TMI Blog1980 (9) TMI 280X X X X Extracts X X X X X X X X Extracts X X X X ..... orm all powers and duties of the New Delhi Municipal Committee until the said Committee was reconstituted. The preamble to the order of supersession recited that the Committee was incompetent to perform and had made persistent default in the performance of the duties imposed on it under the law had further abused its powers, resulting in wastage of Municipal funds. Four instances or grounds were mentioned. The first ground was that a clause for the payment of a mobilisation advance of Rs. fifteen lakhs was included in the contract awarded to M/s. Tarapore Co. for the construction of City Centre though such a clause did not find a place in the original contract with M/s. Mohinder Singh 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 mobilisation advance was also without the approval of the Lt. Governor. The second ground was that one B. K. Mittal was re-employed by the New Delhi Municipal Committee not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s and the proposal to take action to supersede the Committee since the result would have been the same. 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 vitiate 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Government necessary powers to annul or modify any proceedings which it may consider not to be in conformity with law. Sec. 238 is what we are directly 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Home Affairs Lord Denning M.R., observed : The speeches in Ridge v. Baldwin [1964] AC 40, show that an administrative body may, in a proper case, 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 expectation, of which it would not be fair to deprive him . It was held in that case that a foreign alien had no right to enter the country except 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 being allowed to stay for the permitted time. In Alfred Thangarajah Durayappah v. W. J. Fernando Ors. 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 dissolution and supersession of the Council in the Supreme Court of Ceylon, on the ground that there was a failure to observe the prin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... one of the three grounds : that it (a) is not 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 default 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 in 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 principle 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 entitled (as a matter of the most elementary justice) to be heard in its defence. Again this proposition requires no authority to 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 differ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sibilities, 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 upon the observance of the principles of natural justice before an order of supersession is passed. One of the submissions 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 is expressly provided in one provision and not so provided in another, opportunity is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lication. Other statutes providing for speedy action to meet emergent situations may well be construed as excluding the principle audi alteram partem. All that we say is that Sec. 238(1) of the Punjab Municipal 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 construction 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 7 1/2% of the value of the tender as `mobilisation advance' : On December 31, 1979, the New Delhi Municipal Committee addressed a letter to the Secretary (Local Self Government), De ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot agreed to the grant of mobilisation advance of ₹ 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 Singh 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 D.O. letter of even number dated February, 11, 1980, addressed to the President, New ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al Committee and if any information was given by the Committee such information was furnished and gathered in the course of an exploratory or fact finding expedition and was never intended to be an answer to an action-inspired notice. The second of the charges or allegations in the notice was that one B. K. Mittal had been re-employed despite the advice of the Central Vigilance Commission that proceedings for the imposition of a major penalty should be initiated against him. Our attention was invited to a letter dated November 20, 1979, from the Delhi Administration to the New Delhi Municipal Committee in which the Delhi Administration took to task and reprimanded the New Delhi Municipal Committee for re-employing B. K. Mittal. This letter cannot be construed as a notice to the New Delhi Municipal Committee to come forward with its explanation. The letter was peremptory and final and the indication was that the chapter was closed with the reprimand. Here again, there was nothing to indicate that any other action was contemplated against the Municipal Committee and that the Municipal Committee could offer its explanation if so minded. In regard to the third of the allegations ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed, if it is furnished in a casual way or for some other purpose. We do not suggest that the opportunity need be a 'double opportunity' that is, one opportunity on the factual allegations and another on the proposed penalty. Both may be rolled into one. But the person proceeded against must know that he is being required to meet the allegations which might lead to a certain action being taken against him. If that is made known the requirements are met. We disagree with the finding of the High Court that the Committee had the opportunity to meet the allegations contained in the order of supersession. Linked with this question is the question whether the failure to observe natural justice does at all matter if the observance of natural justice would have made no difference, the admitted or indisputable facts speaking for themselves. 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. But it will be a pernicious princ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In Annamunthodo v. Oilfields Workers' Trade Union, Lord Denning, in his speech said (at p. 625): Counsel for the respondent union did suggest that a man could not complain of a failure of natural justice unless he could show that he had been prejudiced by it. Their Lordships cannot accept this suggestion. If a domestic tribunal fails to act in accordance with natural justice, the person affected by their decision can always seek redress in the courts. It is a prejudice to any man to be denied justice . In Margarita Fuentes et al., v. Tobert L. Shevin, it was said (at p. 574): But even assuming that the appellants had fallen behind in their instalment payments, and that they had no other valid defenses, that is immaterial here. The right to be heard does not depend upon an advance showing that one will surely prevail at the hearing. 'To one who protest against the taking of his property without due process of law, it is no answer to say that in his particular case due process of law would have led to the same result because he had no adequate defense upon the merits' . In Chintepalli Agency Taluk Arrack Sales Cooperative Society Ltd., etc. v. Secretary ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ver had been given by the Government to the appellant. There is, therefore, clear violation of section 77(2) which is a mandatory provision. We do not agree with the High Court that this provision can by-passed by resort to delving into correspondence between the appellant and the Government. Such non-compliance with a mandatory provision gives rise to unnecessary litigation which must be avoided at all costs . The observations of this Court in Chintapalli Agency Taluk Arrack Sales Cooperative Society v. Secretary (Supra) are clearly against the submissions of the learned Attorney General. The matter has also been treated as an application of the general principle that justice should not only be done but should be seen to be done. Jackson's Natural Justice (1980 Edn.) contains a very interesting discussion of the subject. He says: The distinction between justice being done and being seen to be done has been emphasised in many cases. The requirement that justice should be seen to be done may be regarded as a general principle which in some cases can be satisfied only by the observance of the rules of natural justice or as itself forming one of those rules. Both expl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 will comes from a person who has denied justice that the person who has been denied justice is not prejudiced. As we said earlier where on the admitted or indisputable facts only one conclusion is possible and under the law only one penalty is permissible, the Court may not issue its writ to compel the observance of natural justice, not because it is not necessary to observe natural justice but because Courts do not issue futile writs. We do not agree with the contrary view taken by the Delhi High Court in the judgment under appeal. Every wrong action of a Municipal Committee need not necessarily lead to the inference of incompetence on the part of the Committee or amount to an abuse of the powers of the Committee. That is a matter to be decided by the State Government on the facts of each case. A Committee may admit that what it has done is wrong and yet may plead that its action does not reveal incompetence or an abuse of its powers. It may plead an honest error judgme ..... X X X X Extracts X X X X X X X X Extracts X X X X
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