# S. L. KAPOOR v. JAGMOHAN & ORS

- **Citation:** [1981] 1 S.C.R. 746
- **Court:** Supreme Court of India
- **Decided:** 1980-09-18
- **Bench:** R. S. Sarkaria, 0. Chinnappa Reddy, A. P. Sen
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/s-l-kapoor-v-jagmohan-ors-8171
- **Pages:** 22

## Headnote

Punjab Municipal Act, 1911, Sec. 238(1)-Supersession of Municipal Committee ordered-allegations on which order passed-committee whether entitled
to ofjer explanation-failure to observe principle of audi alteram par/em-whether
·vitiates order.
Administrative Law--Natural Justice-Hearing-opportunity whether to be
a 'double opportunity'--one on factual allegation and another on proposed
penalty.
The Punjab Municipal Act, 1911 which is the law applicable to the
·New Delhi Municipal Committee empowers by Section 238(1), the Delhi Administration by a notification to supersede a Municipal Committee if in its view,
the Municipal Committee is incompetent to perform or persistently makes
default in the performance of, the duties imposed by the Act or under any
other Act, or exceeds o:r abuses its powers.
Exercising the powers under this section the Lt. Governor, Delhi, superseded the New Delhi Municipal Committee on the ground that it had made
persistent default in the performance of the duties imposed on it under the
law and had abused its powers resulting in wastage of municipal funds. Four
grounds were enumerated in thio order of supersession.
In their writ petition two non-official members of the superseded committee impugned the order of supersession contending that the order was passed
in complete violation of the principles of natural justice and total di~regard
of fair-play.
The Full Bench of the High Court dismissing the writ petition
held that although the Committ1:e should have been given an opportunity to
state its case, since the Committee was aware of the allegations in 3 out of
4 grounds, mere failure to observe principles of natural justice did not vitiate
the order.
In appeal to this Court, it was contended on behalf of the appellants
that the Committee had no opportunity to offer their explanation in regard
to the allegations on which the order of supersession was passed and failure
..,.
to observe principles of natural justice vitiated the order of supersession.
On behalf of the Respondents, it was contended that : (1) Section 238(1)
of the Punjab Municipal Act did not contemplate that an opportunity should
be given to the Committee before an order of supersession »vas passed, (2)
neither the Committee nor its members had any beneficial interest in the
continuance of the Commit.tee and the supersession of the Committee did not
S. L. KAPOOR V. JAGMOHAN
' involve any civil consequences entitling it to a right to be hea.rd, (3) when
· the question of the disqualification of any individual member was involved,
'Section 16 of the Punjab Municipal Act expressly provided for an opportunity
being given to the member concerned, whereas section 238(1) did not provide
for such as opportunity and so by necessary implication the principle of
<audi alteram partem was excluded, and (4) section 238(1)
also contemplated
-emergent situation where quick action might be necessary to avert a disaster
iand in such a situation if th<l demands of natural justice were to be met,
'the very object
of the provisions would be frustrated.
Allowing the appeal,
HELD : (1) The order dated February 27, 1980 of the Lt. Governor super-
'Seding the New Delhi Municipal Committee is vitiated by the failure to observe
the principle of audi alteram partem.
[767D]
(2) (i) An administrative body may in a proper case, be bound to give a
person who is affected by their decision an opportunity of making representation. It all depends on whether he has some right or interest, or some legiti-
.mate expectation, of which it would not be fair to deprive him. [754 C].
Schmidt and Anr. v. Secretary of State for Home Affairs, (1969) 2 Chancery
Divn. 149 referred to.
(ii) In
its comprehensive connotation, everything that affects a citizen in
'his civil life, inflicts a civil consequence. [753H]
(iii) In the region of public law locus standi person aggrieved, right and
interest have a broader import. [754B]
Mo/tinder Singh Gill & Anr. v. The Chief Election Commissioner,

## Text

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;746
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S. L. KAPOOR
v.
JAGMOHAN & ORS.
September 18, 1980
(R. S. SARKARIA, 0. CHINNAPPA REDDY AND A. P. SEN, JJ.)
Punjab Municipal Act, 1911, Sec. 238(1)-Supersession of Municipal Committee ordered-allegations on which order passed-committee whether entitled
to ofjer explanation-failure to observe principle of audi alteram par/em-whether
·vitiates order.
Administrative Law--Natural Justice-Hearing-opportunity whether to be
a 'double opportunity'--one on factual allegation and another on proposed
penalty.
The Punjab Municipal Act, 1911 which is the law applicable to the
·New Delhi Municipal Committee empowers by Section 238(1), the Delhi Administration by a notification to supersede a Municipal Committee if in its view,
the Municipal Committee is incompetent to perform or persistently makes
default in the performance of, the duties imposed by the Act or under any
other Act, or exceeds o:r abuses its powers.
Exercising the powers under this section the Lt. Governor, Delhi, superseded the New Delhi Municipal Committee on the ground that it had made
persistent default in the performance of the duties imposed on it under the
law and had abused its powers resulting in wastage of municipal funds. Four
grounds were enumerated in thio order of supersession.
In their writ petition two non-official members of the superseded committee impugned the order of supersession contending that the order was passed
in complete violation of the principles of natural justice and total di~regard
of fair-play.
The Full Bench of the High Court dismissing the writ petition
held that although the Committ1:e should have been given an opportunity to
state its case, since the Committee was aware of the allegations in 3 out of
4 grounds, mere failure to observe principles of natural justice did not vitiate
the order.
In appeal to this Court, it was contended on behalf of the appellants
that the Committee had no opportunity to offer their explanation in regard
to the allegations on which the order of supersession was passed and failure
..,.
to observe principles of natural justice vitiated the order of supersession.
On behalf of the Respondents, it was contended that : (1) Section 238(1)
of the Punjab Municipal Act did not contemplate that an opportunity should
be given to the Committee before an order of supersession »vas passed, (2)
neither the Committee nor its members had any beneficial interest in the
continuance of the Commit.tee and the supersession of the Committee did not
S. L. KAPOOR V. JAGMOHAN
' involve any civil consequences entitling it to a right to be hea.rd, (3) when
· the question of the disqualification of any individual member was involved,
'Section 16 of the Punjab Municipal Act expressly provided for an opportunity
being given to the member concerned, whereas section 238(1) did not provide
for such as opportunity and so by necessary implication the principle of
<audi alteram partem was excluded, and (4) section 238(1)
also contemplated
-emergent situation where quick action might be necessary to avert a disaster
iand in such a situation if th<l demands of natural justice were to be met,
'the very object
of the provisions would be frustrated.
Allowing the appeal,
HELD : (1) The order dated February 27, 1980 of the Lt. Governor super-
'Seding the New Delhi Municipal Committee is vitiated by the failure to observe
the principle of audi alteram partem.
[767D]
(2) (i) An administrative body may in a proper case, be bound to give a
person who is affected by their decision an opportunity of making representation. It all depends on whether he has some right or interest, or some legiti-
.mate expectation, of which it would not be fair to deprive him. [754 C].
Schmidt and Anr. v. Secretary of State for Home Affairs, (1969) 2 Chancery
Divn. 149 referred to.
(ii) In
its comprehensive connotation, everything that affects a citizen in
'his civil life, inflicts a civil consequence. [753H]
(iii) In the region of public law locus standi person aggrieved, right and
interest have a broader import. [754B]
Mo/tinder Singh Gill & Anr. v. The Chief Election Commissioner, New
Delhi & Ors. [1978] 2 SCR 272 @ 308, 309, referred to.
(3) A Committee so soon as it is constituted at once assumes a certain
-office and status, is endowed with certain tights and burdened with certain
responsibilities, all of a nature commanding respectful regard from the public.
To be stripped of the office and status, to be deprived of the rights, to be
removed from the responsibilities, in an unceremonious way as to suffer in
public
esteem, is certainly to visit the committee
with civil consequences.
'[756H; 757 A]
(4) The status and office and the rights and responsibilities and the expectation of the Committee to serve its full term of office would certainly create
sufficient interest in the Municipal Committee and their loss, if superseded,
would entail civil consequences so as to justify an insistence upon the obser·
vance of the principles of natural· justice before an order of supersession js
passed. [757B]
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Alfred Thangarajah Durayappah v. W. J. Fernando & Ors. [1967] 2 A.C.
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. 337 applied.
(5) It is not always a necessary inference that if opportunity is expressly
provided in one provision (Sec. 16) and not so provided 'in another [Sec. 238(1)]
opportunity is to be considered as excluded from that other provision. It may
be a weighty consideration to be taken· into account but the w·eightier consi-
. deration is whether the
administrative
action ·entails
·civil consequences.
[757D-E]
Mohinder Singh Gill & Anr. v. The Chief Election Commissioner, New
.Delhi & Ors-. [1978] 2 SCR p. 272 @ 316 referred .to.
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SUPREME COURT REPORTS
[1981} 1 S.C.R.
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(6) A Municipal Committee under the Punjab Municipal Act is a public
body consisting of both officials and non-officials and one cannot imagine any·
thing 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 section 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. Even minimal natural justice is not excluded
when alleged grave situation arises under section 238. [757H; 758A-B]
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(7) If 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.
Minimum natural
justice is, therefore, not excluded when alleged grave situations arise under
section 238. [758C-D]
(8) The opportunity which is required to be given need not be a 'double
opportunity' one on 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. [762B-C]
(9) 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 approves
the non-observance of natural justice but because Courts do not issue futile
writs. [762E]
Ridge v. Baldwin & Ors. [1964] AC 40 @ 68, John v. Rees and ors. [1970 · t
Chancery p. 345 @ 402, Annamunthoda v. Oilfields W qrkers' Trade Union,
[1961] 3 All E.R. 621 (H.L.) @ p. 625, Margerits Fuentes et al. v. Tobert L.
Shevin, 32 L. Ed. 2d. 556 @ 574, Chintepalli Agency Taluk Arrack Sales Co·
operative Society Ltd. etc. v. Secr1,tary (Food & Agriculture) Govt. of Andrra
Pradesh etc., [1978] 1 SCR 563 @ 567, 569-70, referred to.
(IO) The principles of natural justice know of no exclusionary rule depen·
dant on whether it would have made any difference if 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. [766-E-F]
(11) In regard to the grant of contract for building the City Centre and
payment of mobilisation advance, the correspondence that passed was between the Government of India and the New Delhi Municipal Committee
and
not between the Delhi Adrhinistration and the New Delhi MnnicipaT
Committee.
The authority competent to take action under section 238(1) of
the Punjab Municipal Act was the Delhi Administration and not the Government of India. It cannot, therefore, be said that the Delhi Administration
ever gave any opportunity to the New Delhi Municipal Committee to make
any representation in regard to this ground. [760D-F]
(12) With regard to the reemployment of a retired official against wnom
vigilance case was recommended,
the letter from the Delhi Administration
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s. L. KAPOOR v. JAGMOHAN (Chinnappa Reddy, 1.)
to the New Delhi Municipal Committee cannot be construed as a notice to
the New Delhi Municipal Committee to come forward with its explanation.
:rile letter was peremptory and final and there was nothing to indicate that
any other action was contemplated and that the Municipal Committee ·could
offer its explanation if so minded, [760H-76!C]
(13) The charge that the Municipal Committee created a number of posts
749
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and made appointments indicated that though the Delhi Administration, objecB
ted to tliese irregular appointments, the correspondence does not reveal that
any action was proposed against the Municipal Committee. [761D; G]
(14) The New Delhi Municipal Committee was never put on notice of
any action proposed to be taken under section 238 of the Punjab Municipal
Act and no opportunity was given to the Municipal Committee to explain any
fact or circumstance on the basis that action was proposed. If there was any
correspondence between the New Delhi Municipal Committee and any other
auth0,rity about the subject matter of any of *e allegations, if information
was given and gathered it was for entirely different purposes. [761H; 762A)
(15) 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. It is a matter to be decided by
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the State Government on the facts of each case.
A Committee may admit
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ltbat 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 some misapprehension about the state of facts or state of the law, it may plead that
in any event the drastic action contemplated by section 238(1) is not called
for and it should not be invoked., [7660-H; 767 A]
C1vrL APPELLATE JURISDICTION : Civil Appeal No.
1516 of
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~980 .
...-
Appeal by Special
Leave from the Judgment and
Order
<lated 9-5-1980 of the J)elhi Hi~ Court in C.W. No. 404/80.
Soli !. Sorabjee, V. M. Tarkunde
and
P. N. Lekhi for the
Appellant.
Lal Narain Sinha,
Att. Genl.
R. N. Tandon
and Miss A.
Subhashini for the Respondents.
The Judgment of the Court was delivered by.
CHJNNAPPA REDDY, J.-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.
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SUPREME COURT REPORTS
[1981] 1 S.C.R.
Governor, in exercise of the powers conferred by Sec •. 238(1),
superseded the New Delhi Municipal Committee with immediate effect
and appointed Shri P. N. Bhel as the person who may exercise and
perform all powers and duties of the New Delhi Muni:cipal Committee·
until the said Committee was reconstituted.
The preamble to the order of supersession recited that the Com-.
mittee was incompetent to perform and had made persistent default·
in the performance of the duties imposed on it under the law had
further abused its powers, resulting in wm,tage of Municipal funds.
Four instances or grounds were menti:oned.
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. Tarapore & Co.
flor the construction or City Centre though such a clause did not
find a place in the original contract with M/s. Mohinder Singh & Co ..
The contract we may mention here, had been awarded to M/s·. Tarapore & Co. on the failure of M/s. Mohinder Singh & Co . .to complete
the work. It was alleged that the contract was awarded to Tarapore
& Co., at an enhanced cost without the prior approval of the Lt.
Governor. The inclusion of the clause relating to payment of mobi•
lisation 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 advi:ce of
the Central Vigilance Commission that 'major penalty proceedings•
should be initiated against him. The thi:rd 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 oI 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 inspite of the directive of the Lt. Governor not to create posts
unless the staffing pattern was studied by the Admini:strative Reforms
Department.
Two of the non-official members of the ~uperseded New Delhi
Municipal Committee, Shri S. L. Kapoor and another, filed Civil Writ
Petitions in the Delhi High Court to quash the order of supersessi:on .
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.
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Before the High Court, as before us, the principal submission of
the learned counsel for the petitioner-appellant was that the order of
supersession was passed in complete violation of the principles of
*
s. L. KAPOOR v. JAGMOHAN (Chi.nnappa Reddy, !.)
natural justice and total disregard of farr~play. It was pointed out
that no notice to show cause against supersession was ever issued '
to the Committee, there was not the slightest hint until the order
was made that there was any proposal to supersede the Committee
and the Committee never had any opportunity either before or after
the order of supersession was passed to offer tlieir expfanati:on
against the allegations made in the order of supersession. The Full
Bench upheld the claim of the petitioners that it was necessary to
hear the Committee before an order under Sec. 238 ( 1) of the Punjab
Municipal Act was passed.
But, held, the High Court, the Committee was made aware of the allegatrons and had been given opportunity to state its case or version in the case of atleast three out of
the four grounds and therefore, there was no failure to observe the
principles• of natural justice.
Even otherwise, the High Court
expressed the view that undisputed facts were there and they spoke
for themselves and no purpose would have been served by giving
formal notice to the Committee of the allegations and the proposal to
take action to supersede tlie Committee since the result would have
been thesame. In the view of the High Court there was no prejudice
to the Committee by the failure to observe natural justice. Shri ,Soli
Sorabjee, learned counsel for the appellant, questioned the conclusion
of the High Court .that the Committee had the opportunity to offer
their explanation in regard to the allegations on which the order of
supersession was passed. He also canvassed the view that the failure
to observe the principles of natural justice did not vitrate the order
of supersession since the observance of natural justice would have,
on the undisputed facts, led to the same result.
The learned Attorney General who appeared for the Lt. Governor contended that Sec. 238(1) of the Punjab Municipal Act did not
contemplate and did not require, as a matter of. interpretation, that
any opportunity should be given to the Committee before an order
of supersession was ·passed. It was submitted that although much of
the distinction between a judicial act and an administrative act had
vanished, there was still a thin but discernible line between the two
and that in the case of an administrative act some positive beneficial
interest must be established before natural justice could be insisted
upon. It was said that neither the Committee nor its members had
any beneficial interest in the continuance of the Committee and therefore, the supersession of the Committee did not involve any Civil
consequences such as would give rise to a right to be heard. The
argument was initially pushed further and it was submitted that, in
any ,case, an individual member of the Committee, none of whose
individual rights h~d been infringed, had no locus standi to maintain
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SUPREME COURT REPORTS
[1981] 1 S.C.R.
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the petition. The submission about locus standi was however, withdrawn by the learned Attorney General at a later ~tage and it is
unnecessary for us to conside:r that question.
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First, the question whether the rule of Audi Alteram Partem is
attracted : Sec. 11 of the ·Punjab Municipal Act provides that there
shall be established for each Municipality a Committee having authority over the Municipality consisting of such number of members as
the State Government may fix in that behalf. Sec. 12 provides that
every such Committee shall consist of members appointed by . the
State Government either by name or by office, or of members selected
from among inhabitants in accordance with rules made under the Act.
Sec. 13 empowers the State Government to stipulate the term of
office for which members of the Committee shall be appointed and
elected.
Sec. 18 makes every Committee a body Corporate having
perpetual succession and a common seal, with power to acquire- and
hold property to contract etc. etc. Every member of the Committee
is deemed to· be a public servant by Sec. 19. Sec. 56 vests in the·
Committee the various kinds of property specified therein.
Sec. 6 l
empowers the Committee to impose varied . taxes.
There are
innumerable other provisions of the Act which prescribe the powers
and duties of the· Committee. Sec. 16 empowers the State Govern~
tnent to remove any member of the Committee if he comes to suffer
any of the specified disqualifii~ations but only after the State Government communicates to the member concerned the reasons for his
proposed ·removal and gives him an opportunity of tendering an
explanation in wrtting.
Sec. 232 empowers the Commissioner or
Deputy Commissioner to suspend the execution of any reso1ution or
order of the Committee or prohibit the doing of any act which is
about to be done or is being done in pursuance of or under the cover
of the Act or in pursuance of any sanction or permission granted by
the Committee if in his opinion the resolution, order or act is in
excess of the powers conferred ·by law or contrary to the public
interest or likely to cause waste or damage to Municipal funds or
property.
Sec. 233 authorises the Deputy Commissioner,in case of
emergency to provide for the execution of any work or the doing of
any act if the immediate execution of the work or the doing of the
Act is necessary" for the service or the safety of the public. Sec.-234
enables the Commissioner to provide for the performance of any duty
to the Committee if the Committee makes default in performing such
duty after being required to perform it. Sec. 236 empowers the State
Government to require that the proceedings of the Committee shall
be in conformity ·With law and . vests . in the Gciverninent · neces5ary
powers to annul or modify any proceedings which it may consider
s. L. KAPOOR v. JAGMOHAN (Chinnappa Reddy,!.)
753
not to be in conformity with law. Sec. 238 is what we are directly
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concerned with and it reads as follows :
"238(1) Should a Committee be incompetent to perform or
persistently make default in the performance of, the duties
imposed on' it by or under this or any other Act, or exceed or
abuse its powers, the State Government may by notification, in
·which the reasons for so doing shall be stated, declare the
Committee to be 5uperseded :
(2) When a committee is so superseded, the following
consequences shall ensue :
(a) all members of the committee shall, from the date
. of the notification, vacate their seats;
(b) all powers and duties of the committee may, until
the committee is reconstituted, be exercised and performed
by such persons· as the State Government may appoint in
that behalf; ·
(c) all prop~rty vested in the committee shall, until the
committeee is reconstituted, vest in the State Government;
(3) The State Government may, if it shall think fit, at any
time constitute another committee in the place of any committee
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superseded under this section".
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The old distinction between a judicial act and an administrative
act has withered away and we have been liberated from the psittacine
incantation of 'administrative action'.
Now, from the time of the
decision
of. this Court in State of Orissa v. Dr. (Miss) Binapani
Devi & Ors. (1) "even an administrative order which involves civil
consequences .... must be made consistently with the rules of natural
i,ustice". What are civil consequences? The question was po5ed
and answered by this Court in Mohinder Singh Gill & Anr. v. The
Chief Election Commissioner, New Delhi & Ors.( 2 ) Krishna Iyer J.,
speaking for the Constitution Bench said (at p. 308-309) :
"But what is a civil consequence, let us ask ourselves, by
passing verbal booby-traps?
'Civil consequence' undoubtedly
cover infraction of not merely property or personal rights but of
civil liberties, material deprivations and non-pecuniary damages.
In its comprehensive connotation, everything that affects a citi~
zen in his civil life inflicts a civil consequence".
{I) (1967] 2 SCR 625.
1(2) (19.78] 2 SCR 272 @ 308, 309.
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SUPREME COURT REPORTS
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The learn!'!d Judge then proceeded to
quote from Black's Legat
Dictionary and
to
consider
the
interest
of a candidate at a·.·
Parliamentary election.
He finally said :
"The appellant has a right to have the election conducted'
not according to humour or hubris but according to Jaw
and
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justice. And so natural justice cannot be stumped out on this
score.
In the region of public law locus standi and person
aggrieved, right and interest have a broader import".
In Schmidt and Another v. Secretary of State for Home Afjairs(1}
Lord Denning M.R., observed : "The speeches in Ridge v. Baldwin
c
[1964] AC 40, show that an administrative body may, in a propercase, be bound to give a person who is affected by their decision an
opportunity of making representations. It all depends on whether he·
has some right or interest or, I would add, some legitimate expecta-
- tion, of which it would not be fair to deprive him". It was held in·
that case that a foreign alien had no righ!t to enter the country except
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by leave, but, if he was given leave to come for a limited period and'
his· permit was sought to be revoked before the expiry of the time·
limit, he ought to be given an opportunity of making representation,
for he had a legitimate expectation of berng allowed to stay for the·
permitted time.
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In Alfred Thangarajah Durayappah v. W. !. Fernando & Ors.( 2 )'
the Municipal Council of Jaffna was dissolved and superseded by the·
Governor-General on the ground that it appeared to him that the
Council was not competent to perform the duties imposed upon it.
The Mayor sought to question the drssolution and supersession of the
Council in the Supreme Court of Ceylon, on the ground that there
was a failure to observe the principles of natural justice. One of the
questions which arose for consideration was whether, as a matter of·
interpretation, natural justice ·was not excluded from action under
Sec.· 277 of the Municrpal Ordinance under which provision tlie dissolution and supersession had been made.
The argument was that
words such as "where it appe:ars to ...... " or "if it appears to the
satisfaction of ...... " or "if the . . . . . . . . . . considers it expedient
that ........ " or " if the . . . . . . . . . . . . is satisfied that ........ "
stood by themselves without other words or crrcumstances or qualifications, a duty to act judicially was excluded, and so, was natural
justice. The argument was accepted by the Supreme Court of Ceylon
but the Privy Council disagreed with the approach. They observed
(!) [1969] 2 Chancery Divn. 149.
(2) [1967] 2 A.C. 337.
I
s. L. KAPOOR v. JAGMOHAN (Chi.nnappa .Reddy, J.)
that there were three matters which should always be borne in mind
when considering whether the principle Audi Alteram Partem should
be applied or not. The three matters were :
"first, what is the nature of the property, the office held,
status enjoyed or services to be performed by the complainant of
injustice.
Secondly, in what circumstances or upon what occasions· i:s the person claiming to be entitled to exercise the measure
of control entitled to intervene. Thirdly, when a right to intervene is proved, what sanctions in fact is the latter entitled to
impose upon the other. It is only upon a consideration of all
these matters that the question of the application of the principle
can properly be determined".
The Privy Council then proceeded to examine the facts of the case
upon those considerations and said :
'As to the first matter it ·cannot be doubted that the Council
of Jaffna was by statute a public corporation entrusted like all
other municipal councils with the administration of a large area
and the ·discharge of important duties. No one would consider
that its activities should be lightly interfered with ...... , .... .
The legislature has enacted a statute setting up municipal authorities with a considerable measure of independence from the
central government within defined local areas and fields of government. No Minister should have the right to dissolve such an
authority without allowing it the right to be heard upon that
matter unle>s the statute rs . so clear that it is' plain it has no
right of self defence.
Upon the second matter it is clear that the Minister can.
dissolve the council on one of the three grounds : that it (a) is
hot competent to perform any duty or duties imposed upon· it·
(for
brevity their
Lordships
will refer
to this
head
as
incompetency); or (b) persistently makes defau~t in the performance of any duty or duties imposed upon it; or (c) persistently
refuses or neglects to comply with any provision of law ...... It
seems clear to their Lordships that it is a most serious -charge .
to allege that the council; entrusted with these very important
duties, persistently makes default i:n the performance of any duty
or duties imposed upon it. No authority is required to support
the view that in such circumstances it is plain and obvious that
the priniciple audi alteram partem must apply.
Equally it is clear that if a council is alleged persistently to.
refuse or neglect to comply with a provision of law it must be_
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entitled (as· a matter of the most elementary justice) to be heard·
in its defence.
Again thrs proposition i:equires no authority te
support it. If, therefore, it is clear that in two of the three-cases,
the Minister must act judicially, then it seems to their Lordships,
looking at the section as a whole, that it is not possible to
. single out for different treatment the third case, namely,
incompetence ..... .
The third matter can be dealt with quite shortly. · The
sanction which the Minister can impose and indeed, if he is
satisfied of the. necessary premise, must impose upon the erring
council is as complete as could be imagined; it involves the
dissolution of the council and therefore the confiscation of all
its properties.
It was at one moment faintly argued that the
council was a trustee and that it was not therefore being deprived
of any of its property but this argument (soon abandoned)
depended upon a complete misconception of the law of
corporations ...... For the purposes of the application of the
principle it seems to their Lordships that this must apply
equally to a statutory body having statutory powers, authorities
and duties just as it does to an individual. Accordingly on this
ground too the Minister should have observed the principle.
For these reasons their Lordships have no doubt that in
the circumstances of this case the Minister should have observed
the principle audi alteram partem:
Sugathadasa v. Jayasinghe
[1958] 59 N.L.R. ( 457) was wrongly decided".
Narrow as were the considerations applied by the Privy Council to
determine whether the principle audi alteram partem applied or not,
Alfred Thangarajah, Durayappah v. W. J. Fernando & Ors. (Supra)
appears to us· furnish a complete answer to the submission of the
learned Attorney General that, as a matter of interpretation, Sec. 238
of the Punjab Municipal Act did not contemplate and did not require
that an opportunity should be given to the Committee before an order
of supersession was passed. We may notrce here that the la11guage of
Sec. 238(1) ·of the Punjab Municipal Act is very nearly the same as·
the language of Sec. 277(1) of the Municipal Ordinance which was
interpreted by the Privy Council in Alfred Thangarajah Durayappah
v; W. J. Fernando & Ors. (Supra) We have already referred to some
of the relevant provisions of the Punjab Municipal Act to indicate
some of the rights and duties of the Committee under that Act. A
Cqmmittee so soon as it is constituted, at once, assumes a certain
office and status, is endowed with certain rights and burdened with
certain responsibilities, all of a nature commanding respectful regard
s. L. KAPOOR v. JAGMOHAN (Chinnappa Reddy, ].)
. 7,$1
from the public.
To be stripped of the office and status, to be
deprived of the rights, to be removed from the responsibiliti:es, in an
unceremonious way as to suffer in public esteem, is certainly to visit
the Committee with civil consequences. In our opinion the status and
office and the rights and responsibilities to which we have referred
and the expectation of the Committee to serve its full term of office
·would certainly create sufficient interest in the Municipal Committee
and their loss, if superseded, would entail civil consequences so as
to justify an insistence up9n the observance of the principles· of natural
justice before an order of supersession is passed.
One of the submissi:ons of the learned Attorney General was
that when the question was one of disqualification of an individual
member, Sec. 16 of the Punjab Municipal Act expressly provided for
an opportunity being given
to the member concerned whereas
Sec. 238(1) did not provide for such an opportunity and, so, by
necessary implication, it must be considered that the principle Audi
Alteram Partem was excluded. We are unable to agree with the submission of the learned Attorney General. It is not always a necessary
.. inference that if opportunity i:s 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 considerati:on is whether
the administrative aCtion entails civil consequences.
This was also
the view taken in Mohinder Singh Gill & Anr. v. The Chief Election'
Commissioner, New Delhi & Ors. (1) where it was observed (at p.
316) :
"We have been told that wherever the Parliament has
intended a hearing it has said so in the Act and the rules and
inferentially where it has not specified it is otiose. There is no
such sequitur.
The silence of a statute has no exclusionary
effect except where it flows from necessary implication. Art. 324
vests a wide power and where some direct consequence on candi:-
dates emanates from its exercise we must read this functional
obligation".
Another submission of the learned Attorney General was that
Sec. 238(1) also contemplated emergent situations where swift action
might be necessary to avert disaster and that in such situations if the
demands of natural justice were to be met, the very object of the provision would be frustrated. It is difficult to visualise the sudden and
calamitos situations
gloomily foreboded
by the learned Attorney
General where there would not be enough breathing time to observe
natural justi:ce, at least in a rudimentary way. A Municipal Committee
(1) [1978] 2 SCR p. 272 @ 316.
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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 appro-
. priate 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 alter am ijartem. All that we say is that Sec. 238 (1) of
the Punjab Munrcipal Act does not.
The next question for consideration is weather the Committee
·was given an opportunity to make its representations against the allegations upon which the order of supersession was ultimately founded.
We have already mentioned that the first allegation was about the
agreement to pay 'mobilisation advance' to M/s. Tarapore & Co.
It appears that the work of wnstruction of New Delhi City Centre
was initially awarded to Mohinder Singh & Co. in October, 1976 but
on account of their inability to complete the work within the stipulated
time it was decided to invite "restricted tenders" from other contractors.
That was done and the contract was awarded to Tarapore & Co. One
·of the conditions of the contract which was accepted by the Committee
. was that the contractor should be paid 7t% of the value of the tender
as.. 'rnobilis~tion advance': On December 31, 1979, the New Delhi
Municipal Committee addressed a letter to the Secretary (Local Self
.Government), Delhi Administration requesting the sanction of the Lt.
Governor for payment of 'mobilisation advance' to the contractors.
It was mentioned in the lett,er that the contractors had offered to pay
interest at the rate of 9% per annum and to give a bank guarantee to
cover the advance as well as the interest. While the question of the
, grant of approval by the Lt. Governor was under consideration, Mohinder Singh, the original contractor appears to have submitted a representation to the Govt. of India about the award of the contract to
Tarapore & Co.
On February 11, 1980, the Deputy Secretary,
Ministry of Works & Housing, Government of India, forwarded a
~-
s. L. KAPOOR v. JAGMOHAN (Chinnappa Reddy, J.)
- 759
copy of _the representation to Shri S.C. Chhabra, President, New Delhi
'Municipal Committee and requested him "(a) to send a factual report
-on the subject, and (b) not to make further payments, commitments
--Or arrangements or to do anything irrevocable till the New Delhi Municipal Committee hears from this Ministry". The President of the
New Delhi Municipal Committee submitted the factual report on
February 13, 1980, and on February 19, 1980 wrote a letter to
Shrr M. K.. Mukherjee, Secretary,
Ministry of Works & Housing,
pointing out that a serious situation and stale-mate had been created
-because of the direction contained in· the Deputy Secretary's1
letter dated February 11, 1980 not to make further payments to the
-contractors until they again heard from the Government of India.
The circumstances under which the contract had been awarded to
'Tarapore & Co. were explained and the Government of India requested
·to communicate their decision at an early date. A copy of the letter
was also sent to the Lt. Governor and to the Secretary, Local Self
Government, Delhi Administration. On February 10, 1980 the Deputy
'Secretary, Ministry of Works & Housing, Government of India wrote to
. -Shri Shaiza, Secretary, Local Self Government, Delhi Administration
·pointing to the letter from him (the Deputy Secretary, Government of
Indra) to the President, New Delhi Municipal Committee, a copy of
which had been sent to Shri Shaiza and referring to a subsequent
telephonic conversation between the two of them, and mentionilig
that a report had since been received from the New Delhr Municipal
•Committee. The Deputy Secretary, Ministry of Works & Housing also
reminded Shri Shaiza that he had given him to understand that the
Lt. Governor had not agreed to the grant of mobilisation advance of
'Rs·. 15 lakhs by the New Delhi Municipal Committee to M/s. Tarapore & Co. He requested Shri Shaiza to expedite the views of the
Delhi Administration on Mohinder Smgh & Co's representation and
the modalities of the grant of the contract for the remainder of the
work to M/s. Tarapore &" Co. It is to be noted here that though
according to this letter Shri Shaiza had already informed the Deputy
Secretary, Government of India, that the Lt. Governor had not agreed
to the grant of the mobilisation advance, the New Delhi Municipal
Committee themselves had not been so informed by the Delhi
Administration until then, nor even later. What is even more curious
is the circumstance that after receiving
Shri Shaiza's• °"'letter, the
Deputy Secretary, Government of India, on February 22, 1980, wrote
-to the President, New Delhi Municipal Committee informing him that
the Ministry of Works & Housing had considered the position and
·that the New Delhi Municipal Committee might deal with the matter
according to law and that the request made in sub-para (b) of his
!>.O. letter of even number dated February, 11, 1980, addressed to
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the President, New Delhi: Municipal Committee might be treated as.
withdrawn. This was to be without prejudice to any action that the
Ministry of Home Affairs' and/or the Delhi Administri1;tion might
like to take in the matter. This was how the matter stood when the·
impugned order was passed on February 27, 1980, by the Lt. Governor. The order was signed by Shri Shaiza, Secretary, Local Self
Government, Delhi Administration.