loan comprising of Rs 24 lakhs for Kanhan 3 Stage scheme and Rs 45 lakhs for improvement in the Distribution System necessitated in view of the additional 29 million gallons of water that will be available after completion of the Kanhan 3 Stage Scheme
The office should take necessary action to obtain the guarantee of the State Government for raising this loan in the open market in accordance with the above Resolution
 The resolution is not printed in the paper book but an agreed copy of the resolution was filed before us
The State government was of the view that by the resolution dated July 12 1965 the corporation refused to accept the two conditions mentioned in the office note and thereby made it impossible for the corporation to meet the cost of construction of the head works and the
remodelling and 591 redesigning of the distribution system and to provide a sufficient supply of water for the public and private purposes
The corporation could not raise the loan without the Government guarantee and the government could not reasonably guarantee the loan unless the two conditions of universal meterisation and the separate budget for the water supply were accepted
The two conditions were reasonable
The adoption of universal meterisation would have curtailed the wastage of water and secured adequate revenues necessary for the repayment of the loan and the setting up of an adequate sinking and development fund for the water supply
A separate budget for the supply of water would have ensured that the receipts from the supply of water were a located to the expenditure on the water supply scheme
The answer of the corporation was twofold
The corporation said firstly that the resolution dated July 12 1965 neither accepted nor rejected the two conditions and the question of accepting the conditions was left for future negotiations with the government after the government would be approached for the sanction of the loan under section 4202r of the City of Nagpur Corporation Act 1948 read with City of Nagpur Corporation Loans Rules 1951
The corporation said secondly that the cost of immediate meterisation of the old connections would be Rs 52 lacs and it was impossible for the corporation to raise this sum nor could it lawfully divert any portion of the loan of Rs 70 lacs for meeting this cost
The High Court accepted the contention that at the meeting held on July 12 1965 the corporation had resolved that the matter with regard to the conditions imposed by the government for giving the loan should be left for further negotiations with the government
But it is to be noticed that the resolution dated July 12 1965 did riot state that there should be any further negotiations with the government on the matter nor did it disclose the financial problem with regard to meterisation or the basis upon which further negotiations should take place
On June 30 1965 he corporation had talked out the recommendation of the standing committee with regard to the universal meterisation and separate budget
In this background the State government
could reasonably hold that the passing of the resolution excluding the office note amounted to virtual rejection of the conditions mentioned in the note
The High Court was in error in accepting the first contention
The High Court was also in error in holding that the Govern ment passed the order of September 29 1965 without considering that universal meterisation posed a formidable problem which could not be overcome without a loan of Rs 52 lacs in addition to the loan of Rs 70 lacs
The resolution of July 12 1965 did not state that the corporation wanted an additional loan of Rs 52 lacs for meeting the cost of universal meterisation
Even in the answer to the showcause notice the corporation did not say that it wanted to raise 592 an additional loan of Rs 52 lacs
The answer stated that the raising of this sum for the present was an impossibility
There is nothing to show that the State government would not have guaranteed repayment of this additional loan or that it was not possible to raise the loan backed by a government guarantee
In the writ petition respondent No1 gave a summary of the reply to the show cause notice
But there was no specific averment in the petition supported by affidavit that Rs 52 lacs was necessary for the meterisation and that the raising of this sum was an impossibility
That is why the point was not dealt with in the return to the writ petition
Even assuming that the meterisation would cost Rs 52 lacs there is nothing to show that the government would not have guaranteed the loan for this sum or that the corporation could not have raised the loan with this guarantee
Moreover if the Government was right in assuming that the corporation had refused to entertain the proposal of meterisation the question of raising funds for the meterisation would not arise and would be irrelevant
The government passed the order after taking into consideration the reply to the show cause notice
There were materials be ore the State Government upon which it could find that the corporation had neglected to undertake an improvement of water supply and to provide a sufficient supply of water for private and public purpose
On the basis of this finding the State government could form the opinion that the corporation was not competent to perform the duties imposed on it by or under the Act
Mr Bobde contended that the opinion of the State government was based on two grounds arid as one of them is found to be non existent or irrelevant the order is invalid and should be set aside
The cases relied on by him may be briefly noticed
In a number of cases the Court has quashed orders of preventive detention based on several grounds one of which is found to be irrelevant or illusory
After reviewing the earlier cases Jagannadhadas J in Dwarka Dass Bhatia vs The State of Jammu and Kashmir 1 said The principle underlying all these decisions is this
Where power is vested in a statutory authority to deprive the liberty of a subject on its subjective satisfaction with reference to specified matters if that satisfaction is stated to be based on a number of grounds or for a variety of reasons all taken together and if some out of them are found to be non existent or irrelevant the very exercise of that power is bad
This is so because the matter being one for subjective satisfaction it must be properly based on all the reasons on which it purports to be based
If some out of them are found to be non existent or irrelevant the Court cannot pre dicate what the subjective satisfaction of the said authority would have been on the exclusion of those grounds or 1  955
593 reasons
To uphold the validity of such an order in spite of the invalidity of some of the reasons or grounds would be to substitute the objective standards of the Court for the subjective satisfaction of the
statutory authority
In applying these principles however the Court must be
satisfied that the vague or irrelevant grounds are such as if excluded might reasonably have affected the subjective satisfaction of the appropriate authority
It is not merely because some ground or reason of a comparatively un essential nature is defective that such an order based on subjective satisfaction can be held to be invalid
The Court while anxious to safeguard the personal liberty of the individual will not lightly interfere with such orders In Maursinha vs State of Madhya Pradesh1 the Madhya Pradesh High Court following the principle of the preventive detention cases held that an order of supersession of the municipality under section 208 of the Madhya Bharat Municipal ties Act 1954 based on several grounds most of which were found to be irrelevant was invalid
In Dhirajlal Girdharilal vs Commissioner of Income tax2 Mahajan C J said with reference to the order of an income tax tribunal The learned Attorney General frankly conceded that it could not be denied that to a certain extent the Tribunal had drawn upon its own imagination and had made use of a number of surmises and conjectures in reaching its result
He however contended that eliminating the irrelevant material employed by the Tribunal in arriving at its conclusion there was sufficient material on which the finding of fact could be supported
In our opinion this contention is not well founded
It is well established that when a court of facts acts on material partly relevant and partly irrelevant it is impossible to say to what extent the mind of  the court was affected by the irrelevant material used by it in arriving at its finding
Such a finding is vitiated because of the use of inadmissible material and thereby an issue of law arises
 In State of Orissa vs Bidyabhushan Mahapatra3 an administrative tribunal in a disciplinary proceeding against a public servant found the second charge and four out of the five heads under the first charge proved and recommended his dismissal
The Governor after giving him a reasonable opportunity to show cause against the proposed punishment dismissed him
The High Court held that the findings on two of the heads under the first charge could not be sustained as in arriving at those findings the tribunal had violated rules of natural justice
It held that the second charge and only 1 AIR 1958 MP 397 2 AIR 1956 SC 271 273
3 1963 Supp
I SCR 618665 6
594 two heads of the first charge were established and directed the Governor to reconsider whether on the basis of these charges the punishment of dismissal should be maintained
On appeal this Court set aside the order of the High Court
In the course of the judgment Shah J observed If the High Court is satisfied that if some but not all of the findings of the Tribunal were unassailable  the order of the Governor on whose powers by the rules no restrictions in determining the appropriate punishment are placed was final and the High Court had no jurisdiction to direct the Governor to review the penalty for as we have already observed the order Of dismissal passed by a competent authority on a public servant if the conditions of the constitutional prote ction ha been complied with is not justiciable
Therefore if the order may be supported on any finding as to substantial misdemeanour for which the punishment can lawfully be imposed it is not for the Court to consider whether that ground alone would have weighed with the authority in dismissing the public servant
The Court has no jurisdiction if the findings of the enquiry officer or the Tribunal prima facie make out a case of misdemeanour to direct the authority to reconsider that order because in respect of same of the findings but not all it appears that there had been violation of the rules of natural justice
 The principle underlying these decisions appears to be this
An administrative or quasi judicial order based on several grounds all taken together cannot be sustained if it be found that some of the grounds are non existent or irrelevant and there is nothing to show that the authority would have passed the order on the basis of the other relevant and existing grounds
On the other hand an order based on several grounds some of which are found to be non existent or irrelevant can be sustained if the court is satisfied that the authority would have passed the order on the basis of the other relevant and existing grounds and the exclusion of the irrelevant or non existent grounds could not have affected the ultimate opinion or decision
Now the opinion of the State government that the corporation was not competent to perform the duties imposed on it by or under the Act was based on two grounds one of Which is relevant and the other irrelevant
Both the grounds as also other grounds were set out in paragraphs 1 and 2 read with annexures 1 and 2 of the showcause notice dated July 21 1965
Para 3 of the show cause notice stated And whereas the grounds aforesaid jointly as well as severally appear serious enough to warrant action under section 4081 of the said Act
The order dated September 29 1965 595 read with the notice dated July 21 1965 shows that in the opinion of the State government the second ground alone was serious enough to warrant action under section 4081 and was sufficient to establish that the corporation was not competent to perform its duties under the Act
The fact that the first ground mentioned in the order is now found not to exist and is irrelevant does not affect the order
We are reasonably certain that the State government would have passed the order on the basis of the second ground alone
The order is therefore valid and cannot be set aside
In the result the appeal is allowed the order of the High Court is set aside and the writ petition is dismissed
In all the circumstances there will be no order as to costs in this Court and in the court below
YP Appeal allowed


Summary:
By section 408 of the City of Nagpur Corporation Act 1948 the State Government may after giving an opportunity to the Corporation to show cause pass an order superseding the Corporation if it is of opinion that the Corporation is not competent or persistently makes default in the performance of the duties imposed on it by or under the Act
After the requisite show cause notice the State Government passed the impugned Order superseding the Nagpur Municipal Corporation
The High Court in a writ petition quashed the Order holding that the State Government exercised its power  under section 408 on grounds which were not reasonably related to its Legitimate exercise and that the finding upon which the Order was passed was rationally impossible on the materials before the State Government
On appeal to this Court HELDThe Order of supersession was valid and could not be set aside
iOf the two grounds on which the opinion of the State Government was based the first ground could not be sustained firstly because the Corporation had no opportunity to show cause against the charge and secondly because no reasonable person on the materials before the State Government could possibly form the opinion that the charge was proved
Regarding the second ground there were materials before the State Government upon which it could find that the Corporation was not competent to perform the duties imposed upon it
588H 592D In a writ application the court will not review the facts as an appellate body
But the Order of supersession is liable to be set aside as in excess of the statutory power under section 408 if no reasonable person on a proper consideration of the materials before the State Government will form the opinion that the Corporation is not competent to perform or persistently defaults in the performance of the duties imposed on it Me Order is also liable to be set aside if it was passed in bid faith or due opportunity to show cause was not given
585H iiThe Order cannot be set aside for the reason that one of the grounds is found to be non existent or irrelevant
The Order read with the show cause notice shows that in the opinion of the State Government the second ground by itself was serious enough to warrant action under s408
595 A B An administrative or quasi judicial Order based on several grounds all taken together cannot be sustained if it be found that some of the grounds are non existent or irrelevant and there is nothing to show that the authority would have passed the Order on the basis of the other relevant and 584 existing grounds
But an Order based on several grounds some of which are found to be non existent or irrelevant can be sustained if the Court is satisfied that the authority would have passed the Order on the basis of other relevant and existing grounds and the exclusion of the irrelevant or non existent grounds could not have affected the ultimate opinion or decision
594 E G Dwarka Das Bhatia vs State of Jammu and Kashmir 19651 SCR 948
Dhirajilal Girdharilal vs Commissioner of Income tax AIR 1956 SC 271 State of Orissa vs Bidyabhushan Mahapatra 1963 Supp
I SCR
648 and Naursinha vs State of Madhya Pradesh AIR 1958 MP 397
referred to