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AMICUS AI
Citation Codes
Equivalent Citations
citation codes
Case Number
Attorney(S)
  • K.B. Asthana
  • S.C. Khare
Judges
  • M.C Desai, C.J
  • B. Mukerji
  • S.N Dwivedi, JJ.
Acts
  • Sub-Sec. (1) of Sec. 57 of the Municipalities Act (hereinafter called the Act)
  • 31 -7 -1956 and 1 -8 -1956. Court-fees Act (7 of 1870) (U.P. Amendment), S.7(iv)(a)
  • Government of India. Act, 1935. This Act, by its Sec. 240(3),
  • provisions of Sec. 7 of the Court-fees Act.
  • State Government". Sub-Section (1) of Sec. 58
  • provisions of S. 7 of the Court-fees Act.
  • Court-fees Act (7 of 1870), S.7(iv)s(c).
  • U.P. Municipalities (Amendment) Act
  • Sec. 7(iv)(a) of the Court-fees Act.
  • Sec. 7(iv)(c) of the Court-fees Act.
  • S. 7(iv)(c) of the Court-fees Act.
  • Section 297(1)(f), (h), (i), (j), (k)
  • COURT FEES ACT
  • Section 297(1)(k)
  • Section 297(1)(n).
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Cites
Cited by
Citation Codes
Equivalent Citations
citation codes
Case Number
Attorney(S)
  • K.B. Asthana
  • S.C. Khare
Judges
  • M.C Desai, C.J
  • B. Mukerji
  • S.N Dwivedi, JJ.
Acts
  • Sub-Sec. (1) of Sec. 57 of the Municipalities Act (hereinafter called the Act)
  • 31 -7 -1956 and 1 -8 -1956. Court-fees Act (7 of 1870) (U.P. Amendment), S.7(iv)(a)
  • Government of India. Act, 1935. This Act, by its Sec. 240(3),
  • provisions of Sec. 7 of the Court-fees Act.
  • State Government". Sub-Section (1) of Sec. 58
  • provisions of S. 7 of the Court-fees Act.
  • Court-fees Act (7 of 1870), S.7(iv)s(c).
  • U.P. Municipalities (Amendment) Act
  • Sec. 7(iv)(a) of the Court-fees Act.
  • Sec. 7(iv)(c) of the Court-fees Act.
  • S. 7(iv)(c) of the Court-fees Act.
  • Section 297(1)(f), (h), (i), (j), (k)
  • COURT FEES ACT
  • Section 297(1)(k)
  • Section 297(1)(n).
See more information ...
Smart Summary

Structured Summary of the Provided Legal Opinion

Factual and Procedural Background

The provided text contains two related judicial treatments concerning municipal regulations and court-fees issues.

1) Primary matter (reported at the start): The Division Bench reference concerned the validity of regulations printed at page 654 of the Municipal Manual (Notification No. 6471/XI-226-46, dated 29th November 1946) which prescribe procedure for dismissal, removal or reduction of municipal employees. The core factual element noted is that an Executive Officer of a municipal board (the first respondent) was removed from office in 1954 without the procedure set out in those regulations having been followed.

2) Secondary matter (Allahabad High Court judgment later in the text): Plaintiffs (members of a socio-religious association) sued for (a) declaration that proceedings of a meeting were illegal and ultra vires (valued at Rs. 5,000) and (b) an injunction restraining interference with their use of association-owned premises (valued at Rs. 200). The Civil Judge held the court-fee paid to be insufficient; the plaintiffs appealed under Section 6A of the Court-fees Act. The High Court addressed whether the injunction constituted a "consequential relief" under Section 7(iv)(a) of the Court-fees Act and accordingly whether the fee paid was adequate.

Legal Issues Presented

  1. Whether the regulations regarding dismissal, removal or reduction of municipal employees (Municipal Manual, 1946 Notification, printed at p.654) are valid and intra vires the State Government / municipal rule-making authority when applied to an Executive Officer of a municipal board.
  2. Whether an injunction claimed together with a declaratory decree (in the Allahabad High Court matter) is a "consequential relief" within the meaning of Section 7(iv)(a) of the Court-fees Act, and consequently whether the court-fee paid by the plaintiffs was sufficient (i.e., whether fee should be computed on the combined valuation claimed or on the value of the immovable property affected).

Arguments of the Parties

Appellants / Plaintiffs (as stated in the opinion)

  • In the municipal-regulations reference: appellants' counsel argued that the impugned regulations were not "still born" (i.e., void ab initio) and that at most they might have been ineffective in respect of Executive Officers but effective for other servants; further, that a subsequent amendment could make them effective for Executive Officers. (Desai and Dwivedi record and reject these contentions.)
  • Appellants contended that a rule purporting to have been made under one provision should be sustained if it could have been made under another power. (Court cites P. Balakotaiah to reject this contention.)
  • In the Court-fees matter: appellants (plaintiffs) argued that the injunction was an independent substantive relief (not merely consequential to the declaration) and thus the court-fee paid was sufficient.

Respondents / Government / Defendants (as stated in the opinion)

  • In the municipal-regulations reference: the position advanced against the validity of the regulations was that the rule-making powers in the relevant sections (Secs. 296, 297 and their clauses) did not authorize regulations prescribing a particular procedure for dismissal, removal or reduction of Executive Officers (because those matters were governed by resolutions under Secs. 57, 58, 69-A and were not encompassed by the heads such as "period of service" or clauses (e)–(m) / (n) of Sec.297(1)).
  • In the Court-fees matter: respondents contended that the injunction was consequential to the declaratory relief and therefore the court-fee payable was that prescribed by Section 7(iv)(a) (i.e., based on the valuation of both reliefs together or the value as prescribed by the proviso when directly affecting immovable property).
  • In the municipal-regulations context the opinion notes that Sri S.C. Khare (for appellants) submitted estoppel arguments (that the Government which made the regulations was estopped from challenging them); the court declined to decide estoppel on the reference.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Bhikaji Narain Dhakras v. State of Madhya Pradesh, (1955) 2 SCR 589; AIR 1955 SC 781 Distinction between laws which become void under Article 13 (which may be revitalised) and laws that were ultra vires at enactment ("still born"). Desai J. relied on the observations by Das, A.C.J. to support the proposition that a law ultra vires at its creation cannot be revived by subsequent events (the "still born" concept) and that the eclipse theory does not apply to such laws.
P. Balakotaiah v. Union of India, AIR 1958 SC 232 Principle that a rule purportedly made under one statutory power cannot be sustained by asserting it could have been made under a different power. Desai J. applied the principle to hold that regulations must state the authority under which they are made and cannot be saved by pointing to an unstated different source of power.
Rex v. Basudeva, AIR 1950 FC 07 Interpretation of "connected with" — rules made must bear a proximate, not remote, connection with carrying out statutory provisions. Dwivedi J. cited it in analysing the limits of Sec.296(2)(b) and to emphasise that rule-making power under that provision requires proximate connection to carrying out Act provisions.
Carbines v. Powell, 36 C.L.R. 88 Rule that rule-making authority cannot enlarge the field marked out by the parent statute; may complement but not supplement legislative powers. Dwivedi J. used this authority to say that regulations cannot add new limitations to powers granted by Sec.58(1) (i.e., cannot supplement statutory power to punish/dismiss by imposing additional procedural fetters).
Prakash Chandra v. State of U.P., Writ No. 2740 of 1957 (decided Apr. 22, 1960) Held (by a learned single Judge) that the impugned regulations could be supported by the phrase "period of service" in clause (k). Dwivedi J. noted the decision but explicitly disagreed with it, stating that the learned Judge's view is not correct for reasons explained in the opinion.
Kalu Ram v. Babu Lal, AIR 1932 All 485 (Full Bench) Definition of "consequential relief" — a relief which flows directly from the declaration and cannot be claimed independently of it. The Allahabad Bench followed this Full Bench definition in analyzing whether an injunction was consequential to a declaratory decree for court-fee purposes.
Madan Mohan v. Tejram George Coronation Hindu School Association, AIR 1949 All 207 Illustration where multiple reliefs were held to be consequential or interlinked such that valuation aggregated for court-fee; distinction between reliefs directly referencing property and those only indirectly affecting property. The Court relied on this case to illustrate the principle and to support the conclusion that the Proviso to S.7(iv)(a) applies only when the relief is directly and expressly with reference to immovable property.
Sri Krishna Chandraji v. Shyam Behari Lal, (S) AIR 1955 All 177 Clarified the fourth ingredient of consequential relief: such relief cannot be claimed in the absence of a claim for declaration as substantive relief. The Court cited this to define the ingredients of "consequential relief" and applied that definition to hold the injunction incidental to the declaratory relief.
Vibhuti Narain Singh v. Municipal Board, Allahabad, AIR 1958 All 41 Held that when a declaration of a right is sought and a permanent injunction to protect exercise of that right is also sought, the injunction is consequential to the declaration. The Court applied this precedent to support the conclusion that the injunction claimed in the present suit is consequential to the declaration and that S.7(iv)(a) applies.

Court's Reasoning and Analysis

Municipal Regulations Reference (Desai C.J. and Dwivedi J.)

The court's analysis proceeds along both textual and structural lines focused on the Municipalities Act and the content of the impugned regulation (Regulation No.1 printed in 1946). The reasoning has the following principal steps as reflected in the opinions:

  1. Textual distinction between "order" and "resolution": Desai C.J. observed that the impugned regulation speaks of an "order" in writing, whereas the statute (Secs. 58 and 69-A) contemplates punishment, dismissal or removal of an Executive Officer by a "resolution" (special resolution or ordinary resolution on recommendation). The court concluded "order" does not comprise "resolution," and therefore the regulation's language is mismatched with the statutory mechanism for Executive Officers.
  2. Headings in Sec. 297 and scope of delegated powers: Both judges examined Sec. 297(1)(k) and (n) (as they stood in 1946). They emphasized that clause (k) referred to "the period of service" and matters like gratuities and contributions to pension/provident funds, which are concerned with termination by expiry or superannuation, not dismissal or removal. Clause (n) permits regulations on "matters similar" to those listed, but the court found dismissal/removal are not similar to items such as allowances, leave, security or period of service.
  3. Limits on State Government regulation-making under Sec. 297(2): The State Government's power under sub-sec.(2) is coextensive with that of a board in respect of clauses (d) and (h)-(n). Therefore, if a board lacked power to regulate dismissal/removal, the State Government could not validly do so under that provision. The court emphasized that delegated legislation must be consistent with the Act and cannot abridge the board's statutory resolution-based power.
  4. Inconsistency with Sec. 58: The impugned regulations contemplated a two-step process (first a finding of guilt then a punishment decision) with specific opportunity to show cause against proposed punishment; Sec.58 envisions punishment/dismissal by a single special resolution (with right of appeal). The court found the regulation's procedure incompatible with Sec.58 because it would require two resolutions where statute requires only one.
  5. Distinction between "conditions of service" and "period of service": The court refused to read clause (k) and clause (n) broadly to include all "conditions of service" or the procedural fetters on dismissal/removal. It reasoned that "period of service" has a narrower connotation (superannuation, retirement benefits) and cannot reasonably be interpreted to include disciplinary termination procedures.
  6. Delegated-legislation principles and legislative exposition: Dwivedi J. relied on delegated-legislation interpretation principles — a delegate cannot extend the parent Act's field — and pointed to the 1953 amendment (adding "conditions of service including" to cl. (k)) as legislative exposition that the earlier phrase did not cover conditions of service; consequently, a subsequent amendment cannot retrospectively validate a regulation that was ultra vires when enacted. Desai J. similarly rejected revival by later amendment and invoked the "still born" concept (citing Bhikaji Narain Dhakras).
  7. Requirement that delegated regulations state their authority: Desai J. emphasized that a regulation must disclose the statutory authority under which it is made; it cannot be sustained by later asserting a different source of power not stated in the regulation (citing P. Balakotaiah).
  8. Conclusions from the combined reasoning: The court held that the regulation, insofar as it purported to govern dismissal, removal or reduction of Executive Officers, was ultra vires the State Government and could not be sustained under the identified sections (Secs. 296, 297 read as they stood in 1946).

Court-fees Matter (Allahabad High Court)

The Allahabad High Court set out to decide whether an injunction sought alongside a declaratory decree is a "consequential relief" under Section 7(iv)(a) of the Court-fees Act.

  1. The court surveyed precedent (Kalu Ram Full Bench, Madan Mohan, Sri Krishna Chandraji, Vibhuti Narain Singh) to distill the ingredients of "consequential relief": (1) relief flows directly from the declaration, (2) valuation cannot be definitely ascertained, (3) relief not specifically provided for in the Act, and (4) relief cannot be claimed independently of the declaration.
  2. Applying those elements, the court concluded that the injunction sought was incidental to and could not be granted independently of the declaratory relief; in other words, the injunction would fall if the declaratory relief were refused. Therefore, it was a consequential relief within the meaning of Section 7(iv)(a).
  3. The court examined the proviso to S.7(iv)(a) and precedent (Madan Mohan) regarding when the proviso (valuation based on immovable property) applies. It held the proviso applies only when the relief sought is directly and expressly with reference to immovable property; an indirect effect on property does not trigger the proviso.
  4. Consequently the court held that the court-fee should be paid on the aggregate amount at which the reliefs were valued in the plaint (Rs. 5,200) and not on the market value assigned to the building (Rs.12,000). The Civil Judge was directed to realize court-fee accordingly.

Holding and Implications

The opinions announce distinct final decisions for the two matters in the provided text.

1) Municipal regulations reference: HOLDING: The court held that the impugned regulations printed at p.654 of the Municipal Manual, insofar as they are intended to govern dismissal, removal and reduction of Executive Officers of municipal boards, are ULTRA VIRES the State Government (i.e., invalid).

Implications:

  • The immediate effect is that those regulations cannot be relied upon as a lawful constraint on a board's statutory power to punish, dismiss or remove an Executive Officer under Sec.58 and related provisions (as they stood in 1946).
  • The court rejected arguments that the regulations could be sustained under alternative statutory powers or revived by subsequent amendment; it emphasized statutory construction limits on delegated legislation and the need for regulations to disclose their originating authority.
  • The court recognized the desirability of procedural safeguards for municipal servants but made clear that judicial role is to interpret, not to legislate; remedy if any lies with the legislature or competent law-making authority.

2) Court-fees (Allahabad High Court) matter: HOLDING: The injunction claimed with the declaratory relief is a consequential relief within the meaning of Section 7(iv)(a) of the Court-fees Act; the court-fee is therefore payable on the amount at which the two reliefs were valued in the plaint (Rs. 5,200). The appeal was partly allowed accordingly.

Implications:

  • Direct consequence: The plaintiffs must have the correct court-fee realized on Rs.5,200; the Civil Judge was directed to realize the balance accordingly.
  • The decision applies settled principles (from Full Bench and subsequent authorities) about what constitutes a "consequential relief" for court-fee valuation: where an injunction directly flows from and cannot be claimed independently of a declaratory decree, the injunction is consequential.
  • No broader novel statutory principle was created by this decision; the court applied and followed existing precedents to the facts of the case.

Note on scope: Where the opinion explicitly declined to decide certain contentions (for example, the estoppel point raised by Sri S.C. Khare concerning government estoppel regarding the regulations), the court left those matters to be raised in the appropriate appeal hearing; thus no decision on estoppel was rendered in the reference.

Show full summary ...

    U.P State Through The Secretary Local Self Government, U.P Opp.-Party- v. Murtaza Ali And Another Proforma-.

    Judgement

    DESAI, C.J. :- I agree with my brother Dwivedi that the regulations published in Notification No. 6471/XI-226-46, dated the 29th November, 1946, and printed at p. 654 of the Municipal Manual. Uttar Pradesh, Vol. 1, 1952; are, in their application to an executive officer of a municipal board, ultra vires the State Government. Since we are overruling a decision of our brother Tandon, I consider it necessary to add a few words of my own.

    2. The Municipalities Act contains different provisions regarding appointment, punishment, dismissal etc. of different classes of officers and servants, and it is by no means certain that the impugned regulations are meant to govern the dismissal, removal or reduction of an executive officer. The prevision "every order of dismissal, removal or reduction shall be in writing" means that the regulations govern the dismissal, removal or reduction by an "order" and not by a "resolution" the board.

    An executive officer is liable to be punished, dismissed or removed by a special resolution of the board, (vide Sec. 58), as well as by an ordinary resolution of the board on a recommendation, made by the President after an enquiry under Sec. 69-A- In either case it is the resolution and not order of the board by which the executive officer is punished, dismissed or removed. "Resolution" is distinct from "order" and order" does not comprise a resolution. Regulation No. 21 refers to "order" and not "resolution".

    Further, the express requirement that the order must been writing suggests that the regulation is not meant to apply to a resolution because a resolution is always reduced to writing. An executive officer, or any other officer, can be dismissed, removed or reduced also by art order, provided that the order is of the State Government passed on a record of enquiry completed against him by the President and submitted with his recommendation to the State Government. It may be that the regulations, though expressed in wide language, are intended to apply when the State Government passes an order against an executive officer or other officer or servant.

    3. The Act contains provisions dealing with the heads "service" "conditions of service" and "period of service." Section 57(3) deals with conditions of service of executive officers and medical officers of health. Section 59(3) deals with conditions of service of officiating executive officers. Sections 66(2) and 68(2) deal with conditions attached to the appointment of secretaries and other officers.

    Section 297(1)(f), (h), (i), (j), (k) and (l) deals with regulations to be made by a board in respect of (a) monthly salaries of certain servants, (b) allowances of the servants employed by a board, (c) security to be furnished by a servant of a hoard, (d) leave to servants of a board, (e) the period of service of servants of a board and the conditions under which they are entitled to receive-gratuities or compassionate allowance on retirement, or on their becoming disabled through the execution of their duty and (f) contributions to a pension or provident fund established by a hoard. It is obvious from these provisions that the heads "service", "conditions of service" and "period of service" are different from one another. Even if the head "service" or "conditions of service might be said to comprise everything from the commencement to the termination of service, the head "period of service" cannot be said to comprise everything. How a service can be terminated may be a part of the conditions of service, but service can be terminated in various ways, such as by expiry of the period of service, by resignation, by death, by dismissal or by removal.

    Consequently "period of service is only one of several matters comprised in conditions of service or service. Conditions of service may include period of service but period of service does not include everything connected with service or conditions of service. Rules regarding conditions of Service may include rules regarding period of service, but rules regarding period of service cannot include rules regarding the termination of service otherwise than by expiry of the period of service.

    Consequently, rules regarding dismissal or removal do not come within the scope of rules regarding "period of service. Section 297(1)(k) (old or unamended) confers power to make regulation only in respect of "period of service", and not in respect of other matters relating to servants, such as dismissal or removal. When, a servant is dismissed or removed, he is dismissed or removed, even though the period of service has not expired; as a matter of fact dismissal or removal can be ordered only during service, i.e. so long as the period of service has not expired.

    The power to make regulations regarding gratuities and compassionate allowance conferred by Sec. 297(1)(k) along with thy power to make regulations regarding the period of service, confirms the view that I take; a question of payment of gratuity or compassionate allowance arises only when the service is terminated by expiry of the period of service and not when it is terminated by dismissal or removal. A servant, who is punished by dismissal or removal, is never thought to be entitled to a gratuity or compassionate allowance. Consequently the power to make regulations regarding dismissal or removal is not comprised in the, power to make regulations regarding period of service.

    4. An executive officer can be dismissed or removed only by a resolution of a board passed under Sec. 58 or 69-A. What procedure should be adopted by a board before passing such a resolution is not a matter included in "period of service", or "matters similar to those set forth in cls. (e) to (m)". The conditions of service of an executive officer are subject to the approval of the State Government, vide Sec. 57(3); the provision regarding punishment, dismissal or removal by a special resolution in the very next section indicates that punishment, dismissal or removal is not included in "conditions of service." When provision regarding punishment, dismissal and removal is made in Sec. 58, provision for the same could not have been made also in Sec. 57(3); in other words, "punishment", "dismissal" and "removal" are matters distinct from "conditions of service."

    5. The impugned regulations cannot be said to have been made by the State Government in exercise of the power conferred upon it by Section 57(3), because in exercise of that power it can only approve of the conditions of service imposed by a board and not itself impose conditions of service.

    6. It is not known what are the conditions of service of executive officers in this municipal board the appellant has not placed before us any rules made by the board regarding conditions of service of executive officers and apparently does not rely upon them.

    7. I agree with my learned brother that Section 297(1)(k) does not authorise a board to make regulations about the procedure to be followed by it for dismissing, removing or reducing its executive officer.

    8. A board cannot make these regulations even in exercise of the power conferred by Section 297(1)(n). "Dismissal", "removal" and "reduction" cannot be said to be matters similar to "allowances, "security," "leave," "period of service" and "contributions to a pension or provident fund". As a matter of fact they are matter" as distinct from if not more distinct trial "allowances", "security", "leave," "period of service" and "contributions" as they themselves are distinct from one another.

    9. The power of the State Government to make regulations conferred by Sec. 297(2) is the same as that of a board, and no regulation that cannot be made by a board would be intra vires the State Government. Further, the power to make regulations is limited by the condition that they must be consistent with the Act. The power conferred upon a board to punish, dismiss or remove its executive officer by a resolution cannot be abridged by such requirements as are contained in the impugned regulations.

    10. Only one resolution is required to be passed by a board for punishing, dismissing or removing its executive officer, and not two. The impugned regulations, on the other hand, contemplate two decisions, one finding the executive officer guilty and the other imposing punishment. Unless the board has first adjudged him guilty and tentatively decided to impose a certain punishment, it cannot, in compliance with regulation No. 1, give him an opportunity to show cause against the proposed punishment. Since it can act only through a resolution, it means that it must first adjudge him guilty by passing one resolution and then impose punishment upon him by passing another resolution, hut Sec. 58 contemplates only one resolution, and it follows that the procedure laid down in the impugned regulations cannot be followed and they would be inconsistent with Sec. 58.

    11. The regulations purport to have been made by the State Government in exercise of the power conferred by Sec. 297, Sub-Sec. (2) react with Sub-Sec. (1)(n) and not Sec. 296(2)(b). The Act makes a distinction between "rules" and "regulations;" Sec. 206 confers power to make rules, and Sec. 297 to make regulations. We are concerned with what is expressly called "regulations" and not "rules" therefore, they could not have been made in exercise of the power conferred by Sec. 296.

    Moreover, the regulations imposing restrictions on the power of a board to punish, dismiss or remove an executive officer by prescribing certain conditions to be fulfilled cannot be said to be made for the purpose of "carrying out the provisions of this enactment". I also agree with my learned brother that the amendment made in Sec. 297(1)(k), subsequent to the making of the-impugned regulations, will not breathe life into them, if they were lifeless when enacted.

    The eclipse theory may apply to a law that became void under Art. 13 of the Constitution but not to a law which was ultra vires the authority by which it was made. I rely on the observations made in Bhikaji Narain Dhakras v. State of Madhya Pradesh, (1955) 2 SCR 589 : ((S) AIR 1955 SC 781), by Das, A.C.J. at p. 599, drawing a distinction between existing laws becoming void under Art. 13 of the Constitution on the Constitution being given effect to and post Constitution laws inconsistent with the provisions of the Constitution, which "never came to life, but were still born as it were;" the former could be revitalised, but not the latter.

    12. I do not agree with the appellants counsel that the regulations were not still born, that at the most they were ineffective in respect of executive officers but were effective in respect of other servants and that after the amendment they could be effective in respect of executive officers also. In my view they were completely lifeless when made in 1946; as I explained earlier, the powers conferred by Secs. 296 and 297 did not include the power to make them.

    13. It was contended by the appellants counsel that a rule purporting to have been made by an authority in exercise of a certain power will be sustained if it could have been made under another power and not under the power under which it purports to have been made. The correct law is that if a rule purports to have been made under one provision it cannot be sustained under another provision even though it could have been made under it (see P. Balakotaiah v. Union of India, AIR 1958 SC 232).

    It is essential that an authority making a regulation in the exercise of a power conferred by a statute states it in the regulation itself, so that the public may know at once whether it is ultra vires or intra vires and may act accordingly. A regulation is made for the public and the public have a right to know the authority under which it is made, as soon as it is made, so that they know whether they are bound by it or not. That is why in delegated legislation the authority is stated. This object would be defeated if the delegate is permitted to take shelter behind an undisclosed authority. An act of a delegate purporting to act under one authority cannot be sustained by reference to another authority.

    14. I, therefore, hold that the regulations, if they are intended to govern dismissal, removal and reduction of executive officers, are ultra vires the State Government.

    14a.DWIVEDI, J . :-(Mukerji, J. concurring) A Division Bench of this court has referred for our opinion the following question :

    "Whether the regulations regarding dismissal, removal or reduction of Municipal employees, printed at page 654 of the Municipal Manual, 1952 Edition are valid?"

    15. The relevant regulation reads :

    "1. No officer or servant shall be dismissed, removed or reduced without a reasonable opportunity being given to him of showing cause against the action proposed to be taken in regard to him. Any written defence tendered shall be recorded and a written order shall be passed.

    2............"

    16. It is common ground between the parties that the first respondent was removed from the office of Executive Officer, Municipal Board, Sikandra Rao, by an order sometime in 1954 without adopting the procedure provided for in these regulations. The appellant however contends that non-compliance with these regulations does not vitiate the order, for the regulations are ultra vires the regulation making authority. These regulations were made in 1946 by the Provincial Government.

    17. Our answer to the question is in the negative. We shall now proceed to state our reasons.

    18. Sub-Sec. (1) of Sec. 57 of the Municipalities Act (hereinafter called the Act) enjoins upon a Municipal Board to appoint an Executive Officer by a special resolution. Sub-Section (2) thereof provides that "the appointment, salaries and conditions of service of Executive Officers" shall be "subject to the approval of the State Government". Sub-Section (1) of Sec. 58 confers power on a Municipal Board be punish, dismiss or remove its Executive Officer" and imposes two fetters on the power, namely, that (1) the power shall be exercised by a special resolution supported by not less than two-thirds of the members constituting a Municipal Board and (2) the Executive Officer shall have a right of appeal to the State Government against the order of punishment, dismissal or removal.

    It may be observed that S. 58 ex facie imposes no other limitations on the power of a Municipal Board to punish and dismiss its Executive Officer, and there is no statutory obligation on it to give him any opportunity of showing cause against the action proposed to be taken in regard to him. This statutory obligation is a recent legislative innovation in India, and its ancestry does not go further back than the Government of India. Act, 1935. This Act, by its Sec. 240(3), for the first time, created this statutory obligation in regard to dismissal, removal and reduction in rank of a civil servant; later, it was engrafted to Art. 311(1) of our Constitution. It was not in vogue when the Act was made in 1916, and perhaps this fact accounts for its omission from Sec. 58(1).

    19. Sec. 297 of the Act, in so far as it is pertinent for our purposes and as it stood in 1946, may now be set out :

    "Section 297(1) - A board may ......make regulations - as to all or any of the following matters :

    (a) . . . . . . . .

    (b) . . . . . . . .

    (c) . . . . . . . .

    (d) the establishment of Committees, other than merely advisory Committees, for any purpose, and the determination of all matters relating to the constitution and procedure of such committees;

    (e) the avoidance of any entry shown in the third column of Sch. II;

    (f) . . . . . . . .

    (g) . . . . . . . .

    (h) the absentee or other allowances of the servants employed by a board; (i) the amount and nature of the security to be furnished by a servant of a Board from whom it is deemed expedient to require security;

    (j) the grant of leave to servants of a board and the remuneration to be paid to the persons, if any, appointed to act for them whilst on leave;

    (k) the period of service of all servants of a board and the conditions under which such servants, or any of them, shall receive gratuities or compassionate allowances or retirement, or on their becoming disabled through the execution of their duty, and the amount of such gratuities or compassionate allowances; and the conditions under which any gratuities or allowances may be paid to the surviving relatives of any such servants whose death has been caused through the execution of their duty;

    (1) the payment of contributions at such rates and subject to such conditions as may be prescribed in such regulations, to a pension or provident fund established by the board or with the approval of the board, by the said servants;

    "(m) the conditions subject to which sums due to a board may be written, off as irrecoverable and the conditions subject to which the whole or any part of a fee chargeable for distress may be remitted;

    (n) All matters similar to those set forth in cls. (e) to (m) and not otherwise provided for in this sub-section;

    (o) . . . . . . . .

    (2) Provided that the Provincial Government may, if it thinks fit, make regulations consistent with this Act in respect of any of the matters specified in cls. (d) and (h) to (n) of Sub-Section (1) . . . . . . ".

    20. It will be seen that Sub-Sec. (1) enumerates certain matters which may form the topic of sub-legislation, by a Municipal Board, while Sub-Sec. (2) restricts the power of the State Government to make regulations with respect to the matters enumerated in cls. (d) and (h) to (n) of Sub-Sec. (1) Admittedly, cls. (d), (e) and (m) are not material to our purposes. Cls. (h), (i), (j) and (1) relate to matters during subsistence of the relationship of master and servant. Cl. (k) relates to super-annuation and break in service by disability or death of a servant, and matters connected therewith. None of these clauses seem to us to relate to matters associated with the formation and determination of the contract of service.

    These topics are foreign to them. The subject-matter of the impugned regulations is associated with determination of the contract of service which is characteristically different from superannuation and termination of service by death or disability. In the former there is complete disruption of the bonds o£ service by the supervention of a wilful act of the master or the servant; in the latter, service comes to an automatic end and without any act of the master or servant. Furthermore the relation of master and servant notionally subsists for some purpose in the case of superannuation, e.g. for the payment; of pension, gratuity, provident fund and compassionate allowance.

    Again, in some cases of superannuation payment of pension may also envisage unbroken obligation of the servants fidelity to his previous muster. There is no complete tearing of the bonds of service as is the case in dismissal and removal of a servant. We are accordingly of opinion that cl. (n) read with the phrase the period of service of all servants in cl. (k) cannot comprehend the subject-matter of the impugned regulations. What they provide for cannot be said to be similar to the topic of the period of service. There is no resemblance between them and they refer to different phases of service and carry different connotations.

    21. We are unable to lend liberal interpretation to the expression the period of service by reference to its genus service. The analogy of the rule of liberal construction of legislative heads in Sch. VIII to the Constitution cannot be extended to the construction of the scope of the topic of the period of service in cl. (k) by reference to its genus service so as to include the subject-matter of the impugned regulations which also belongs to the same genus. The reasons are obvious; Firstly Sec. 297 of the Act is not an organic law; secondly, this section is a specimen of delegated legislation. The analogy of the rules of interpretation in regard to delegated legislation would be more appropriate in the context. Delegated legislation prescribes a standard for the guidance of the delegated authority, and it cannot be so construed as to confer a power of making new laws inconsistent with the parent Act.

    22. It may also be helpful to refer to the U.P. Municipalities (Amendment) Act (VII of 1953) whereby the words conditions of service including were inserted by the Legislature between the word the and the words period of service in cl. (k). The amendment indirectly furnishes legislative exposition of the scope of the phrase the period of service. If the Legislature had considered that this phrase, read with cl. (n), includes conditions of service, which the impugned regulations purport to regulate, it would not have passed an Act in 1953 to add a surplusage in cl. (k). (See for the rule of legislative exposition Craies on Statute Law, 5th edition).

    23. In Prakash Chandra v. State of U.P., Writ No. 2740 of 1957, decided on April 22, 1960, a learned single Judge has held that the impugned regulations could be supported by the phrase period of service in cl. (k). With respect to the learned Judge we think that his view is not correct.

    24. The amended cl. (k) cannot breathe life into the void regulations, because the 1953 amendment is not retrospective. Section 300 of the Act, read with Sec. 23 of the U.P. General Clauses Act, also presents another hurdle in the way. A rule or regulation may be made by the Government after its previous publication in the U.P. Gazette and invitation and consideration of objections to it and by subsequent publication of it in its final shape in the U.P. Gazette.

    The impugned regulations might have been considered, as we do, by Municipal Boards to be ultra vires and consequently they might not have opposed it, when it was first published in the Gazette in 1946. Judicial support to the impugned regulations by the aid of the amendment would deprive Municipal Boards of their valuable statutory right to oppose enactment of a rule or regulation. We cannot therefore permissibly revitalise the regulations with the aid of the subsequent amendment.

    25. The impugned regulations cannot also be saved by the provisions of cl. (a) of Sub-Sec. (2) of S. 296 of the Act. Clause (a) empowers the Government to make a rule in regard to any matter wherefor power is conferred on it either expressly or impliedly by the Act or any other law. We have not been referred to any law except the Act for this purpose. No section of the Act, as it was in 1946, expressly makes a grant of power to the Government to make the impugned regulations. The words by implication in cl. (a) refer to those provisions of the Act which authorise the Government to make a rule or regulation in implied terms, e.g., Secs. 57(2), 77, 78(2).

    26. Clause (b) of Sub-Sec. (2) of Sec. 296 of the Act is also of no avail. It enables the Government to make rules consistent with the Act generally for the guidance of a board in any matter connected with carrying out of the provisions of the Act or any other enactment in relation to municipalities. Any matter, regarding which a rule may be made, should firstly be "connected with" the carrying out of the provisions of the Act or any other enactment, and, secondly, it should be designed to carry out the provisions of the Act or any enactment.

    The words "connected with" signify that any matter, with respect to which a rule is made, should bear a proximate and not remote connection with the object of "carrying out the provisions of the Act or any other law". (See Rex v. Basudeva, AIR 1950 FC 07 at p. 68). The phrase "carrying out the provisions of the Act or any other enactment" connotes that the rule, which is made under its canopy, should be restricted to the same field of operations as that marked out by the Act or any other law itself. The rule-making authority cannot enlarge legislatively that; field.

    In the guise of the phrase it is not open to the rule-making authority to add to the efficacy of the power by additional means. In other words, one may complement but not supplement a granted power. (See Carbines v. Powell, 36 C.L.R. 88 at p. 92). The power bestowed by the phrase will authorise the provision of subsidiary means of carrying into effect what is enacted in the Act or any other law itself and will comprehend what is incidental to the execution of their specific provisions. But such a power will not enable the rule making authority to add new and different means of carrying them out.

    27. It is argued that the impugned regulations are designed to carry out the provisions of Sec. 58(1) of the Act. We have not been referred to any other provision of the Act or of any other law. As already stated, that section bestows a power on a Municipal Board to punish, dismiss or remove its Executive Officer. The section further provides that the power shall be exercised by a special resolution supported by the prescribed majority of the members of a Municipal Board and subject to any order of the State Government on appeal.

    The rule-making authority may make rules for carrying out the provisions of this section. For example, it may make a rule, if there is already no provision in the Act, prescribing the mode of service of a notice regarding the special resolution on members it may provide how, when and by whom a meeting would be convened for...... considering the special resolution; it may further provide how the resolution shall be moved, discussed and passed. It may also regulate the procedure for appeal.

    The impugned regulation is embraced by none of these illustrations, nor does it appear to be subsidiary or incidental to Sec. 58(1) as a whole. It is plain that the regulations supplement, and not complement the provisions of Sec. 58(1), for they add a new limitation on the exercise of the power of punishing, dismissing and removing art Executive Officer. Consequently we have no doubt that they have overstepped the power conferred under Sec. 296(2)(b).

    28. We cannot also support the impugned regulations by the provisions of Sec. 57(2) of the Act, which declares that the appointment, salaries and conditions of service of an Executive Officer shall be, subject to the "approval" of the Government The word "approval", which means confirmation, is the key to an understanding of the real scope of this section; it implies that a Municipal Board should initiate tentatively a scheme providing for conditions of service of an Executive Officer, which would become final when confirmed by the Government. The section does not confer any independent power on the Government to regulate conditions of his service at; its own initiative.

    29. For the reasons discussed above we are of opinion that the impugned regulations are ultra vires the rule-and-regulation-making authority. Our answer to the question referred to us is accordingly in the negative.

    30. Sri S.C. Khare submits that the Government, which made the impugned regulations, is estopped from challenging their legitimacy. It is not for us to examine this submission, for it goes beyond the purview of the reference. Sri Khare may more properly raise this matter before the bench which would now hear the appeal.

    31. Before parting with the case we desire to make it clear that we should not be taken not to have appreciated the importance and necessity of the impugned regulations. Indeed we can say without hesitation that there is evident need of such regulations as a safeguard for municipal servants from arbitrary exercise of the power of dismissal and removal. But desirability and need is one thing; and its invalidity a different matter. As Judges we cannot affect our judgment by the wisdom or unwisdom of any law. Our duty is to interpret, and not to make a law; the latter is an exclusive domain of the law-making authority.

    32. The reference shall now go back with our answer to the hence for hearing the appeal.

    Question answered in the negative. AIR 1961 ALLAHABAD 483 (Vol. 48, C. 121) "B. Hirji, Dr. v. B. T. Shapoorji"

    ALLAHABAD HIGH COURT

    Coram : 1 J. D. SHARMA, J. ( Single Bench )

    Dr. B. Hirji and others, Appellants v. B.T. Shapoorji and others, Respondents.

    F.A.F.O. No. 289 of 1956, D/- 25 -11 -1960., against order of Civil Judge, Allahabad, D/- 31 -7 -1956 and 1 -8 -1956.

    Court-fees Act (7 of 1870) (U.P. Amendment), S.7(iv)(a) and Proviso - COURT-FEE - WORDS AND PHRASES - DECLARATION OF TITLE - INJUNCTION - Consequential relief - Meaning of - Mode of valuation - Suit for declaration and injunction - Injunction held to be consequential relief - Injunction, not directly affecting immovable property - S.7(iv)(a) applies hut Proviso does not apply.

    Court-fees Act (7 of 1870), S.7(iv)s(c).

    A relief flowing necessarily from a relief for declaration and not capable of being claimed independently of it is a consequential relief within the meaning of S. 7(iv)(c) of the Court-fees Act. The two reliefs must be asked for as one joint and indivisible relief, so that if the court in the exercise of its discretion refuses to pass a declaratory decree the claim for further relief also will fall with it. (S) AIR 1955 All 177 and AIR 1958 All 41 and AIR 1949 All 207 and AIR 1932 All 485 (FB), Foll. (Para 13)

    The Court has to see what is the nature of the suit and of the reliefs claimed having regard to the provisions of S. 7 of the Court-fees Act. It a substantive relief is claimed, though clothed in the garb of a declaratory decree with a consequential relief, the Court is entitled to see what is the real nature of the relief, and if satisfied that it is not a mere consequential relief but a substantive relief it can demand the proper court-fee on that relief irrespective of the arbitrary valuation put by the plaintiff in the plaint on the ostensible consequential relief. The maintainability or otherwise of a suit for a bare declaration is not conclusive of the nature of the suit for the purposes of court-fees. If the suit as framed is not maintainable under the law, the proper course is to dismiss the suit and not to treat it as something different from what it really is. (Para 8)

    The plaintiffs as members of a Socio Religious Association filed a suit for declaration that the proceedings of a particular meeting of the Association were illegal and ultra vires with a prayer for injunction restraining the defendants from interfering with or obstructing in any manner the plaintiffs in their use and enjoyment of the building belonging to the Association. The declaratory relief was valued at Rs. 5,000/- and the relief for injunction was valued at Rs. 200.

    Held (1) that the relief of injunction was incidental to the main relief of declaration and therefore court-fee was payable under S. 7(iv)(a) (U.P.).

    (2) that the case did not fall within the proviso to S. 7(iv)(a) (U.P.) since the relief of injunction, indirectly affected immovable Property. For application of the proviso the reference to immovable property must be direct and express. The court fee was therefore payable not on the value of the building but on the amount at which the two reliefs had been valued in the plaint viz. Rs. 5,200. AIR 1949 All 207, Rel. on. (Paras 15, 16)

    Cases Referred : Courtwise Chronological Paras

    (32) AIR 1932 All 485 (V 19) : ILR 54 All 812 (FB), Kalu Ram v. Babu Lal 8, 11

    (49) AIR 1949 All 207 (V 36) : ILR (1949) All 410, Madan Mohan v. Tejram George Coronation, Hindu School Association 10, 15

    (55) (S) AIR 1955 All 177 (V 42), Sri Krishna Chandraji v. Shyam Behari Lal 12

    (58) AIR 1958 All 41 (V 45), Vibhuti Narain Singh v. Municipal Board, Allahabad 12

    R.C. Ghatak, for Appellants; R.K. Kackar, G.N. Kunzru and Lalji Sinha, for Respondents.

    Judgement

    This is a plaintiffs appeal under Sec. 6A, Court-fees Act against an Order dated the 31st July, 1956 of the learned Civil Judge, Allahabad, holding that the court-fee paid by the plaintiffs was insufficient.

    The plaintiffs claimed the following reliefs :

    1. That it may be declared that the entire proceedings of the meeting of 14-2-1952 including the resolutions passed, therein are illegal, ultra vires and null and void as regards the Mandli which is neither wound up by them nor can be wound up for any reasons whatsoever (valued at Rs. 5,000).

    2. That the defendants be restrained from interfering with or obstructing in any manner whatsoever the plaintiffs in their use and enjoyment of the "Bazam Gandhi Hall" property belonging to the Mandli as members thereof (valued at Rs. 200).

    2. The plaintiffs case, in brief, was that the parties were the members of a Socio-Religious Association called the Bazame Jashane Roze Bahrain Mandli, which is popularly known as the Mandli; the Association owned a hall known as Bazam Gandhi Hall situate at 7, Canning Road, Allahabad. On the 14th February, 1952 some of the defendants passed certain resolutions for winding up the Mandli which they had no right to do. The entire proceedings of the meeting were mala, fide and null and void.

    3. The plaintiffs paid a court-fee of Rs. 18/12/- on relief No. 1 and Rs. 50/- on relief No. 2.

    4. The defendants took the plea that the court-fee paid was insufficient as the plaintiffs had claimed a relief for a declaration with a consequential relief and the court-fee was payable under Sec. 7(iv)(a) of the Court-fees Act.

    5. The learned Civil Judge upheld the plea of the defendants and held that the court-fee was payable on a sum of Rs. 12,000/-, the value of the property Bazam Gandhi Hall.

    6. The contention of the appellants is that relief No. 1 is for a declaration and relief No. 2 for injunction is an independent and substantive relief and is not a consequential relief, and therefore the court-fee paid is sufficient.

    7. The relevant provisions are contained in Sec. 7(iv)(a) of the Court-fees Act which runs as follows :

    "In suits to obtain a declaratory decree or order where consequential relief other than relief specified in Sub-Sec. (IV-A) is prayed..... according to the amount at which, the relief sought is valued in the plaint or memorandum of appeal : Provided that in suits falling under cl. (a) where the relief sought is with reference to any immovable property, such amount shall be the value fit the consequential relief and if such relief is incapable of valuation then the value of the immovable property computed in accordance with Sub-Sec. (V), (VA) or (VB) of this section as the case may be ..."

    8. The question therefore is whether the relief for injunction as claimed by the plaintiffs is a consequential relief. The Court has to see what is the nature of the suit and of the reliefs claimed having regard to the provisions of Sec. 7 of the Court-fees Act. If a substantive relief is claimed, though clothed in the garb of a declaratory decree with a consequential relief, the Court is entitled to see what is the real nature of the relief, and if satisfied that it is not a mere consequential relief but a substantive relief it can demand the proper court-fee on that relief irrespective of the arbitrary valuation put by the plaintiff in the plaint on the ostensible consequential relief.

    The maintainability or otherwise of a suit for a bare declaration is not conclusive of the nature of the suit for the purposes of court-fees. If the suit as framed is not maintainable under the law, the proper course is to dismiss the suit and not to treat it as something different from what it really is. It was held in Kalu Ram v. Babu Lal, AIR 1932 All 485 (FB) that the expression "consequential relief" in Sec. 7(iv)(c) means some relief which would flow directly from the declaration given; the valuation of which is not specifically provided for anywhere in the Act and cannot be claimed independently of the declaration as a substantive relief.

    9. Analysing the above definition the following elements are essential to constitute a consequential relief :

    (1) The relief must flow directly from the Declaration given.

    (2) The valuation of the relief must not be capable of being definitely ascertained.

    (3) The relief must not be specifically provided for anywhere in the Act.

    (4) The relief must be one which cannot be claimed independently of the declaration as a substantive relief.

    10. Almost a similar question arose in Madan Mohan v. Tejram George Coronation Hindu School Association, AIR 1949 All 207. The reliefs claimed in that suit were :

    (a) It be declared that the plaintiff is in fact; the President of Tej Ram George Coronation Hindu School, and is entitled to function as such.

    (b) It be declared that the resolutions stated 12-4-45, 2-5-45, 8-6-45, 10-6-45 and 1-7-45 and all the proceedings carried out by the Defendants are void and ultra vires.

    (c) Defendants be restrained from altering or adding to the name of the institution.

    (d) Defendant 2, be restrained from functioning as the President.

    (e) Defendants be restrained from interfering in plaintiffs functioning as the President.

    11. Relying upon the Full Bench decision in Kalu Rams case (AIR 1932 All 485) it was held that a consequential relief means a relief which necessarily flows from the principal relief sought. It is a relief which in the circumstances of the case cannot be allowed if the principal relief is refused. The court-fee was held to be payable on the aggregate value of the five reliefs claimed in the plaint.

    12. In Sri Krishna Chandrajl v. Shyam Behari Lal, (S) AIR 1955 All 177 the learned Judges, while following the Full Bench decision, referred to above elucidated the fourth ingredient as a relief that is not capable of being claimed in the absence of a claim for declaration as a substantive relief, that is to say, no suit for that relief can lie unless the suit also contemplates a declaratory relief. It was further remarked that it is only in such suits that it can be said that the relief sought is so linked with the declaratory relief that it should he considered a relief consequential to the declaratory relief.

    The question again arose in Vibhuti Narain Singh v. Municipal Board, Allahabad, AIR 1958 All 41 and it was held that where a declaration is sought for the existence of a right and a permanent injunction is sought restraining some once from interfering with the exercise of that right, the permanent injunction would clearly be a relief consequential to the declaration and the court-fee would be paid under Sec. 7(iv)(a) of the Court-fees Act.

    13. The principle deducible from the above decisions is that a relief flowing necessarily from a relief for declaration and not capable of being claimed independently of it is a consequential relief within the meaning of Sec. 7(iv)(c) of the Court-fees Act. The two reliefs must be asked for as one joint and indivisible relief, so that is the court in the exercise of its discretion refuses to pass a declaratory decree the claim for further relief also will fall with it.

    14. Applying the above principle to the instant case it is clear that the relief for injunction is incidental to the principal relief for declaration and cannot be granted independently of it In other words, the relief for injunction cannot be granted if the claim for the declaratory relief fails. The learned Civil Judge has therefore rightly held that the suit is for a consequential relief and Sec. 7(iv)(a) of the Court-fees Act is applicable.

    15. In the view of the learned Civil Judge the court-fee is payable on the value of the building known as Bazam Gandhi Hall. Its value has been held to be Rs. 12,000/-. It is urged on behalf of the appellants that the claim is for the exorcise of the rights as members of the Mandli with respect to the Bazam Gandhi Hall and therefore the court-fee is not payable on the value of that building. The contention is not without force. The Proviso in Sec. 7(iv)(a) is applicable only when the relief sought is with reference to any property. This reference to property must be direct and express. It was held in Madan Mohans case, AIR 1949 All 207 that if the relief sought in the suit indirectly affects certain immovable property that would be no ground for applying the said Proviso.

    16. The court-fee is therefore payable not on the value of the building but on the amount at which the two reliefs have been valued in the plaint, which is Rs. 5,200.

    17. The appeal is partly allowed and it is held that court-fee is payable on Rs. 5,200. The learned Civil Judge shall realise the court-fee accordingly. In the circumstances of the case make no order as to costs.

    Appeal partly allowed.

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