# MUNICIPAL BOARD, KANNAUJ v. STATE OF UTTAR PRADESH, & ORS

- **Citation:** [1972] 1 S.C.R. 193
- **Court:** Supreme Court of India
- **Decided:** 1971-08-12
- **Case number:** Civil Appeal No. 42 of 1968
- **Bench:** S. M. Sikri, A.N. Ray, D.G. Palekar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/municipal-board-kannauj-v-state-of-uttar-pradesh-ors-5344
- **Pages:** 9

## Headnote

U. P. Municipalities Act, 1916-Section 34(1-B), scope of:
The Executive Officer of the Municipal Board, Kannauj (U.P.)
dismissed 74 striking employees.
Some of the employees appealed
against the order of dismissal and most of them were reinstated. The
others did not appeal and the dismissal order stood in their ca$eS.
After a year, the State Govt. purporting to act under s. 34 (1-B) of,
the U.P. Municipalities Act, passed an order prohibiting the executfon
or further execution of the order of dismissal passed by the Executive
Officer on the ground that r. 5 of the U. P. Municipal Board Servants
(Enquiry punishment and termination of service) Rules were not followed
and the dismissed employees were not heard and so the alleged order
was illegal and improper. Section 34(!-B) of the U.P. Municipalities
Act, inter a/ia, provides that the State Govt. may by order 'prohibit
the execution or further execution of a resolution or order', passed by
a Board, 'if in its opinion such resolution or order is prejudicial to the
public interest' or has been passed 'in abuse of powers or in fragrant
breach of provision of any law in force', and 'may prohibit continuance by any person or any act in pursuance of such resolution or order.'
The Municipal Board challenged the order of the State
Government in a writ petition; but the High Court dismissed the petition.
In appeal to this Court the Board contended that the provisions
of s. 34 (1-B) were incapable of application to an order of dismissal.
A.llowing the appeal,
'
HELD: The State Government has no power to cancel or set
aside an order which exhausts itself after it has been passed or made.
Where the resolution or order does not require any acts to be performed
or steps to be taken for the execution or further execution of the reso1 ution or order of the Board or its officer there remained nothing of
which execution could be prohibited. The sub-section only empowers
the State Government to prevent something being done in futuro.
[200A-E]
· Shujaat Ullah Khan v. State of U.P. & Ors, 1966 A.L.,J. 499, referred to.

## Text

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MUNICIPAL BOARD, KANNAUJ
v.
STATE OF UTTAR PRADESH, & ORS.
August 12, 1971.
[S. M. SIKRI, C.J., A.N. RAY AND D.G. PALEKAR, JJ.]
U. P. Municipalities Act, 1916-Section 34(1-B), scope of:
The Executive Officer of the Municipal Board, Kannauj (U.P.)
dismissed 74 striking employees.
Some of the employees appealed
against the order of dismissal and most of them were reinstated. The
others did not appeal and the dismissal order stood in their ca$eS.
After a year, the State Govt. purporting to act under s. 34 (1-B) of,
the U.P. Municipalities Act, passed an order prohibiting the executfon
or further execution of the order of dismissal passed by the Executive
Officer on the ground that r. 5 of the U. P. Municipal Board Servants
(Enquiry punishment and termination of service) Rules were not followed
and the dismissed employees were not heard and so the alleged order
was illegal and improper. Section 34(!-B) of the U.P. Municipalities
Act, inter a/ia, provides that the State Govt. may by order 'prohibit
the execution or further execution of a resolution or order', passed by
a Board, 'if in its opinion such resolution or order is prejudicial to the
public interest' or has been passed 'in abuse of powers or in fragrant
breach of provision of any law in force', and 'may prohibit continuance by any person or any act in pursuance of such resolution or order.'
The Municipal Board challenged the order of the State
Government in a writ petition; but the High Court dismissed the petition.
In appeal to this Court the Board contended that the provisions
of s. 34 (1-B) were incapable of application to an order of dismissal.
A.llowing the appeal,
'
HELD: The State Government has no power to cancel or set
aside an order which exhausts itself after it has been passed or made.
Where the resolution or order does not require any acts to be performed
or steps to be taken for the execution or further execution of the reso1 ution or order of the Board or its officer there remained nothing of
which execution could be prohibited. The sub-section only empowers
the State Government to prevent something being done in futuro.
[200A-E]
· Shujaat Ullah Khan v. State of U.P. & Ors, 1966 A.L.,J. 499, referred to.
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 42
of 1968.
Appeal by special leave from the judgment and order
dated July 21, 1967 of the Allahabad High Court,in Special
Appeal No. 457 of 1967.
194
SUPREME COURT REPORTS
[1972J l S.C.R.
J. P. Goyal and G. N. Wantoo, for the appellant.
0. P. Rana, for respondents Nos. 1 and 2.
H. K. P.,ri and S. K. Dhingra, for respondents Nos.
3, 9, 13, 15, 16, 25, 31 to 35, 38, 39, 42 to 50, 53 to 56, 58,
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59, 60 to 62, 65 to 67, 69 to 71, 73 and 76.
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The Judgment of the Court was delivered by
Palekar, J. This appeal by special leave against the
decision of the appellate Bench of the Allahabad High
Court involves the question of the legality and validity of c
an order dated 12th May, 1965 passed by the State Government purporting to act under section 34(1-B) of the
Uttar Pradesh Municipalities Act, 1916 (hereinafter referc
red to as "the Act"). The im::ugned order is as follows :-
"U.P. Govermrent
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Department of Municipal Board,
Serial No. 1725 GI lfP 1964/64
12-5-65
NOTIFICATION
The then Executive Officer of Municipal Board,
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Kannauj dismissed 74 sweepers of Municipal Board
Kannauj from 9th April, 1964 under section 76 of
U.P. Municipalities Act, 1916.
The dismissal of the above sweepers was illegal
and improper because the procedure prescribed in
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Rule 5 of the Uttar Pradesh Municipal Karamchari
(Janch, Dand tatha Seva Samapti) Niyamawali
[U.P. Municipal Boards Servants (Enquiry, Punishment and Terminaticn of Service Rules)] was not
followed and they were not given any opportunity
of being heard and the opinion of the State GovernG
ment is that the above order of 9th April, 1964 by the
present Executive Officer Municipal Board Kannauj
is adverse to public interest and the order has been
made by seriously defying the rules of Uttar Pradesh Municipal Karamchari Janch Dand tatha
Seva Samapti Niyamawali [U.P. Municipal Boards
Servants (Enquiry, Punishment and Termination of
Service Rules)].
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MUNICIPAL BOARD v. U.P. STATE (Palekar, J.)
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So, the Governor of Uttar Pradesh in exercise
of his power under section 34 sub-section 1-B of the
U.P. Municipalities Act, 1916 (U.P. Act No. II,
1~16) prohibits the execution. of the above order
of 9th April 1964 and any act done by any person
in pursuance of that order and th~ continuance of
that order.
By order
PRAN NA TH KAPOOR
Secretary."
This order was challenged in a writ petition before the
High Court by the Municipal Board, Kannauj as being
illegal and invalid on several grounds.
The substance ofl the allegations in the petition by the
Municipal Board was that, on account of certain disputes
between the Board and the sweeper-employees of the
Board, there was a sudden strike by the latter on 7th April,
1964. As many as 74 sweepers struck work without notice.
By reason of the strike, insanitary conditions developed
in the town endangering public health. The Board had,
therefore, to act quickly as in an emergency to recruit
sweepers to do the job; but it was difficult to recruit new
men unless continuous employment was given to them
and, hence, on 8th April, 1964, the Board arranged to
have it announced by beat of drum in the town that, unless
the striking employees resumed duties by the evening of
9th April, 1964, they were liable to be dismissed.
The
strikers did not join duties by the evening of 9th April,
1964 and, therefore, the Executive Officer of the Board
dismissed the 74 strikers who were made parties to the
petition. It was admitted that the procedure laid down
by Rule 5(1) of the Uttar Pradesh Municipal Boards Seryants (Inquiry, Punishnient and Termination of Service)
Rules (hereinafter referred to as "the Rules") was 10t
adopted before taking disciplinary action by way of dismissal; but the Board justified its action by reference to
the proviso to Rule 5(1) whi~h stated that the provisions
of sub-rule 5(1) shall not apply where the person concerned
had absconded and where, for reasons to be recorded in
writing, it was impracticable to communicate with him.
196
·SUPREME COURT REPORTS
[1972] l S.C.R.
After the dismissal of the 74 employees on 9th April, 1964
some .of the employees appealed against the order of dismissal and most of theiμ were reinstated. The others did
not appeal and, therefore, the order of dismissal stood
in their case. New recruits were appointed in their ·place.
Later, i.e., more than a year after the order of dismissal,
the State Government, purporting to act under section
34(1-B) of the Act, passed the above order prohibiting
the execution or further execution of the order of dismissal
passed by the Executive Officer. It was contended that no
such order under s. 34(1-B) of the Act could be validly
made by the State Government.
The State Government, which was respondent No. 1 to
the petition, supported its order and contended that
the order had been passed in the public interest as, in its
opinion, the order of the Executive Officer was illegal
and arbitrary and had the effect of throwing a large body
of employees out of employment making them suffer
privation and misery on account of the continuing operation of the order which was illegally passed. The employee-respondents, on the other hand, denied the more
substantial allegations in the petition. They alleged that,
as a matter of fact, the employees had not gone on strike
and, therefore there was no question of their abstaining
from doing their duties either on the 7th, 8th or the 9th of
April, 1964. There was no question also of any insanitary
conditions developing in the town and there was no good
reason at all for passing an order of dismissal of all the
employees in a body. They further alleged that the order
had been passed out'Of sheer spite in order to teach them a
lesson.
The High €ourt did not, obviously, undertake an inquiry into the disputed facts. What was, however, relevant
for its decision was whether, in case the State Government
honestly formed the opinion that the order of the Executive Officer was prejudicial to the public interest or was in
flagrant breach of a provision of any law-in this case,
rule 5(1) of the Rules, the order prohibiting the execution
or further execution of the order would be valid.
The
learned single Judge, who considered the petition in the
first instance, and . the Appellate Bench held that it was
open to the State Government, on its own inquiry, to form
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MUNICIPAL BOARD v. U.P. STATE (Palekar, !.)
197
the opinion that the order passed by the Executive Officer
dismissing a large body of employees was against public
interest and in violation of the law in force and, consequently, the order passed by the State Government under
s. 34 (1-B) of the Act was a valid order. On that view of the
matter, the Board's petition was dismissed by the High
Court and, hence, the present appeal.
The only point of substance urged by the Board before
this Court was that the provisions of section 34(1-B) of
the Act were incapable of application to an order of dismi.ssal. The contention was that, when an order of dismissal is passed, the order operates by its own force and no
further steps are necessary to implement such an order.
It was submitted that the sub-section applied only to those
cases where the resolution of the Board or order required
some steps to be taken to effectuate the resolution or the
order and not when the resolution or order was effective
by its own force. In other words, where on the passing of
the resolution or order it exhausted itself, the State Government could hardly "prohibit the execution or further execution" of that resolution or order; and, therefore, where
the State Government interfered by prohibiting the execution or further execution of the resolution or order, it
really intended to cancel or set aside the resolution or order
which, in the submission of the petitioner, was beyond the
powers of the State Government. It appears to us that
there is considerable force in this submission.
:Section 34 is in that part of Chapter II of the Act which
deals with the subject "Control of Board". The marginal
note to the section is "Power of the State Government or
the Prescribed Authority or the District Magistrate to
prohibit execution of or further execution of resolution
or order of the Board". Sub-sections (I) and (I-A) deal
with the powers of the Prescribed Authority and the District Magistrate in this respect.
Sub-section (1-B) deals
with the powers of the State Government and is as fol.
lows:-
"(1-B). The State Government may, of its own
motion or on report or complaint received by order
prohibit the execution or further execution of a
resolution or order passed or made under this or
any other enactment by a board or a committee of a
198
SUPREME COURT REPORTS
[ 1972] 1 S.C.R.
board or a joint committee or any officer or servant
of a board or of a joint committee; if in its opinion
such resolution or order is prejudicial to the public
interest, or has been passed or made in abuse of
powers or in flagrant breach of any provision of
any law for the time being in force, and may prohibit
the doing or continuance by any person of any
act in pursuance of or under cover of such resolution or order."
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;It should be noted that the words underlined above .were
inserted by an amendment which came into force on 30th
November, 1964, that is to say much after the order of
dismissal by the Executive Officer had been passed, though
:Oefore the order of the State Government dated 12th May,
:15i6s.
.Before the amendment, the State Government
e<>uld pass the o.rder of prohibition of execution only
\:Vfien, in its opinion, the resolution or order was prejμdicial to the public interest; but, after the amendment, such
an order could also be made by the State Government if,
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in its opinion, the resolution ·or order was made in abuse
of powers or in flagrant breach of any provision of any
law for the time beirtg in force. It was contended on behalf
of the Board that it was not competent for the State Government in this case to make the order on the ground that
the order pf dismissal was in flagrant breach of a provision o(the ~aw for the time being in force. But that' point
is only .of <1cad.emic interest, b.ecause ,th_e order ,\ts,t<lf S.h.9\VS
that it ~ad been passed also on the ground thi\t the o.rd,e,r
of disffi!ssal was prejudiciaLto the public interest.
We
assume, therefore, that the State Government was satisfied that the order of dismissal passed by the Executive
Officer was prejudicial to the public interest. The · question, however, is whether, after the order of dismissal had
been passed on the 9th April, 1964, the State Government
had the power virtually to set aside or cancel the order
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un~er the .cover of purporting "to prohibit the execution
or furt11;er _execution of that order." In our opinion, that
sub-sect10n does not clothe the State Government with
such a power. The resolution of the Board or the order of a
duly authorised officer of the Board is _not liable to be can-
~~,,e,Q or se! ~side und~r .this section. All that could b~ H
.. s\9,Jil,C ~.
, d. er ~t .. μ,i . . tp p·r. ,<;>hlblt t~e ,CJf,,.e9μt,I. ·o .. n
.. ,0. f fur.ther e. X
.. eC)l~
~PH ,of th,e .r.es.olut!on or order, or the doing o.r
cont~-
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MUNICIPAL BOARD v. U.P. STATE (Palekar, J.)
199
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nuance by any person of any act in pursuance of or under
cover of such resolution or order. Where the resolution
or order does not require any acts to be performed or
steps to be taken for the execution or further execution of
the resolution or order of the Board or of its Officer, as
in the present case, there is really nothing to prohibit. It
was contended on behalf of the State that, when the State
Government was empowered to order prohibition of the
execution of the resolution or order, it was virtually empowered to set aside or cancel the order and, in support
of this view, a reference was made to sub-section (4) of
that section which provides that it shall be the duty of the
Board, if so reqμired by the authority making the order
under sub-section (1-B) to take any action which it would
have been entitled to take, if the resolution or order had
never b.een made or passed, and which is necessary for
preventing any person from doing or continuing to do
anything in pursuance of the resolution or order. If the
object of the provision was to clothe the State Government with the power to cancel or set aside the resolution
of the Board or order, it would have simply said so without resorting to the i:;ircumlocution "prohibit the execution or further execution of the resolution or order". We
do not, therefore, think thiit sub-s. (1-B) ~ead with subs. (4)
applies to any resolution or order which
exhausts
itself after it is passed or made. That is the view taken by
a learned Judge of the Allahabad High Court in Shujaat
Ullah Khan v. State of U.P. & Others.(1) In that case, a
resolution was passed by the Board exonerating Shujaat
Ullah Khan, who was the Executive Officer of the Board,
from certain charges that had been framed against him.
The State Government, thereupon, purporting to act
under section 34(1-B) of the Act, quashed the Board's
resolution on the ground that it was illegal, not having
been passed by 2/3rds of the members constituting the
Board and was otherwise prejudicial to the public interest.
This order of the State Government was challenged by
Shujaat Ullah Khan on several grounds, one of them
being that no order under s. 34(1-B) could be passed, be- .
cause the resolution of the Board had been fully implemented and nothing remained to be executed in respect
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(I) 196§ ~.L.I, 499.
l 4-M1245Sup Cl/71
200
SUPREME COURT REPORTS
[1972] 1 S.C.R.
thereof.
This contention was accepted by the learned
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Judge who observed a1 follows :-
"It is clear that the only order that can be passed
by the State Government' under this sub-section
is a prohibitory order to prevent something being
done in the future. It is not open to the Government, acting under this sub-section, to give any
positive direction such as has been given in the
present case, where the Government has ordered the
Board to reconsider its report and to make a further
enquiry and take a fresh decision. The resolution
passed by the Board, exonerating the Executive
Officer and dropping the charges against him, exhausted itself as soon as it was passed, for the charges
were straightaway dropped and the
Executive
Officer stood exonerated. There remained nothing
to be done in the future and there was nothing
left for execution or further execution that could
be prohibited by tl;le State Government under sec.
34(1-B)."
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In our opinion, that reasoning equally applies to the present
case. The order of dismissal was self-operative and nothE
ing remained for execution or further execution which
could be prohibited by the State Government under that
section. On that ground alone, the order passed by the
State Government will have to be set aside.
It was next contended on behalf of the employeeF
respondents that there was really no effective order of
dismissal, because that order had not been communicated
to the e;mployees. We asked the learned counsel whether
this contention was taken earlier either in the reply filed
by them to t.ke petition or in the arguments before the
High Court. He was not able to show that this had been
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done.
On the other hand, reference was made by the
learned counsel for the petitioner to an order passed by
the Executive Officer on 9th April, 1964, for communication of the order of dismissal to the sweepers and also
to the letter dated 8th May, 1965 written py the President
of the Board to the District Magistrate which is appended
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to the petition as Annexure 'C'. This letter says that the
. orders of dismissa,l had been communicated to the sweepers
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MUNICIPAL BOARD v. U.P. STATE (Palekar, I.)
2 0 I
on 10th April, 1964. Moreover, we have on record a
letter written by and on behalf of the sweepers to the
Secretary, Local Self Government Department, U.P.,
which clearly goes to show that the sweepers had come to
know that they had been dismissed from service.
This
letter was received in the office of the Secretariat on 21st
April, 1964 which only shows that the sweepers must
have been communicated the order of dismissal much
earlier. We also know that many sweepers had filed appeals.
In any case, since the contention is put forward
for the first time now in this Court and involves consideration of facts, it cannot be permitted to be raised.
In the result, the appeal is allowed and the order of the
State Government dated 12th May, 1965 is quashed. There
shall be no order as to costs.
s.c.
Appeal allowed.