Case: The Municipal Corporation Bhopal, M.P Vs. Misbahul Hasan and Ors

discloses that the High Court had itself considered it necessary to hear the State Government. It had, therefore, given time to the State Counsel, by an order dated 16th April, 1970, to file a return to the petition of the employee. But, the State Counsel had neither filed any return nor put in any appearance. Thus, the State had obtained due opportunity to oppose the petition, but it had not chosen to do so. Therefore, we are unable to entertain any such objection at this stage.9. Another question attempted to be raised before us, by the learned Counsel for the State of Madhya Pradesh, was based on assertion which were neither made in the High Court by any party nor in the High Court by any party nor in this Court in the two Special Leave Petitions. The submission rests on materials said to exist on the reports of the State Government which, it was stated, show that the proposal had actually come from the Administrator himself, that the particular amendment sought be made by the Government. If this was the correct position, the State Counsel should have appeared before the High Court and placed the whole record before the Court so that the facts which had a material bearing on the question whether the procedure laid down by S.432 of the Act had been followed in substance or spirit or not, may be gone into and decided.10. The High Court had proceeded on the assumption that the procedure laid down in S.432 of the Act was applicable. Learned Counsel for the Corporation also made his submissions primarily on that assumption. If that procedure had been really application, we think that the question whether the object of that procedure had been served and whether the Corporation could forego its right to make a representation or not would have deserved serious consideration provided it was supported by evidence which disclosed that there was substantial compliance with S.432 of the Act.11. After having heard Counsel for both sides, we are unable to hold that this is a case governed by the procedure laid down in S.432 of the Act at all. That procedure is only applicable where there is an existing bye law which appears to the Government to stand in need of modification or repeal wholly or in part. It is only then that the Government had to cause its reasons, for entertaining the opinion that the bye law in question should be modified or repealed, to be communicated to the Corporation. We are not at all satisfied about the exact position of the Ailan No.30 of 1947. It has not been shown to us, by references to the relevant records and provisions, that this Alian could be deemed to be a bye law as contemplated by the Act. It seems that the Corporation was aware of this defect because the main argument on behalf of the Corporation itself before the High Court was that it was a rule made by the Government and not that S.432 was applicable and substantially complied with. And, the main argument on behalf of the State Government before us now also is that the impugned notification is covered by S.433 of the Act. In view of S.427 (1 C) (b) of the Act, the High Court had held that, having regard to the specific provisions on the subject, the general rule making power under S.433 of the Act was inapplicable to the subject matter.12. Assuming, however, that the modification of the age of retirement could be made by a rule made under S.433 of the Act and not merely by a bye law, as contemplated by the Act, we find that a condition precedent for an argument of a rule has not been followed here. S.433 of the Act enacts. "The State Government may after previous publication in the Gazette make rules for the purpose of carrying into effect the provisions of this Act". S.24 of the Madhya Pradesh General Clauses Act, 1957, lays down:"24. Provisions applicable to makeing of rules or bye laws, etc. after previous publication Where, by any Madhya Pradesh Act, a power to make rules or bye laws is expressed to be given subject to the condition of the rules or bye laws being made after previous publication, then the following provisions shall apply, namely:(a) The authority having power to make the rules or bye laws shall, before making them, publish a draft of the proposed rules or bye laws for the information of persons likely to be affected thereby;(b) The publication shall be made in such manner as that authority deems to be sufficient, or if the condition with respect to previous publication so requires, in such manner as the Government prescribes;(c) There shall be published with the draft a notice specifying a date on or after which the draft will be taken into consideration.(d) The authority having power to make the rules or bye laws and where the rules or bye laws are to be made with the sanction, approval or concurrence of another authority, that authority also shall consider any objection or suggestion which may be received by the authority having power to make the rules or bye laws from any person with respect to the draft before the date so specified;(e) the publication in the Official Gazette of a rule or bye law purporting to have been made in exercise of a power to make rules or bye laws after previous publication shall be conclusive proof that the rule or bye law has been duly made".13. The legislative procedure envisaged by S.24, set out above, is in consonance with notion of justice and fairplay as it would enable persons likely to be affected to be informed so that they may take such steps as may be open to them to have the wisdom of a proposal duly debated and considered before it becomes law. This mandatory procedure was also not shown to have been complied with here.

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

Explanation:
1[ds]6. It is admitted by both sides that at the relevant time, the powers of the Corporation were vested in the Administrator under the provisions of S.132 sub-s. (1) of the Act. The only question, according to the Corporation is whether the Administrator, acting as the Corporation, could not forego the right of the Corporation to make any representation with regard to a proposal of the Government to amend a bye law. In other words, the modification or amendment of a bye law under S.432 of the Act was a matter of concern only to the Government and to the Corporation and to nobody else. If, therefore, there was any infringement of its technical procedural requirements, it was only for the Corporation and nobody else, according to this contention, to raise the objection. The broad proposition put forward before us is that the requirements of a procedure intended for the benefit of a party could be dispensed with if that party itself chooses that this should be done. It is pointed out that the only object of the procedure provided by S.432 was that the proposals of the Government may be duly considered by the Corporation so as to enable it to represent its views. There was no obligation upon the Corporation to make a representation. If the Corporation did not choose to make a representation, after the Government had sent its reasons for its opinion to the Corporation and had asked for the representation within a prescribed period, the failure of the Corporation to make any representation would, far from depriving the Government of the power to issue a notification modifying or repealing a bye law wholly or in part in accordance with its opinion, enable it to do so. The mere order in which a proposal is made and assent to it is given by the Corporation, it was urged, should not make any difference as there was substantial compliance with prescribed procedure.The High Court had proceeded on the assumption that the procedure laid down in S.432 of the Act was applicable. Learned Counsel for the Corporation also made his submissions primarily on that assumption. If that procedure had been really application, we think that the question whether the object of that procedure had been served and whether the Corporation could forego its right to make a representation or not would have deserved serious consideration provided it was supported by evidence which disclosed that there was substantial compliance with S.432 of the Act.After having heard Counsel for both sides, we are unable to hold that this is a case governed by the procedure laid down in S.432 of the Act at all. That procedure is only applicable where there is an existing bye law which appears to the Government to stand in need of modification or repeal wholly or in part. It is only then that the Government had to cause its reasons, for entertaining the opinion that the bye law in question should be modified or repealed, to be communicated to the Corporation. We are not at all satisfied about the exact position of the Ailan No.30 of 1947. It has not been shown to us, by references to the relevant records and provisions, that this Alian could be deemed to be a bye law as contemplated by the Act. It seems that the Corporation was aware of this defect because the main argument on behalf of the Corporation itself before the High Court was that it was a rule made by the Government and not that S.432 was applicable and substantially complied with. And, the main argument on behalf of the State Government before us now also is that the impugned notification is covered by S.433 of the Act. In view of S.427 (1 C) (b) of the Act, the High Court had held that, having regard to the specific provisions on the subject, the general rule making power under S.433 of the Act was inapplicable to the subject matter.The legislative procedure envisaged by S.24, set out above, is in consonance with notion of justice and fairplay as it would enable persons likely to be affected to be informed so that they may take such steps as may be open to them to have the wisdom of a proposal duly debated and considered before it becomes law. This mandatory procedure was also not shown to have been complied with here.