Case: Subhas Chandra And Others Vs. Municipal Corporation Of Delhi And Another

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 non-compliance by the State Government with the provisions of S. 235. Since S. 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 that 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.15. 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. subs. (2) read with sub-s. (1) which is a special provision dealing with the powers of the State Government. The provisions 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 reason which would in its opinion justify an order by the Deputy Commissioner under Section 232."16.Comparing them with those of S. 232 it would he apparent that though there is a certain amount of overlapping when we read in S. 232 the words State Government for Commissioner the ambits of the two provisions are not quite the same. The overlapping is due to the fact that the two provisions are contained in an Act which was passed in 1911 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.17. 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 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.18. 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.19.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]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 ofthe 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 Clause 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 subs. (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 theis 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 things, 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 resolution passed by it to the effect that the act be done, can have no legalthis 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 aboutof 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 whereunder 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 thusdecision 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 non-compliance by the State Government with the provisions of S. 235. Since S. 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 that 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 Chiefthem with those of S. 232 it would he apparent that though there is a certain amount of overlapping when we read in S. 232 the words State Government for Commissioner the ambits of the two provisions are not quite the same. The overlapping is due to the fact that the two provisions are contained in an Act which was passed in 1911 for being applied in the former Province of Punjab and that it was by virtue ofthe 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 eitherground has been raised in the petition in regard to this. That apart, here we are concerned with the competence of the State 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.