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Judgment
Chopra, J.—A common question of law involved in the above four petitions under Art. 226, Constitution of India, is whether an order of the State Government under S. 16 or 22 of the Punjab Municipal Act is liable to be quashed if it is made without hearing the person adversely affected by it.
Section 16 (1) of the Act authorises the State Government to remove, by notification, any member of a Municipal Committee amongst so many other things with which we are not here concerned if, in the opinion of the State Government he has flagrantly abused his position as a member of the Committee or has through negligence or misconduct been responsible for the loss, or misappropriation of any money or property of the Committee. A proviso appended to this clause of the section lays down that
before the Provincial Government notifies the removal of a member under this section, the reason for his proposed removal shall be communicated to the member concerned, and he shall be given an opportunity of tendering an explanation in writing.
Under cl. (2) of the section the person so removed is liable to be disqualified for election for a period not exceeding five years.
Section 22 of the Act, besides making a provision for the resignation of a President or Vice-President of a Municipal Committee maintains that any President or Vice-President may be removed from office by the State Government on the ground of abuse of his powers or of habitual failure to perform his duties or in pursuance of a resolution requesting his removal passed by two-third of the members of the committee. A proviso almost identical to the one in S. 16 (1) is again added to this section and it is to the following effect:
Provided that before the State Government notifies his removal, the reason for his proposed removal shall be communicated to him by means of a registered letter in which he shall be invited to tender within twenty-one days an explanation in writing, and, if no such explanation is received in the office of the Secretary, Transferred Departments, within twenty-one days of the despatch of the said registered letter, the State Government may proceed to notify his removal.
Out of the petitioners, Kundan Lal was the President of the Municipal Committee, Jind, and Gopi Ram was its Vice-President, On 30-9-1953, the State Government served them notices under S. 16 (1) (e) read with S. 22 of the Punjab Municipal Act, in force mutatis mutandis in this State, to show cause in writing within a period of twenty-one days why they should not be removed from the presidentship as well as membership of the Committee and also disqualified from contesting municipal elections.
The notice to Kundan Lal petitioner recited that on receipt of certain complaints from the citizens of Jind an inquiry into the affairs of the Jind Municipality was conducted by the Director of Local Bodies and it was found
that you (Kundan Lal) had flagrantly abused your position as a President of the Municipal Committee by conniving with Shri Gopi Ram Vice-President, Municipal Committee, Jind, in making encroachments on the municipal lands worth about rupees one lac and subsequently in purchasing the land by Shri Gopi Ram from the Industries Department, thereby causing appreciable loss to the property of the Committee.
After a reference to similar complaints and the inquiry conducted by the Director of Local Bodies thereon, the notice to Shri Gopi Ram petitioner gave instances, under four sub-heads, of the alleged flagrant abuse of his position as a member of the said committee. The instances relate to encroachments made by Gopi Ram on municipal lands and his subsequent purchase of the land from the Industries Department on nominal prices.
Kundan Lal and Gopi Ram duly submitted their explanations in writing. Notifications Nos. 56 and 57 dated 25-1-1954, issued in the name of President of India, in respect of Kundan Lal and Gopi Ram respectively, removed them from their respective offices as President and Vice-President of the committee and also from its membership and further disqualified them from election for a period of two and three years respectively.
Shri Om prakash was the President of the Municipal Committee, Narnaul, and Shri Girwar Prashad petitioner its member. On 30-12-1953, they were served with notices, Om Prakash under S. 16 (1) (e) and S. 22 and Shri Girwar Prashad under S. 16 (1) (e) of the Punjab Municipal Act, and they were required to tender their explanations in writing to the various charges levelled against them. As many as twelve instances of abuse of his position as a President and also a member were mentioned in the case of Shri Om Prakash.
Shri Girwar Prashad was charged of the flagrant abuse of his position as a member of the Committee by importing goods of certain consignments - particulars of which were given in the notice - without paying octroi duty and to have threatened a municipal employee. Both of them were further informed that the relevant records would be open to their inspection at the office of the Deputy Commissioner, Mohindergarh.
In spite of the explanations separately submitted by them, the Government, through notifications Nos. 59 & 60 dated 5-2-1954, issued in the name of the President of India, removed Shri Om Prakash from the office of the President and membership of the Committee and Girwar Prashad from its membership and also directed that each of them was disqualified for municipal elections for a period of three years.
In these petitions under Art. 226 of the Constitution the petitioners pray for a writ of certiorari, mandamus or other appropriate writ, order or direction quashing the said orders of the State Government and restraining it from giving effect to those orders. A number of objections were raised in the petitions, but out of them counsel for the petitioners have confined themselves to and pressed only one relating to illegality of the orders on the ground that they were passed without giving full opportunity to the petitioners to rebut the charges levelled against them.
On behalf of Kundan Lal it is further urged that the notice served on him was not only defective but was vague and indefinite. This aspect of his case shall be dealt with separately after disposing of the identical objection in the four petitions.
The contention is that the principles of natural justice require that before a person is condemned, (i) he should he given a notice, (ii) an opportunity should be allowed to him to make representation, and (iii) there should be some authority or tribunal to consider the representation.
As regards the first and the third, there is no dispute. With respect to the second it is urged that the rule is not confined to a written representation, out it further requires that the person whose rights are to be so seriously affected by a decision on complaints against him, must be orally heard and showed to lead evidence to rebut me charges.
In the present case serious charges were leveled against the petitioner the proposed action was to have the effect of stigmatising than and jeopardising their interests and yet no opportunity was given to them to meet and rebut those charges. The orders were passed at their back and without hearing them, it is, therefore, urged that the orders made in utter disregard of the rules of natural justice are illegal, ineffective and void.
It is no doubt an elementary principle, to be followed by persons or authority exercising Judicial or quasi-judicial powers, that an order should not be made against a mans interest without there being given to him an opportunity of being heard. The person affected must be told the nature of allegations against him and he must have the opportunity to answer them.
The question, however, is how far should that opportunity extend? Dees it also necessarily include an opportunity to lead evidence in rebuttal and to be orally heard? No hard and fast rule of universal application can be said to exist in this connection; in determining whether principles of substantial justice have been complied with in matters of procedure, regard must be had to the nature of the issue to be determined and the constitution of the tribunal. In a court of law there is an obligation to adopt, the regular forms of legal procedure, but they may not be strictly enforceable in a hearing before a tribunal or authority other than a law court.
In the cases in context, it is not necessary for me to go into the question and decide as to what, according to the rules of natural justice, should have been the procedure to be followed by the authority that made the impugned orders. The procedure is provided by the statute itself. The authority is a creature of the statute and has to follow the procedure laid down by it.
It has to be remembered that the Punjab Municipal Act which applies to the State mutatis mutandis and under which the orders were made, only requires that before the State Government notifies the removal of a person from presidentship or member ship of a municipal committee, it shall communicate to him the reasons for the proposed removal and invite him to tender an explanation in writing. It is for the Legislature, who have every knowledge of judicial principles and rules of natural justice, to decide how far these rules are to be incorporated in the procedure to be followed by the tribunal or authority in exercise of the powers conferred by the statute.
In the present case, the legislation has provided for a representation in writing and it goes no further. By making this specific provision the other rules of procedure are clearly excluded. Whether that procedure gives much or little opportunity of being heard depends solely on what the legislature has thought right it is beyond the province of courts to criticise a procedure provided by the statute and to approve or disapprove it. Their concern is to see that it is strictly observed and followed. Further requirements according to the notions on natural justice cannot of allowed to improve upon what is expressly provided by the statute, it would by going beyond, the mandate of the legislation and importing something into its provisions to (sic) that the State Government, before passing Lire orders in question, should have heard the petitioners in person and allowed them to read evidence to rebut the allegations against them. If no procedure was provided it could have been forcefully urged that the rules of material justice should not nave been ignored.
The Act being not silent vain regard to the procedure, the State Government was under no obligation to follow wholly, or in special respects, the usual procedure of a court of law so long as the procedure adopted by the Government was the one laid down by the statute itself, its orders cannot be question of that score. The statutory rule of procedure in this case does not provide for oral testimony or right to be oraily heard. On the other hand it is limited to ''an explanation in writing''. It offends against the ordinary rule of interpretation of a statute to add to it some-thing when is not actually there.
A similar objection was raised in the case of - ''Bhagwan Singh v. State of Pepsu'', Civil Misc No. 55 of 1953 D/- B-12-1953 Pepsu (A) before my learned brother Hon''ble the Chief Justice.
The petitioner in that case was removed from the presidentship and membership of the Safidon Municipal Committee and was disqualified for election for a period of two years. In a petition under Art. 223 of the Constitution on his behalf, it was argued that the order was passed in his absence and without giving him any opportunity to be heard.
My Lord the Chief Justice accepted the petitioner''s contention that it was a case of the exercise of the powers
in an arbitrary, one-sided and whimsical manner as the procedure adopted offends against rules of natural justice.
All the same, the learned Chief Justice on a reference to the proviso to S. 16 (1) of the Punjab Municipal Act disallowed the objection with the following observations:
Beyond that safeguard there is nothing else in the Act (Punjab Municipal Act) that can come to the help of the member or the president to enable him to disprove the allegations against him or to satisfy the Government that he is not guilty. Importation of notions of natural justice into the provisions of the Act would not be in consonance with recognised rules of construction. I have therefore no alternative but to hold that under the Municipal Act by which the petitioner''s case was governed he could not claim an open enquiry in which he could participate for disproving the charges and establishing his innocence.
With this view I am in respectful agreement.
The facts of an almost parallel case decided by their Lordships of the Privy Council - ''Local Government Board v. Alridge'', (1915) AG 120 (C) are these:
Section 17 of the Housing, Town Planning &c., Act, 1909, authorises and requires a local authority to make a closing order in respect of any dwelling-house in their district if it appears to them to be unfit for human habitation and to determine such order on being satisfied that such dwelling-house has been rendered fit for human habitation, and gives to the owner of the dwelling-house a right of appeal to the Local Government Board against the closing order and against the refusal to determine the same.
By S. 39 the procedure on any such appeal is to be such as the Local Government Board may by rules determine: provided that the rules shall provide that the Board shall not dismiss any appeal without having first held a public local inquiry and this provision was contained in rules made under this section by the Local Government Board.
On a petition by a party against whom a closing order in respect of his house was made under the Act and whose appeal, without giving him any hearing, was dismissed by the appellate authority, it was held,
(1) that a properly authenticated order of the Local Government Board dismissing an appeal under these sections is not open to objection on the ground that it does not disclose which of the officers of the Board actually decided the appeal, (2) that an appellant to the Local Government Board is not entitled as of right, as a condition precedent to the dismissal of his appeal, either (a) to be heard orally before the deciding officer, or (b) to see the report made by the Board''s inspector upon the public local inquiry.
In support of the petitioners'' contention reliance is placed on - ''Bhikulal Balbhadrasao v. The State of Madhya Pradesh'', AIR 1953 Nag 125 (C).
The petitioner in that case was the President of the Municipal Committee, Balaghat. The Government of Madhya Pradesh passed an order that the petitioner had incurred a disqualification under S. 15 (1) of C.P. and Berar Municipalities Act, 1922, and in view of that he had ceased to be the President of the Municipal Committee. The allegation against him was that the Vice President of the Committee had purchased some cloth from the cloth shop belonging to the petitioner, the cloth was required for preparing liveries of the peons employed by the municipal committee.
On behalf of the petitioner it was contended that this was done without his knowledge and that, therefore, no responsibility should be attached to him for what had been done. Secondly, it was urged that the sale of a commodity across the counter for a cash price was not hit by S. 15 (1) of the Act.
The learned Judges who decided the case accepted this contention and held that the act alleged against the petitioner did not amount to a contract so as to incur a disqualification as contemplated by S. 15 (1) of the Act.
They, however, proceeded to observe that the order of removal was also defective on the ground that the State Government, before it passed the final order, did not give to the petitioner an opportunity to show cause against the proposed action. This observation of the learned Judges appears to be in the form of an ''obiter''.
Moreover, it cannot be very much helpful to the petitioners in the present case, as it was based on the language of the particular Act under reference and the procedure provided thereunder. So far as can be gathered from the judgment, the notice in that case called upon the petitioner to show cause why he should not be treated as disqualified under S. 15 (1) of the Act.
Enabling a person merely to make a representation is not the same thing as giving him an opportunity of ''showing cause.'' The expression ''show cause'' connotes an opportunity of leading evidence in support of ones allegations and in controverting such allegations as are made against him. The present is a case where according to the law itself and also according to the notice, the person complained against was called upon to submit an explanation in writing.
I do not think this case can'' be regarded as an authority, Holding a contrary view. The contention of the petitioners must, therefore, fail.
It is next contended that s. 16 (1) as well as S. 22 of the Punjab Municipal Act require that an order thereunder should be preceded by a proposal before the State Government, notice of which has to be given to the person concerned - '' Raj Krishan Vs. Chief Commissioner, Delhi and Another, is relied upon as an authority in support of the contention.
In that case a notice under S. 16 (1) of the Punjab Municipal Act was issued, on his own initiative, by the Deputy commissioner, Delhi.
As observed in the judgment, there was not a syllable on the record to show that before the notice was issued the State Government was seized of the case or there was any proposal before the State Government that the petitioner should be removed from membership of the municipal committee. Even in the written reply on behalf of the State there was not the slightest suggestion that the notice was given under the authority of the State Government. The fact that the Deputy Commissioner thought, before he gave notice, that the case fell within S. 16 (1) (e) of the Act did not satisfy the requirements of the Act. It is the Provincial Government and not the Deputy Commissioner WHO can take action under S. 19 (1) or S. 22 of the Act.
Since a mandatory provision of the proviso to S. 16 (1) had not been followed, a case for the issuance of a writ was held to be made out and a direction for withdrawal of the Notification was issued. I fail to understand how this case or the contention of Shri Ram Karan Das has any application to the present case.
In the first instance, not only that no such objection was raised in any of the petitions but it was admitted that there was a proposal before the State Government. In the petitions, the contention was that reasons for the proposed action were not properly communicated to the petitioners. The question is one of fact and unless it was taken in the petition the opposite party had no chance to meet it. Secondly, the notice issued to the petitioner, the order subsequently made and other material on record make it abundantly clear that complaints against the petitioners were made to the State Government, inquiry into those complaints was conducted by the Director of Local Bodies and action thereon was taken by the State Government. There was thus a proposal before the, State Government and it was the State Government that issued notices to the petitioners.
On behalf of Kundan Lal petitioner it is further urged that the notice to him under Ss. 16 (1) and 22 of the Punjab Municipal Act is not only defective but is vague and indefinite.
The provisos appended to both these sections require that before any action can be taken against a member or office bearer of the Municipal Committee he shall be informed of the reasons of his proposed removal. The contents of the notice should be such as to enable him effectively to meet the charges levelled against him. This can be possible only if the notice gives every possible detail of all material facts on which the charges are based and makes him understand what Lie is to reply and explain. He should be told in the clearest terms and with, lull particulars as to what his faults are. All that the notice to Kundan Lal says is that "you have flagrantly abused your position as president of Municipal Committee Jind by conniving with Shri Gopi Ram Vice President Municipal. Committee, Jind, in making encroachments on the municipal lands worth about rupees one lac and subsequently in purchasing land by Shri Gopi Ham from the Industries Department thereby causing appreciable loss to the property of the Committee". The notice does not disclose any particulars of the encroachments made by Gopi Ram, which were those lands and when and how were they encroached upon. He was not told whether it was an act of omission or commission on his part that was complained of, how* and in what manner he was helpful to Gopi Ram in making the encroachments or in his subsequent purchase of the land from the Industries Department. The notice does not throw any light on any of these and number of such other points and without it it could not be expected of Kundal Lal to meet the charges fully or to prove his innocence for the same.
Again, in the notice Kundan Lal was only complained of having abused his position as President of the Municipal Committee. None of the conditions (a) to (g) of S. 16 (1) on which he could be removed from its membership, was mentioned. But the notice purported to be one under both the Ss. 16 (1) and 22, and required him to show cause in writing why he should not be removed from the presidentship and also the membership of the Committee.
Learned Advocate General, Shri Chetan Das, frankly concedes that the notice is indefinite and defective, but he contends that Kundan Lal could have easily known, and he in fact knew, what the complaint against him was. The argument is that Kundan Lal could have and must have seen the notice issued on the same day to Gopi Ram and from that he must have got all the necessary facts. Pointed reference is made to the written explanation submitted by Kundan Lal with a view to show that he in fact knew what the charges against him were, and that he had tried to meet them in his own way.
I do not think that would be the right approach to the matter. Mandatory provisions of the statute should have been strictly complied with before action of so serious consequences to the petitioner could be taken against him. He was removed from the presidentship and membership of the committee and was also disqualified from seeking election for a period of two years. This could not be done without affording him adequate opportunity to explain the charges on which action was proposed to be taken and without considering his answers to the same. It should not have been left to him to find out or imagine what allegations against him actually were. It was not for him to approach Gopi Ram for a copy of the notice sent to the latter in order to discover the purport of the allegations he was required to meet. Even if it were to be assumed that he has seen that notice before he put in his reply that does not absolve the State Government of its obligation to comply strictly with the requirements of law.
In the explanation submitted by Kundal Lal the very first objection he took in respect of it was that the notice was "very vague and of general nature" inasmuch as it did not name the land or lands which were encroached upon and subsequently purchased by Gopi Ram through his (Kundan Lal''s) connivance. Reference to some of the encroachments is no doubt made in the reply but that may be based on his own notions or some vague information derived from other sources. In my judgment, mandatory provisions of the Act and the procedure envisaged thereunder having not been strictly observed, the decision arrived at by the State Government and the order made in pursuance thereof against Kundal Lal petitioner cannot be regarded as valid or effective.
The power of obtaining a writ, direction or order of the kind mentioned in Art. 226 of the Constitution is not limited to judicial acts or orders in a strict sense, that is to say, acts or orders of a court of law sitting in judicial capacity. It extends of acts and orders of a competent authority or tribunal, including the Government in appropriate cases, which has power to impose a penalty or liability or to give decision determining the rights of the affected party or parties.
I do not see any force in the contention of the learned Advocate General that the order in this case was purely executive or administrative and therefore, not liable to be quashed or interfered with under the said article of the Constitution. When orders are passed or action is taken under a statute by a tribunal or authority which is vested with the power to take and enforce decisions regarding rights between rival parties or between them and the State, then the proceedings, orders, or actions of such tribunal or authority cannot be regarded as purely executive or administrative. I am not prepared to accept the contention that the order in question of the State Government which has got to decide a question of so vital importance to the petitioner in pursuance of a statutory power or duty, is one which is merely executive or administrative, and hence incapable of being corrected under Art. 226 of the Constitution.
In the result, the petitions of Gopi Rain, Om Prakash and Girwar Prashad are dismissed. The petition of Kundan Lal is allowed and the State Government is directed to withdraw its notification No. 56 dated 25-1-1954 whereunder the petitioner Kundan Lal was removed from the presidentship and membership of the Municipal Committee, Jind and disqualified for election for a period of two years. The successful party shall get its costs in each of the petitions. Counsel fee in each case shall be Rs. 50/-.
Passey C.J.
I agree.