# THE STATE OF MAHARASHTRA & ANR v. B. K. TAKKAMORE & ORS

- **Citation:** [1967] 2 S.C.R. 583
- **Court:** Supreme Court of India
- **Decided:** 1966-10-07
- **Bench:** K. N. Wanchoo, R. S. Bachawat, V. Ramaswam!
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/the-state-of-maharashtra-anr-v-b-k-takkamore-ors-4162
- **Pages:** 13

## Headnote

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City of Nagpur Corporation Act, 1948 (C.P. & Berar Act 2 of 1950),
s. 40_8-i'vfuuicipality--Super.session-Grounds of interference
irz
writ
app/icatio11-0rder if SllStainable when one of tlze two charges found not
proved.
By s. 408 of the City of Nagpur Corporation Act, 1948 the State
Government may, after giving an opportunity to the Corporation to show
cause, pass an order superseding the Corporation, if it is of opinion that
the Corporation ls not competent or persistently makes default in the performance of the duties imposed on it by or under the Act.
After the
requisite show cause notice the State Government passed the impugned
Order superseding the Nagpur Municipal Corporation. The High Court,
in a writ petition, quashed the Order holding that the State Government
exercised its power under s. 408 on grounds which were not reasonably
related to its ~gitimate exercise and that the finding upon which the Order
was passed was rationally impossible on the materials before the State
Government. On appeal to this Court :
HELD : The Order of supersession was valid and could not be set
aside.
(i) Of the two grounds on which the opinion of the State Government
was based the first ground could not be sustained, firstly because the Corporation had no opportunity to show cause against the charge, and secondly,
because no reasonable person on the materials before the State Government
could possibly form the opinion that the charge was proved.
Regarding
the second ground there were materials before the State Government IJl)On
which It could find that the Corporation was not competent to perform
the duties imposed upon it. [S88H; S92D)
In a writ application the court will not review the facta as an appellate
body. But the Order of supersession is liable to be set aside, as in excess
of the statutory power under s. 408, if no reasonable person on a proper
consideration of the materials before the State Government will form the
opinion that the Corporation is not competent to perform or persistently
defaults in the performance of the duties imposed on it. The Order is also
liable to be set aside if it was passed in bad faith or due opportunity to
show cause was not given. [585H]
(ii) The Order cannot be set aside for the reason that one of the
grounds is found to be non-existent or irrelevant. The Order, read with
the show cause notice shows that in the opinion of the State Government
the second ground by itself was serious enough to warrant action under
s. 408. [595 A-Bl
H
An administrative or quasi-judicial Order based on several grounds, all
taken together, cannot be sustained if it be found th.at some of the grounds
are non-existent or irrelevant and there is nothing to show that the authority would have passed the Order on the basis of the other relevant and
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llU1'llBWB OOUllT UPOl.TS
(1967) 2 S.C.R.
existing grounds. But, an Order based on several grounds some of which
A
att found to be no~xistent or irrelevant can be sustained if the Court is
satisfied that the authority would have passed the Order on the basis of
other relevant and existing grounds and the exclusion of the irrele\11nt or
non-.,xistent grounds could not have affected the ultimate opinion or
decision. (594 E-G]
Dwarka Das Bhatia v. State of lammu and Kashmir, [1965] S.C.R 948.
Dhiraji/al Girdharilal v. Commissioner of Income-tax, A.I.R. 1956 S.C.
B
27i. State of Orissa v. Bidyabhushan Mahapatra, [1963] Supp. 1 S.CR.
648 and Naursinlia v. State of Madhya Pradesh, A.J.R [1958] M.P. 397,
referred to.
CML APPELLATE JURISDICTION: Civil Appeal No. 2340 of 1966·
Appeal from the judgment and order dated October 7, 1966
of the Bombay High Court, Nagpur Bench in Special Civil AppliC
cation No. 940 of 1965.
M. C. Setalvad, N. S. Bindra and R. H. Dhebar, for appellant
No. I.
.
A. S. Bobde, and S. G. Kukdey, for respondent No. I.
M. M. Kinkhede, G. L. Sang/ii and A.
G. Ratnapa r khi, for
D
respondents Nos. 3-16, 19-31, 33, 34, 36-45, 47-53, 55 and 57.

## Text

THE STATE OF MAHARASHTRA & ANR.
v.
B. K. TAKKAMORE & ORS.
February 2, 196 7
B
[K. N. WANCHOO, R. S. BACHAWAT AND V. RAMASWAM!, JJ.)
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City of Nagpur Corporation Act, 1948 (C.P. & Berar Act 2 of 1950),
s. 40_8-i'vfuuicipality--Super.session-Grounds of interference
irz
writ
app/icatio11-0rder if SllStainable when one of tlze two charges found not
proved.
By s. 408 of the City of Nagpur Corporation Act, 1948 the State
Government may, after giving an opportunity to the Corporation to show
cause, pass an order superseding the Corporation, if it is of opinion that
the Corporation ls not competent or persistently makes default in the performance of the duties imposed on it by or under the Act.
After the
requisite show cause notice the State Government passed the impugned
Order superseding the Nagpur Municipal Corporation. The High Court,
in a writ petition, quashed the Order holding that the State Government
exercised its power under s. 408 on grounds which were not reasonably
related to its ~gitimate exercise and that the finding upon which the Order
was passed was rationally impossible on the materials before the State
Government. On appeal to this Court :
HELD : The Order of supersession was valid and could not be set
aside.
(i) Of the two grounds on which the opinion of the State Government
was based the first ground could not be sustained, firstly because the Corporation had no opportunity to show cause against the charge, and secondly,
because no reasonable person on the materials before the State Government
could possibly form the opinion that the charge was proved.
Regarding
the second ground there were materials before the State Government IJl)On
which It could find that the Corporation was not competent to perform
the duties imposed upon it. [S88H; S92D)
In a writ application the court will not review the facta as an appellate
body. But the Order of supersession is liable to be set aside, as in excess
of the statutory power under s. 408, if no reasonable person on a proper
consideration of the materials before the State Government will form the
opinion that the Corporation is not competent to perform or persistently
defaults in the performance of the duties imposed on it. The Order is also
liable to be set aside if it was passed in bad faith or due opportunity to
show cause was not given. [585H]
(ii) The Order cannot be set aside for the reason that one of the
grounds is found to be non-existent or irrelevant. The Order, read with
the show cause notice shows that in the opinion of the State Government
the second ground by itself was serious enough to warrant action under
s. 408. [595 A-Bl
H
An administrative or quasi-judicial Order based on several grounds, all
taken together, cannot be sustained if it be found th.at some of the grounds
are non-existent or irrelevant and there is nothing to show that the authority would have passed the Order on the basis of the other relevant and
584
llU1'llBWB OOUllT UPOl.TS
(1967) 2 S.C.R.
existing grounds. But, an Order based on several grounds some of which
A
att found to be no~xistent or irrelevant can be sustained if the Court is
satisfied that the authority would have passed the Order on the basis of
other relevant and existing grounds and the exclusion of the irrele\11nt or
non-.,xistent grounds could not have affected the ultimate opinion or
decision. (594 E-G]
Dwarka Das Bhatia v. State of lammu and Kashmir, [1965] S.C.R 948.
Dhiraji/al Girdharilal v. Commissioner of Income-tax, A.I.R. 1956 S.C.
B
27i. State of Orissa v. Bidyabhushan Mahapatra, [1963] Supp. 1 S.CR.
648 and Naursinlia v. State of Madhya Pradesh, A.J.R [1958] M.P. 397,
referred to.
CML APPELLATE JURISDICTION: Civil Appeal No. 2340 of 1966·
Appeal from the judgment and order dated October 7, 1966
of the Bombay High Court, Nagpur Bench in Special Civil AppliC
cation No. 940 of 1965.
M. C. Setalvad, N. S. Bindra and R. H. Dhebar, for appellant
No. I.
.
A. S. Bobde, and S. G. Kukdey, for respondent No. I.
M. M. Kinkhede, G. L. Sang/ii and A.
G. Ratnapa r khi, for
D
respondents Nos. 3-16, 19-31, 33, 34, 36-45, 47-53, 55 and 57.
The Judgment of the Court was delivered by
Bacbawat, J. This appeal arises out of a writ petition filed by
respondent No. I before the Nagpur Bench of the Bombay High
Court, challenging the show-cause notice dated July 21. 1965 and
the order dated September 29, 1965, superseding the municipal
corporation of the city of Nagpur. In July, 1962, the term of office
of the present Councillors commenced. On July 21, 1965, the
Government of Maharashtra issued a notice to respondent No. 1, the
Mayor of the Nagpur Municipal Corporation, asking him to show
cause why the corporation should not be superseded. On August I,
1965, respondent No. I filed his reply to the show-cause notice.
On September 29, 1965, the State Government passed the impugned
order superseding the corporation under ss. 408 and 409 of the City
of Nagpur Corporation Act 1948 (C. P. & Bcrar Act II of 1950).
On September 30, 1965, respondent No. 1 filed a writ petition challenging the show-cause notice and the order of supersession. The
High Court allowed the writ petition and quashed the order of
supersession. The High Court held that the State Government
exercised its power under s. 408 on grounds which were not reasonably related to its legitimate exercise and the finding upon which the
order was passed was rationally impossible on the materials before
the State Government. The State of Maharashtra now appeals to
this Court on a certificate granted by the High Court.
By an order
of this Court, the Administrator of the City of Nagpur appointed
under the order of supersession of September 29, 1965, has been
oined as the second appellant.
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MAHARASHTRA v. TAKKAMORE (Bachawat, J.)
585
Section 408 of the City of Nagpur Corporation Act 1948 1s
m these terms :-
"408. (1) If at any time upon representations made or
otherwise it appears to the State Government that the Corporation is not competent to perform, or persistently makes
default in the performance of the duties imposed on it by or
under this Act or any other law for the time being in force,
or exceeds or abuses its powers the State Government may,
after having given an opportunity to the Corporation to
show cause why such an order should not be made, or, if it
appears to the State Government that the case is one of
emergency, forthwith issue an order directing that all the
Councillors shall retire from office as and from such date
as may be appointed and declare the Corporation to be
superseded. Such order shall be published in the Gazette
and the reasons for making it shall be stated therein.
(2) Notwithstanding anything' contained in sections 17
and 20, all Councillors shall vacate their office from the
date mentioned in any order under sub-section (!)."
The consequence of supersession of the corporation under
s. 408 is that all its members vacate their office, all powers and duties
of the corporation, the Standing Committee and the chief executive
officer may be exercised by the administrator of the city appointed
by the State government, and all property vested in the corporation
vests in the administrator (s. 408).
The conditions for the exercise of the power under s. 408 are
clearly stated in the section. It must appear to the State government
that the corporation is not competent or persistently makes default
in the performance of the duties imposed on it by or under the Act
or any other law for the time being in force, or exceeds or abuses
its powers. Except in cases of emergency, the State government
must give to the corporation an opportunity to show cause why the
order under the section should not be made. If on a consideration
of the explanation submitted by the corporation, the State government considers that there is no ground for making the order, the
Government may drop the proceeding. Otherwise, it may issue
an order declaring the corporation to be superseded and directing
that all the Councillors shall retire from office. The order must be
published in the Gazette and the reasons for making it must be stated
therein. There is no appeal to the court from the order under s. 408.
In a writ application the court will not review the facts as an appellate
body. But the order is liable to be set aside if no reasonable person
on a proper consideration of the materials before the State government could form the opinion that the corporation "is not competent
to perform, or persistently makes default in the performance of the
duties imposed on it by or under this Act or any other law for the
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SUPllBMB COtmT IU!POllTS
(1967] 2 S.c.R.
time being in force, or exceeds or abuses its powers". Likewisct
A
the order is liable to be set aside if it was passed in bad faith or
if in a case which was not one of emergency, due opportunity
to show cause was not given to the corporation. In all such cases,
the order is in excess of the statutory power under s. 408 and is
invalid.
On the question whether the order under s. 408 is an administrative or quasi-judicial act, our attention.was drawn to the decisions
in Municipal Committee, Karali and Another v. The Stale of Madhya
Pradesh(') and Shri Radheshyam Khare and Anr. v. Tire State of
Madhya Pradesh
and Otlrers.(2) These cases turned on
the
construction of ss. 53A and 57 of the C. P. & Berar Municipalities
Act 1922 ~ct II of 1922). The point whether the order under s. 408
is quasi-judicial or administrative act is not very material, for
it is common ground that the present case was not one of emergency
and the Stale government was bound to give opportunity to the
corporation lo show cause why the order should not be made.
The order dated September 29, 1965 was in these
terms:-
"Whereas it is
reported to the Government of
Maharashtra that the Municipal Corporation of the City
of Nagpur (hereinafter referred to as 'the Municipal
Corporation')
constituted under the City of Nagpur
Municipal Corporation Act, 1948 (C.P. & Berar Act
II of 1950) (hereinafter referred to as 'the said Act')
(a) has. since the present Councillors entered upon
their office, planned its expenditure on the basis of
uncertain teceiptS· as shown below, that is to sayB
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Year
Receipts in budget as Actual of previous
r
1963-64
1964-65
1965-66
passed by Corporation
year
Rs. in lacs
351
221
258
Rs. in lacs.
173
190
(200 to 215 lacs anticipated).
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and without exercising the proper controls provided by or
under the .i;aid Act has allowed its financial position 10
deteriorate rapidly and seriously to such an extent that the
free cash balance of Rs. 5. 81 lacs approximately in March
1962 was reduced to Rs. 53.000 approximately on the 12th
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July, 1965; and that the Corporation had no funds even to
(I) A.LR. J9l8 M.P. 323.
(2) [1959) S.C.R. t44-0.
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MAHARASHTRA v. TAKKAMORE (Bachawat, J.)
587
disburse the salaries of its officers and servants as is
noticed from the Resolution of the Municipal Corporation
No. 98, dated the 4th September, 1965; and
(b) has neglected to undertake the improvement of
water supply and to provide a sufficient supply of suitable
water for public and private purposes;
And whereas, an opportunity was given to the Municipal Corporation to show cause why in the aforesaid circumstances an order of supersession under sub-section (1)
of section 408 of the said Act should not be made;
And whereas, after considering the reply of the
Municipal Corporation and subsequent submissions made
by it the Government of Maharashtra is of the opinion that
the Municipal Corporation is not competent to perform the
duties imposed on it by or under the said Act;
Now, therefore, in exercise of the powers conferred by
sub-section (I) of section 408 and sub-section (I) of section
409 of the said Act, and of all other powers enabling it in this
behalf, the Government of Maharashtra for the reasons
specified aforesaid, hereby-
(1) directs that all the Councillors of the Municipal
Corporation shall retire from office as and from thi:
!st day of October, 1965;
(2) declares the Municipal Corporation to be
superseded from that date; and
(3) appoints Shri D. H. Deshmukh to be the Administrator of the City of Nagpur."
From the order it appears that there were two grounds on
which the State government formed the opinion that the corporation was not competent to perform the duties imposed on it by or
under the Nagpur Municipal Corporation Act, 1948.
Annexure 2 to the show-cause notice dated July 21, 1965 set
out the following facts relatable to the first ground mentioned in
paragraph l(a) of the order:-
"II. (I) In March 1962, the free cash balance with the
Corporation was Rs. 5 ·81 lacs. On 12-7-65, the opening
cash balance of the Corporation was Rs. 53,821. The
Statement 'A' appended hereto will reveal the financial
position
of the Corporation.
On the
basis
of
average daily receipts the Corporation will have an opening
balance of Rs. 7 ·74 lacs on 1 -8-65 as against that their
immediate liabilities are cf the order of Rs. 30 · 84 lacs. It is
588
SUPRBMB COUl!.T 1.BPOl.TS
[1967) 2 &.C.R.
thus clear that the Corporation is heading for a grave
financial crisis and it will not be in a position even lo pay
fully the salaries and wages of their permanent and temporary employees.
Under Chapter JV of the City of Nagpur
Corporation Act, the Corporation is required to pay
salaries to their officers and servants as provided for in
Sections 47, 49 and 50 of the said Act. The liability arising
out of the payment of salaries and wages is the third charge
on the municipal fund the previous two charges being repayment of all loans payable by the Corporation under
Chapter IX of that Act and the second being the payment for
discharge of all liabilities imposed on the Corporation in
respect of debts and obligations and contracts of the
Municipality of Nagpur, to whom the Corporation is a
successor.
It is assumed that such liabilities do not any
longer exist.
Thus the payment of salaries etc .. is
the
second charge on the municipal fund, and it is very obvious
from the figures in Statement 'A' that the Corporation is not
in a position to discharge that liability."
The opinion of the State government so far as it is based on
the first ground cannot be supported. The show-cause notice did
not mention the charge that the Councillors planned the expenditure
on the basis of uncertain receipts or that they did not exercise
proper controls provided by or under the Act.
:'-lo opportunity
was given to the corporation to explain the charge.
Without
giving such an opportunity, the State government could not lawfully
find that the charge was proved. The cash balances of the corporation vary from day to day.
No reasonable person
could
possibly come to the conclusion that the financial position of the
corporation had deteriorated from the fact that the cash balances
were Rs. 5,81,000 in March 1962 and Rs. 53,000 on July 12, 1965.
The statement that the corporation had no funds to disburse the
salaries of its officers and servants had no factual basis.
As a
matter of fact, the corporation paid the salaries. The dearness
allowam:e was not paid because the hills were not-scrutinized. The
resolution dated September 4, 1965 referred to in the order was
passed long after the show-cause notice was issued, and the corporation was not given an opportunity to explain it. The resolution did
not say that the corporation had no funds even to disburse the
salaries of its officers and servants. The corporation resolved to
raise a loan of Rs. 15 lacs from the State Government, but the loan
was not raised. The High Court also pointed out that many of
the statements in the statement "A" referred to in the show-cause
notice were factually incorrect. The opinion of the State government based on the first ground cannot he sustained, firstly because
the corporation
had no opportunity to show cause against the
charge, and secondly, because no reasonable person on the materials
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MAHARASHTRA v. TAKKAMORE (Bachawat, J.)
589
before the State government could possibly form the opinion that
the charge was proved.
The second ground referred to in paragraph 1 (b) of the order
dated September 29, 1965 is more serious. Section 57(l)(k) of the
City of Nagpur Corporation Act, 1948 provides that the corporation shall make adequate provision by any means or measures
which it may lawfully use or take for .......... "(k) the management and maintenance of all municipal water-works and the
construction and maintenance of new works and means for providing
sufficient supply of suitable water for public and private purposes."
The charge was that
the corporation neglected to undertake
the improvement of water supply and to provide a sufficient
supply of suitable water for public and private purposes. The
relevant facts were set out in annexure 1-I(l) to (4) and annexure II
to the show-cause notice. It is common ground that the water
supply of the city of Nagpur was inadequate. The population of
the city was fast increasing and it was the duty-0f the corporation to
augment the supply. The improvement of the head works at the
Kanhan Stage III and also the re-modelling and redesigning of the
distribution system was necessary for augmenting and improving
the water supply. The work at Kanhan Stage III commenced in
1964 and for that purpose the Government sanctioned an ad hoc
loan of Rs. 21 lacs. The cost of the remaining work at Kanhan
Stage III and the work of remodelling and redesigning of distribution
system was estimated to be Rs. 70 lacs. The corporation could not
meet the cost without raising a loan. It had the power to raise a
loan for this purpose with the previous sanction of the State government under s. 90 of the City of Nagpur Corporation Act 1948. The
corporation was not in a position to raise the loan in the open market
unless the repayment of the loan was guaranteed by the Government. It approached
the Government to give the guarantee.
The Government was willing to give the guarantee if two conditions
were fulfilled, (I) the corporation would meter the water supply
immediately, and (2) in the annual budget, the budget of the water
works department for the supply of water would be shown separately.
The Government was not willing to give the guarantee unless these
conditions wereJulfilled. In May/June, 1965, these conditions were
communicated by the minister in charge to the municipal commissioner and the chairman of the standing committee. On June 5,
1965, the standing committee resolved:
"(i) The Corporation may raise in the open market
loan of Rs. 70 lacs for the purpose of completing the Kanhan
Stage III head works and provision of filteration plant and
for remodelling and redesigning
the water distribution
system in Nagpur Corporation area.
590
SUPRBMI! COURT REPORTS
[1967) 2 S.C.R.
(ii) The principle of universal mctcrisation sh<>uld be
accepted and all water connection in future should only
be in the meter system.
(iii) The principle of providing a separate sulxidiary
budget for water supply should be accepted."
At a meeting held on June 30, 1965, the corporation appears to
have disapproved of the standing committee's resolution regarding
the principle of universal meterisation and setting up a separate
subsidiary budget for water supply though no specific resolution to
that effect was passed. A meeting of the corporation on July 5,
I 965 was convened to discuss the matter of raising a loan of Rs.
70 lacs.
In the notice calling the meeting, the following office
note appeared at the foot of the relevant agenda:-
"In this connection the State Government demanded
the following two assurances from the Corporation,
(1) Nagpur Corporation should meter the water
supply immediately.
(2) In the
annual
budget
of the Corporation,
budget of the water works department should
be
shown separately for supply of water.
In the said
budget provision for payment of loans, sinking fund and
future increase in expenditure should be made separately. After making these
provisions the Corporation
can expend the money for other works."
On July 5, 1965, the meeting was adjourned. On July 12,
1965, the corporation passed the following resolution:-
"The Corporation gives its approval to the raising of a
loan of Rs. 70 lakhs, in the next three years.
Such a loan
comprising of Rs. 24 lakhs for Kanhan 3 Stage scheme and
Rs. 45 lakhs for imrrovcment in the Distribution System
necessitated in view of the additional 29 million gallons of
water that will be available after completion of the Kanhan
3 Stage Scheme.
The office should take necessary action to obtain
the guarantee of the State Government for raising this
loan in the open market in accordance with the above
Resolution."
The resolution is not printed in the paper book, but an agreed copy
of the resolution was filed before us.
The State government was
of the view that by the resolution dated July 12, 1965, the corporation refused to accept the two conditions mentioned in the office
note and thereby made it impossible for the corporation to meet
the cost of construction of the head works and the remodelling and
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MAHARASHTRA V. TAKKAMORE (Bachawat, J.)
591
redesigning of the distribution system and to provide a sufficient
supply of water for the public and private purposes. The corporation could not raise the loan without the Government guarantee
and the government could not reasonably guarantee the loan
unless the two conditions of universal meterisation and the separate
budget for the water supply were accepted. The two conditions
were reasonable. The adoption of universal meterisation would
have curtailed the wastage of water and secured adequate revenues
necessary for the repayment of the loan and the setting up of an
adequate sinking and development fund for the water supply. A
separate budget for the supply of water would have ensured th;lt the
receipts from the supply of water were allocated to the expenditure
on the water supply scheme. The answer of the corporation was twofold. The corporation said firstly that the resolution dated July 12,
1965 neither accepted nor rejected the two conditions and the question of accepting the conditions was left for future negotiations with
the government after the government would he approached for the
sanction of the loan under s. 420(2)(r) of the City of Nagpur Corporation Act 1948, read with City of Nagpur Corporation Loans Rules
1951. The corporation said secondly that the cost of immediate
meterisation of the old connec.tions would be Rs. 52 lacs and it
was impossible for the corporation to raise this sum, nor could it
lawfully divert any portion of the loan of Rs. 70 lacs for meeting
this cost.
The High Court accepted the contention that at the meeting
held on July 12, 1965, the corporation had resolved that the matter
with regard to the conditions imposed by the government for giving
the loan should be left for further negotiations with the government.
But it is to be noticed that the resolution dated July 12, 1965 did not
state that there should be any further negotiations with the government on the matter, nor did it disclose the financial problem with
regard to meterisation or the basis upon which further negotiations
should take place. On June 30,' 1965, the corporation had talked
out the recommendation of the standing committee with regard to
the universal meterisation and separate budget.
In this background,
the State government could reawnably hold that the passing of the
resolution excluding the office note amounted to virtual rejection of
the conditions mentioned in the note. The High Court was in error
in accepting the first contention.
The High Court was also in error in holding that the Government passed the order of September 29, 1965 witliout considering
that universal meterisation posed a formidable problem which could
not be overcome without a loan of Rs. 52 lacs in addition to the loan
of Rs. 70 lacs. The resolution of July 12, 1965 did not state that
the corporation wanted an additional loan of Rs. 52 lacs for meeting ·
the cost of universal meterisation. Even in the answer to the showcause notice, the corporation did not say that it wanted to raise
592
SUPIU!MB COUil T REPORTS
(1967] 2 s.c.R.
an additional loan of Rs. 52 lacs. The answer stated that the raising
of this sum for the present was an impossibility. There is nothing
to show that the State government would not have guaranteed repayment of this additional loan or that it was not possible to raise
the loan backed by a government guarantee. In the writ petition
respondent No. I gave a summary of the reply to the show-cause
notice.
But there was no specific averment in the petition supported
by affidavit that Rs. 52 lacs was necessary for the meterisP.tion and
that the raising of this sum was an impossibility. That is why the
point was not dealt with in the return to the writ petition.
Even
assuming that the meterisation would cost Rs. 52 lacs. there is nothing
to show that the government would not have guaranteed the loan for
this sum or that the corporation could not have raised the loan with
this guarantee.
Moreover. if the government was right in assuming
that the corporation had refused to entertain the proposal of
meterisation, the question of raising funds for the meterisation
would not arise and would be irrelevant. The government passed
the order after taking into consideration the reply to the show-cause
notice. There were materials before the State Government upon
which it could find that the corporation had neglected to undertake an improvement of water supply and to provide a sufficient
supply of water for private and public purpose. On the basis of
this finding, the State government could form the opinion that the
corporation was not competent to perform the duties imposed on
it by or under the Act.
Mr. Bobde contended that the opinion of the State government was based on two grounds and as one of them is found to be
non-existent or irrelevant, the order is invalid and should be set
aside. The cases relied on by him may be briefly noticed. In a
number of cases, the Court has quashed orders of preventive
detention based on several grounds one of which is found to be irrelevant or illusory. After reviewing the earlier cases, Jagannadhadas J,
in Dwarka Dass Bhatia v. The State of Jammu and Kashmir (1) said:
"The principle underlying all these decisions is this.
Where power is vested in a statutory authority to deprive the
liberty of a subject on its subjective satisfaction with reference to specified matters, if that satisfaction is stated to be
based on a number of grounds or for a variety of reasons
all taken together, and if some out of them are found to be
non-existent or irrelevant, the very exercise of that power is
bad. This is so because the matter being one for subjective
satisfaction, it must be properly ba~ed on all the reasons on
which it purports to be based. If some out of them are
found to be non-existent or irrelevant, the Court cannot predicate what the subjective satisfaction of the said authority
would have been on the exclusion of those grounds or
(I) [19561 S.C.R. 948, 955.
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MAHARASHTRA v. TAKKAMORE (Bachawat, J.)
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reasons. To uphold the validity of such an order in spite
of the invalidity of some of the reasons or grounds would be
to substitute the objective standards of the Court for the
subjective satisfaction of the statutory authority. In
applying these principles, however, the Court must be
satisfied that the vague or irrelevant grounds are such as, if
excluded, might reasonably have affected the subjective
satisfaction of the appropriate authority. It is not merely
because some ground or reason of a comparatively unessential nature is defective that such an order based on
subjective satisfaction can be held to be invalid. The Court
while anxious to safeguard the personal liberty of the
individual will not lightly interfere with such orders."
In Maursinha v. State of Madhya Pradesh('), the Madhya Pradesh
High Court, following the principle of the preventive detention
cases, held that an order of supersession of the municipality under
s. 208 of the Madhya Bharat Municipalities Act 1954, based on
several grounds, most of which were found to be irrelevant, was
invalid. In Dhirajla/ Girdharilal v. Commissioner of l11come-tax(2)
Mahajan, C. J., said with reference to the order of an income-tax
tribunal :
"The learned Attorney-General frankly conceded that
it could not be denied that to a certain extent the Tribunal
had drawn upon its own imagination and had made use of a
number of surmises and con~ectures in reaching its result.
He, however, contended that eliminating the irrelevant
material employed by the Tribunal in arriving at its conclusion, there was sufficient material on which the finding
of fact could be supported. In our opinion, this contention
is not well founded. It is well established that when a court
of facts acts on material, partly relevant and partly
irrelevant, it is impossible to say to what extent the mind of
the court was affected by the irrelevant material used by it
in arriving at its finding. Such a finding is vitiated because
of the use of inadmissible material and thereby an issue of
law arises."
In State of Orissa v. Bidyabhushan Mahapatra('), an administrative
tribunal in a disciplinary proceeding against a public servant found
the second charge and four out of the five heads under the first
charge proved and recommended his dismissal. The Governor
after giving him a reasonable opportunity to show cause against the
proposed punishment dismissed him. The High Court held that
the findings on two of the heads under the first charge could not be
sustained as in arriving at those findings the tribunal had violated
rules of natural justice. It held that the second charge and only
(I) A.l.R. 1958 M.P. 397.
(2) A.J.R, 1956 S.C. 271, 273.
(3l [1963! Supp. 1 s.c.R. 648, 665-6.
594
SUPREME COURT RliPOllTS
[1967] 2 S.C.ll.
two heads of the first charge were established and
directed the
Governor to reconsider whether on the basis of these charges the
punishment of dismissal should he maintained.
On appeal, this
Court set aside the order of the High Court.
In the course of the
judgment, Shah, J, observed:
"If the High Court is satisfied that if some but not all
of the findings of the Tribunal were 'unassailable', the
order of the Governor on whose powers by the rules no
restrictions in determining the appropriate punishment are
placed, was final, and the High Court had no jurisdiction to
direct the Governor lo review the penalty, for as we have
already observed the order of dismissal passed by a competent authority on a public servant, if the conditions of the
constitutional protection have beeh complied with, is not
justiciable. Therefore if the order may be supported on
any finding as to substantial misdemeanour for woich the
punishment can lawfully be imposed, it is not for the Court
to consider whether that ground alone would have weighed
with the authority in dismissing the public servant. The
Court has no jurisdiction if the findings of the enquiry officer
or the Tribunal prima facie make out a case of misdemeanour, to direct the authority to reconsider that
order because in respect of some of the findings but not all
it appears that there had been violation of the rules of
natural justice.,.
The principle underlying these decisions appears to be this.
An
administrative or quasi-judicial order based on several grounds,
all taken together, cannot be sustained if it be found that some of the
grounds are non-existent or irrelevant, and there is nothing to show
that the authority would have passed the order on the basis of the
other relevant and existing grounds.
On the other hand, an order
based on several grounds some of which are found to be nonexistent or irrelevant, can be sustained if the court is satisfied that
the authority would have passed the order on the basis of the other
relevant and existing grounds. and the exclusion of the irrelevant
or non-existent grounds could not have affected the ultimate opinion or decision.
Now, the opinion of the State government that the corporation
was not competent to perform the duties imposed on it by or under
the Act. was based on two grounds one of which is relevant and the
other irrelevant.
Both the grounds as also other grounds were set
out in paragraphs 1 and 2 read with annexures I and 2 of the showcause notice dated July 21, 1965.
Para 3 of the show-cause notice
stated, "And whereas the grounds aforesaid jointly as well as
severally appear serious enough to "arrant action under section
408(1) of the said Act". The order dated September 29, 1965,
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MAHARASHTRA v. TAKKAMORE (Bachawat, J.)
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read with the notice dated July 21, 1965 shows that in the opinion
of the State government the second, ground alone was serious
enough to warrant action under s. 408(1) and was sufficient to establish that the corporation was not competent to perform its duties
under the Act. The fact that the first ground mentioned in the
order is now found not to eiist and is irrelevant, does not affect
the order. We are reasonably certain that the State government
would have passed the order on the basis of the second ground
alone. The order is, therefore, valid and cannot be set aside.
In the result, the appeal is allowed, the order of the High Court
is set aside and the writ petition is dismissed. In all the circumstances, there will be no order as to costs in this Court and in the
court below.
Y.P.
Appeal allowed.
M.lSupCii67-'