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Judgment
P.V. Dixit, C.J.—This order will also govern Miscellaneous petition No. 32 of 1961.
These two petitions challenging the legality of two orders dated 26th and 27th April 1961 of the Mayor of the Municipal Corporation, Gwalior, passed u/s 25 of the Madhya Bharat Municipal Corporation Act, 1956, have been filed in the following circumstances.
The Municipal Corporation, Gwalior, leased out its Town Hall building to the respondent No. 4, Rajeshwar Dayal, for the purpose of exhibition of films on a monthly rent of Rs. 2000/-. In 1955 the Corporation instituted a suit for ejectment and recovery of arrears of rent from Rajeshwar Dayal. That suit is still pending. By a resolution passed on 27th May 1959 a Committee was constituted u/s 48 of the M. B. Municipal Corporation Act, 1956, for considering the matter of suit against Rajeshwar Dayal and its early termination. On 25th April 1961 the Commissioner made a report to the Mayor about the progress in the suit filed against Rajeshwar Dayal and recommended that the defendant''s offer of a settlement in the suit should be accepted as the terms and conditions of the suggested compromise were reasonable and sound. The Commissioner added that the matter was urgent and the Mayor should pass an order u/s 25(2) of the Act. On the next day the Mayor, purporting to act u/s 25(2) of the Act, passed an order authorising the Commissioner to take appropriate legal steps for a settlement of the suit on the terms stated by him in his order. On 27th April 1961 the Mayor passed another order u/s 25(2) which stated that the Commissioner had obtained possession of the Town Hall from Rajeshwar Dayal and that it was not desirable that the building should remain unlet, and directed that the building be let out to the respondent No. 3, Vijaya Bahadur Singh on the terms indicated by him and that the lease deed be also registered at a very early date.
On 27th April 1961 the Commissioner presented in the Court of the Additional District Judge, Gwalior, an application for recording the compromise said to have been arrived at between the defendant and the Corporation. The defendent Rajeshwar Dayal denied that any compromise had been agreed to by him and stated that his agent, Shiv Raj, Bihari, had no power whatsoever to effect a compromise in the suit and that the compromise was a fraud on him and thus illegal. The question whether any lawful agreement or compromise was arrived at between the parties is still pending for consideration before the learned Additional District Judge. On 4th May 1961 the Corporation passed a resolution staying the registration of the lease deed which was to have been executed in favour of Vijay Bahadur Singh. It must be added that on 12th May 1961 the action of the Mayor u/s 25(2) was placed before the meeting of the Corporation for consideration. This was done under the second proviso to Section 25(2) of the Act. The Corporation did not express any opinion on it on the ground that the matter was subjudice in the suit filed against Rajeshwar Dayal.
Shri Sen, learned counsel appearing for the petitioner Chokhesingh, contended that the power u/s 25(2) could be exercised by the Mayor only in cases of emergency: that there was no emergency of any kind in regard to the settlement of the suit filed against Rajeshwar Dayal and leasing out the property to Vijay Bahadur Singh; that the action of the Mayor was mala fide; and that u/s 25(2) all that the Mayor could do was to direct the execution or stoppage of any work of or any act and not the doing of a new act altogether. The reply of Shri Patankar, learned counsel appearing for the Mayor, was that section 25(2) empowered the Mayor to exercise in cases of emergency all the powers, duties and functions conferred or imposed upon the Corporation or the Commissioner and that the Mayor alone was the judge of the fact whether an emergency calling for the exercise of the power given to him u/s 25(2) existed.
The answer to the question raised by this petition as regards the legality of the two orders of the Mayor admits of no doubt, and is clear from the language of sub-section(2) of Section 25. Under the Act the entire executive power for the purpose of carrying out the statutory provisions is vested in the Commissioner who u/s 55 is the principal Executive Officer of the Corporation. It is not disputed that barring Section 25 there is no provision in the Act conferring on the Mayor any executive power. Section 25 runs as follows:-
25(1) The Mayor shall have administrative control over the office of the Corporation and its staff.
(2) The Mayor, or in his absence the Deputy Mayor may, in cases of emergency, direct the execution or stoppage or any work or any act, the immefiate execution or stoppage of which, in his opinion, is necessary for the purposes of this Act:
Provided that-
(1) he shall not act under this Section in contravention of any order of the Corporation prohibiting the execution or stoppage of any particular work or act; and
(2) he shall report the action taken under this Section, and the reasons therefor to the Corporation at its next meeting. The decision of the Corporation thereon shall be final.
It will be seen that the first sub-section speaks of the administrative control of the Mayor over the office of the Corporation and its staff. It does not confer on the Mayor any power to exercise, perform of discharge the powers, duties and functions conferred or imposed upon or vested in the Municipal Corporation or the Commissioner. Sub-section (2) says that in cases of emergency the Mayor may "direct the execution or stoppage of any work or any act" if in his opinion the immediate execution or stoppage of the work or the act is necessary for the purposes, of the Act. Now the expression in sub section (2) that the Mayor "may direct the execution or stoppage of any work or any act" necessarily means that at the time of giving the direction with regard to the "execution or stoppage" the work or act to be done or to be stopped, if already under execution, must have already been decided upon by the Competent Authority under the Act. That sub-section does not authorise the Mayor to take a decision about a work or any act and order the execution or stoppage of that work or act. This is plain enough. There must first be a decision of the Competent Authority as regards the work or the act to be done. The execution stage follows such a decision. The Mayor''s power under sub-section (2) relates to the stage of execution. If in any emergency he thinks that immediate execution or stoppage of any work or act is necessary, then he can direct the execution or stoppage of that work or act. It must be noted that u/s 80, the Corporation alone was competent to grant a lease of the Town Hall on the terms and for the period for which it was proposed to be given on lease to the respondent No. 3 and under the proviso to Section 400 (1) of the Act the Commissioner could not compromise the suit against Rajeshwar Dayal without the previous sanction of the Corporation. The argument of the learned counsel appearing for the Mayor, therefore, involves the suggestion that u/s 25 (2) the Mayor has the power to ride roughshod over the provisions of the Act and do anything even if it be contrary to the provisions of the Act if that is, in his opinion, necessary to meet an emergency. There are no words in Section 25 giving such unbriddled power to the Mayor. On the other hand, the words "the immediate execution or stoppage of which, in his opinion, is necessary for the purposes of this Act" occuring in sub-section (2) themselves suggest that the Mayor''s action must be in conformity with the provisions of the Act. Clearly an action necessary for the purposes of the Act, cannot be done which is contrary to it. That sub-section (2) gives to the Mayor only the power to direct the execution or stoppage of any work or any act and not the power to decide upon any work or act to be done and other its execution becomes further clear by the first proviso to sub-section (2). That proviso provdies that the Mayor shall not act in contravention of any order of the Corporation prohibiting the execution or stoppage of any particular work or act. The proviso thus contemplates that the power which is given to the Mayor by the substantive sub-section (2) relates only to the execution or stoppage of any work or act and may be used for directing the execution of any work or any act contrary to any order of the Corporation. That is why the proviso makes an express reservation that the Mayor shall not act in contravention of any order of the Corporation prohibiting the execution or stoppage of any particular work or act. It is thus plain that the two orders dated 26th and 27th April 1961 of the Mayor purporting to have been passed u/s 25 (2) were wholly outside the scope of the power conferred on the Mayor by that provision.
In this view of the matter, it is not necessary to consider whether when the Mayor made the two impugned orders there was any emergency or whether the exsistence of an emergency justifying the making of an order u/s 25(2) was a matter of which the Major was the sole judge, or whether the Court can examine the correctness of his view that an emergency existed. Before us, learned counsel for the petitioner vehemently submitted that the action of the Mayor was mala fide. For the purposes of this petition, it is wholly unnecessary to determine whether the Mayor acted bona fide or mala fide. Assuming that he acted bona fide, the two orders would still be ultra vires the power conferred by Section 25 (2). The question whether the Mayor acted bona fide or mala fide has an important bearing on the reality of the settlement said to have been arrived at between the parties to the suit against Rajeshwar Dayal and it would not be proper for us to make any comments on the conduct of the Mayor, that may even remotely influence or prejudice the decision of the Judge trying the suit against Rajeshwar Dayal on the application filed by Commissioner under Order 23, Rule 3 C. P. C. For this reason, we refrain from saying anything as to whether the Mayor acted bona fide or mala fide in passing the two orders.
It must, however, be added that the decision taken by the Corporation at its meeting on 12th May 1961 that as the matter of compromise was sub judice in the suit filed against Rajeshwar Dayal it was not necessary for the Corporation to express any opinion on the Mayor''s two orders were erroneous. Under the second proviso to Section 25(2) the Mayor is required to report to the Corporation at its next meeting the action taken by him under sub-section (2) together with his reasons therefor, and the Corporation is required to examine the action of the Mayor and take some decision with regard to it. The Corporation may affirm the action of the Mayor. It may denounce it or modify it. But some decision has to be taken by the Corporation. When the matter is reported to the Corporation under the said proviso, it cannot just sit on the fence and avoid giving any decision.
On behalf of the respondents it was also said that the petitioner Chokhesingh, who is merely a rate-payer and a member of the public has no right to ask for the issue of a writ for quashing the two orders of the Mayor. Reliance was placed upon In Re: Jatindra Mohan Sen Gupta, . In our view rate-payer has sufficient interest to complain against any action of the Mayor or Corporation which, according to him, would cause financial loss to the Corporation or would not be in the interest of the Corporation. A rate-payer is not a mere stranger. He is directly interested in the moneys which can be realised or are realisable under the Act for being credited in the municipal fund and in the proper application of the fund. The rate-payer''s interest may be small but it is nonetheless real and sufficient to entitle him to question the action of the Corporation or the Mayor. His right to do so does not depend on the question whether the action of the Mayor or the Corporation has or has not actually resulted in any loss to the Corporation. If he is a rate-payer and if according to him the action taken is not in the interest of the Corporation, then he is entitled to complain against it. The decision in J. M. Sen Gupta vs. H. E. A. Cotton (supra) that a person applying for a writ of mandamus must show that he has a real and special interest in the subject matter and the interest must not only be specific but it must also be special to him no doubt supports the objection raised on behalf for the respondents. But with great respect to the learned Judge of the Calcutta High Court we do not think that this is the correct view. The decision of the Calcutta High Court was dissented from in The Municipal Corporation for the City of Bombay Vs. Govind Laxman Savant, and by the Calcutta High Court in Narendra Nath Chakravarty Vs. Corporation of Calcutta and Others, . In the Bombay case a rate-payer of the Bombay Municipal Corporation applied for a direction restraining the Corporation from concluding and executing a contract with the Hindusthan Construction Company Ltd., which according to the applicant was in violation of the provisions of the City of Bombay Municipal Act, 1888. It was urged that a rate-payer was not entitled to maintain such an application. The contention was rejected. Delivering the judgment of the Court the learned Chief Justice of the Bombay High Court said-
It is perfectly true that the law ordinarily discourages a large body of persons who have a common interest from litigating with regard to their interest in separate suits. The policy of the law is that in such cases a representative suit should be brought in which the interest of all should be finally and completely adjudicated upon. But to this ordinary rule there are certain exceptions, and the most important exception is that when you have members of a Corporation who are all equally interested in the Corporation carrying out its activities according to its charter, if the Corporation acts illegally or contrary to its charter or misapplies its funds, then every member of the Corporation has the right to file a suit to prevent the Corporation from so acting. The same principle applies to a rate-payer. Every rate-payer has the right to prevent the public body to which he pays the rates from acting contrary to law or contrary to its own charter. In these cases the law assumes that the member of the Corporation or the rate-payer has a specific legal interest which entitled him to come to Court in support of his right and in order to prevent the Corporation or the public body from acting contrary to law or their own charter. There seems to be no reason in principle why the member of the Corporation or the rate-payer should only come to Court by way of a suit, and why he should be debarred from invoking the jurisdiction of the Court u/s 45, whether a relief would be granted to him u/s 45 or not is another matter.
A similar view was taken in Narendra Nath vs. Corporation of Calcutta (supra) where the learned Judge dissented from J. M. Sen Gupta vs. H. E. A. Cotton (supra) and followed the Bombay decision. Both the petitioners here, one of whom is a rate-payer and the other is a councillor, are, therefore, competent to question the legality of the Mayor''s orders.
For these reasons, both these petitions are allowed and the orders dated 26th and 27th April 1961 of the Mayor are quashed. The applicants shall have costs of the petitions from the Mayor. Counsel''s fee in each case is fixed at Rs. 100/-. The outstanding amount of the security deposits shall be refunded to the petitioners.