Case: S. L. Kapoor Vs. Jagmohan &amp; Ors

1. In exercise of the powers conferred by Sec. 12 of the Punjab Municipal Act 1911, as applicable to New Delhi, the Lt. Governor of the Union Territory of Delhi, by a notification dated September 29, 1979, appointed nine non-official members and four ex-officio members to the New Delhi Municipal Committee to hold office for a period of one year with effect from October 4, 1979. However, well before the expiry of the term for which the members were appointed, on February 27, 1980, the Lt. Governor, in exercise of the powers conferred by Section 238 (1) superseded the New Delhi Municipal Committee with immediate effect and appointed Shri P. N. Behl as the person who may exercise and perform all powers and duties of the New Delhi Municipal Committee until the said Committee was reconstituted.2. The preamble to the order of supersession recited that the Committee was incompetent to perform and had made persistent default in the performance of the duties imposed on it under the law and had further abused its powers, resulting in wastage of Municipal funds. Four instances or grounds were mentioned. The first ground was that a clause for the payment of a mobilisation advance of Rs. fifteen lakhs was included in the contract awarded to M/s. Tarspore and Co. for the construction of City Centre though such a clause did not find a place in the original contract with M/s. Mohinder Singh and Co. The contract we may mention here, had been awarded to M/s. Tarapore and Co. on the failure of M/s. Mohinder Singh and Co. to complete the work. It was alleged that the contract was awarded to Tarapore and Co., at an enhanced cost without the prior approval of the Lt. Governor. The inclusion of the clause relating to payment of mobilisation advance was also without the approval of the Lt. Governor. The second ground was that one B. K. Mittal was re-employed by the New Delhi Municipal Committee notwithstanding the advice of the Central Vigilance Commission that major penalty proceedings, should be initiated aganist him. The third ground was that although the Central Vigilance Commission advised the removal from service of V. P. Sangal, the Municipal Committee resolved to impose the minor penalty of stoppage of a few increments. The fourth ground was that the Municipal Committee created a number of posts including that of Director of Horticulture and appointed Shri Sharma to that post in spite of the directive of the Lt. Governor not to create posts unless the staffing pattern was studied by the Administrative Reforms Department.3. Two of the non-official members of the superseded New Delhi Municipal Committee, Shri S. L. Kapoor and another, filed Civil Writ Petitions in the Delhi High Court to quash the order of supersession dated February 27, 1980. The Writ Petitions were heard by a Full Bench of five Judges and were dismissed on May 9, 1980. S. L. Kapoor has preferred this appeal after obtaining Special Leave of this Court under Art. 136 of the Constitution.

Reasoning:
It is not always a necessary inference that if opportunity is expressly provided in one provision and not so provided in another, opportunity is to be considered as excluded from that other provision. It may be a weighty consideration to be taken into account but the weightier consideration is whether the administrative action entails civilis difficult to visualise the sudden and calamitous situations gloomily foreboded by the learned Attorney General where there would not be enough breathing time to observe natural justice, at least in a rudimentary way. A Municipal Committee under the Punjab Municipal Act is a public body consisting of both officials and non-officials and one cannot imagine anything momentous being done in a matter of minutes and seconds. And, natural justice may always be tailored to the situation. Minimal natural justice, the barest notice and the littlest opportunity, in the shortest time, may serve. The authority acting under Sec. 238 (1) is the master of its own procedure. There need be no oral hearing. It is not necessary to put every detail of the case to the Committee : broad grounds sufficient to indicate the substance of the allegations may be given. We do not think that even minimal natural justice is excluded when alleged grave situations arise under Sec. 238. If indeed such grave situations arise, the public interest can be sufficiently protected by appropriate prohibitory and mandatory action under the other relevant provisions of the statute in Sections 232 to 235 of the Act. We guard ourselves against being understood as laying down any proposition of universal application. other statutes providing for speedy action to meet emergent situations may well be construed as excluding the principle audi alteram partem.Thus on a consideration of the entire material placed before us we do not have any doubt that the New Delhi Municipal Committee was never put on notice of any action proposed to be taken under Sec. 238 of the Punjab Municipal Act and no opportunity was given to the Municipal Committee to explain any fact or circumstance on the basis (of which) that action was proposed. If there was any correspondence between the New Delhi Municipal Committee and any other authority about the subject matter or any of the allegations, if information was given and gathered it was for entirely different purposes. In our view, the requirements of natural justice are met only if opportunity to represent is given in view of proposed action. The demands of natural justice are not met even if the very person proceeded against has furnished the information on which the action is based, if it is furnished in a casual way or for some other purpose. We do not suggest that the opportunity need be a double opportunity that is, one opportunity on the factual allegations and another on the proposed penalty. Both may be rolled into one. But the person proceeded against must know that he is being required to meet the allegations which might lead to a certain action being taken against him. If that is made known the requirements are met.We disagree with the finding of the High Court that the Committee had the opportunity to meet the allegations contained in the order ofon the admitted or indisputable facts only one conclusion is possible and under the law only one penalty is permissible, the Court may not issue its writ to compel the observance of natural justice, not because it approves the non-observance of natural justice but because Courts do not issue futile writs. But it will be a pernicious principle to apply in other situations where conclusions are controversial, however slightly, and penalties arerequirement that justice should be seen to be done may be regarded as a general principle which in some cases can be satisfied only by the observance of the rules of natural justice or as itself forming one of those rules. Both explanations of the significance of the maxim are found in Lord Widgery C. J.s judgement in R.v. Home Secretary, Ex. P. Hosenball, (1977) 1 WLR 766,772, where after saying that "the principles of natural justice are those fundamental rules, the breach of which will prevent justice from being seen to be done" he went on to describe the maxim as "one of the rules generally accepted in the bundle of the rules making up naturalis the recognition of the importance of the requirement that justice is seen to be done that justifies the giving of a remedy to a litigant even when it may be claimed that a decision alleged to be vitiated by a breach of natural justice would still have been reached had a fair hearing been given by an impartial tribunal. The maxim is applicable precisely when the Court is concerned not with a case of actual injustice but with the appearance of injustice, or possibleour view the principles of natural justice know of no exclusionary rule dependent on whether it would have made any difference it natural justice had been observed. The non-observance of natural justice is itself prejudice to any man and proof of prejudice independently of proof of denial of natural justice is unnecessary. It ill comes from a person who has denied Justice that the person who has been denied justice is not prejudiced. As we said earlier where on the admitted or indisputable facts only one conclusion is possible and under the law only one penalty is permissible, the Court may not issue its writ to compel the observance of natural justice, not because it is not necessary to observe natural justice but because Courts do not issue futile writs. We do not agree with the contrary view taken by the Delhi High Court in the judgment under appeal.25. Every wrong action of a Municipal Committee need not necessarily lead to the inference of incompetence on the part of the Committee or amount to an abuse of the powers of the Committee. That is a matter to be decided by the State Government on the facts of each case. A Committee may admit that what it has done is wrong and yet may plead that its action does not reveal incompetence or an abuse of its powers. It may plead an honest error judgment; it may plead some misapprehension about the state of facts or state of the law; it may plead that in any event the drastic action contemplated by Sec. 238 (1) is not called for. Therefore, merely because facts are admitted or are indisputable it does not follow that natural justice need not be observed. In fact in the present case one of the complaints of the appellant is that relevant facts were not considered by the Lt. Governor. Neither the impugned order nor the note of Shri Shaiza shows that in regard to the first allegation two vital circumstances were considered: (a) The contractor had agreed to pay interest at the rate of 9% on the mobilisation advance; (b) the contractor had agreed to offer bank guarantee to cover the mobilisation advance as well as the interest. It was argued that had these facts been brought to the notice of the Lt. Governor he might not have made the impugned order. If notice had been given to the Committee, the Committee would have certainly brought these facts to the notice of the Lt. Governor.26. In the light of the discussion we have no option but to hold that the order dated February 27, 1980, of the Lt. Governor superseding the New Delhi Municipal Committee is vitiated by the failure to observe the principle Audi Alteramhave held that the notification is vitiated by the failure to observe the Principles of natural justice and we let the matter rest there.