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John Servage Philip Vs. City of Nagpur Corporation Through Its Commissioner D.J. Madan, Nagpur and anr. - Court Judgment

LegalCrystal Citation
CourtMumbai High Court
Decided On
Case NumberSpecial Civil Appln. No. 110 of 1959
Reported inAIR1959Bom458; (1959)61BOMLR1299; ILR1959Bom1730
ActsC.P. and Berar Local Fund Audit Act, 1933 - Sections 8; Constitution of India - Article 226; City of Nagpur Corporation Act, 1950 - Sections 20A, 57, 57(1), 58, 58A and 84
AppellantJohn Servage Philip
RespondentCity of Nagpur Corporation Through Its Commissioner D.J. Madan, Nagpur and anr.
Appellant AdvocateS.G. Kukde, Adv.
Respondent AdvocateM.N. Phadke, ;V.M. Golwalkar, Advs. and ;N.L. Abhyankar, Special Government Pleader
city of nagpur corporation act (11 of 1950), sections 57, 58, 58-a, 84, 20a - c.p. and berar local fund audit act -- corporation passing resolution to send at its expense delegates at health conference in england -- whether resolution beyond powers of corporation and, therefore, ultra vires -- right of corporation to incur expenditure -- court's power to issue writ of mandamus or other appropriate writ or order.;the city of nagpur corporation passed a resolution at a meeting of the corporation accepting an invitation received from the secretary of the royal society for the promotion of health, london, requesting it to send delegates at the health conference of representatives of commonwealth countries to be held in england. in pursuance of an order of the government of india allotting.....mudholkar, j.1. the city of nagpur corporation passed a resolution at a meeting held on 18-3-1959, accepting an invitation received from the secretary of the royal society for the promotion of health, london, requesting it to send delegates at the health conference to be held at harrogate, yorkshire, from 27th april till 1-5-1959. the corporation decided to send the following four persons as delegates to that conference: (1) shri madan gopal agrawal, councillor, (2) shri o.v. deshmukh, councillor, (3) dr. d.w. durgakar, councillor, (4) shri d.j. madan, municipal commissioner. apparently the corporation was not quite sure whether it could send delegates to that conference at its expense. it therefore addressed a letter to the state government, requesting it to grant sanction for the.....

Mudholkar, J.

1. The City of Nagpur Corporation passed a resolution at a meeting held on 18-3-1959, accepting an invitation received from the Secretary of the Royal Society for the Promotion of Health, London, requesting it to send delegates at the Health Conference to be held at Harrogate, Yorkshire, from 27th April till 1-5-1959. The Corporation decided to send the following four persons as delegates to that Conference: (1) Shri Madan Gopal Agrawal, Councillor, (2) Shri O.V. Deshmukh, Councillor, (3) Dr. D.W. Durgakar, Councillor, (4) Shri D.J. Madan, Municipal Commissioner. Apparently the Corporation was not quite sure whether it could send delegates to that Conference at its expense. It therefore addressed a letter to the State Government, requesting it to grant sanction for the expenditure which will have to be incurred for sending the aforesaid delegates to the Conference. On 4-4-1959 the Government sent a reply to the Corporation in which, amongst other things, it was stated that there does not appear to be any provision in the Act or the rules under which the sanction of the Government was necessary and that it presumed that only a formal approval of the Government was sought for by the Corporation. The Government then stated that it had no objection to one delegate being sent to attend the Health Congress and that it approved of an expenditure of Rs. 4,000/- in respect of it from the Municipal fund. Thereafter the Corporation again moved the Government for reconsidering the matter and it would appear that eventually the Government agreed to the original proposal of the Corporation to send four delegates. Accordingly the Government recommended to the Government of India to release sufficient foreign exchange for meeting the expenses of the delegates out of India. The Government of India, however, sanctioned only 200 pounds and said that this was to enable the Corporation to send two delegates. Now, in the original resolution which was passed by the Corporation the names of the four delegates were set out in the order in which they were to go in case it was decided that all the delegates should not go. In pursuance of the order passed by the Government of India allotting foreign exchange for meeting the expenses out of India for two delegates, only the first two delegates viz. Shri Agrawal and Shri Deshmukh were to sent to the Congress.

2. The petitioner who claims to be a citizen of Nagpur, came to know of this on 19-4-1959 from newspaper reports and on the next day i.e. on the 20th he preferred an application to this Court under Article 226 of the Constitution for the issue of an appropriate writ, order, or direction, restraining the Corporation from carrying out the resolution of 18-3-1959. After the petition was admitted by us we issued a temporary injunction restraining the Corporation from giving effect to the resolution pending decision of the petition before us. We also directed that the petition shall be heard on the 22nd.

3. The Corporation has filed its return and has raised several contentions. We will only refer to those contentions which were pressed in the argument before us by Mr. M.N. Phadke who appears for the Corporation.

4. The first contention which Mr. Phadke raised was that the petition has been delayed, that money has actually been placed at the disposal of two delegates who are supposed to go, and probably the passages have also been booked, for the two delegates. We realize that there is not much time left for the delegates to leave. Mr. Phadke says that they would have to leave Bombay today by air to enable them to attend the Congress. Even so, we do not think that this is a case where the petitioner has been guilty of any laches or inaction. It is no doubt true that soon after the resolution in regard to this matter was passed by the Corporation, the news was flashed in the local newspapers, but it was also known that the Corporation had sought the sanction of the Government. It was also known to the people that foreign exchange was to be made available by the Reserve Bank and for the purpose the Government of India's orders were necessary. It seems that the petitioner did not expect that the proposed move of the Corporation would be accepted by the Government of Bombay or the Union Government. In these circumstances we do not think that the delay is inexcusable. We therefore overrule Mr. Phadke's first contention.

5. The Second contention of Mr. Phadke, which is also in the nature of a preliminary objection is that another remedy is open to the petitioner. That remedy is said to be to move the Government to take action against the members of the Corporation who voted for the resolution to refund the amount under the C.P. and Berar Local Fund Audit Act. Now under this Act the Examiner of Local Fund Accounts is empowered to report to the Commissioner that an expenditure has been wrongly incurred or a payment has been wrongly made. When such a report has been made the Commissioner has power to require those members of the Corporation or a local authority who voted for incurring such expenditure or making such payment to refund that amount to the Corporation or the local body. There does not appear to by any provision in the Act under which a citizen is entitled to move the Government. Under the Act the initiative can be taken only by the Examiner of Local Fund Accounts and no one else. In these circumstances it cannot be said that another remedy was open to the petitioner.

6. The arguments were closed yesterday, but today Mr. Phadke has made another point. It is this. The petitioner, according to him, is in fact seeking a writ of mandamus and since there has been no prior demand by the petitioner from the Corporation, it is not open to him to ask for the issue of such writ. Now, the requirement of a demand by a person who seeks the issue of a writ of mandamus is necessary where that person seeks to compel a public authority or a public body to perform its duties under the statue. In the instant case what the petitioner is seeking is not a demand for the performance of a duty but the issue of an appropriate writ, order or direction restraining a public body from doing an act which according to him, is in contravention of the statute which has brought it into existence. Therefore, strictly speaking, what the petitioner is seeking is not a writ of mandamus. Now, in Rashid Ahmed v. Municipal Board, Kairana, : [1950]1SCR566 a person was prohibited by an order of the Municipal Committee from carrying on a trade within the municipal limits. He made a petition to the Supreme Court under Article 32 of the Constitution for enforcing his fundamental right to carry on his business, which according to him was completely stopped by the municipal body. One of the contentions raised before the Supreme Court by the Advocate General of Uttar Pradesh was that the petitioner had an adequate remedy by way of appeal and that therefore the Supreme Court should not grant any writ in the nature of prohibition, mandamus or certiorari.

7. Dealing with the argument their Lordships observed:

'There can be no question that the existence of an adequate legal remedy is a thing to be taken into consideration in the matter of granting writs, but the powers given to this Court under Article 32 are much wider and are not confined to issuing prerogative writs only.'

Then their Lordships proceeded to observe:

'We are satisfied that in this case the petitioner's fundamental rights have been infringed and he is entitled to have his grievance redressed. The proper order in such circumstances would be to direct the respondent Board not to prohibit the petitioner from carrying on the trade of whole-sale dealer and commission agent of vegetables and fruits within the limits of the Municipal Board of Kairana, etc.'.

8. It would thus be clear that if the Court comes to the conclusion that the petitioner is entitled to have his grievance removed, then it has the power to issue an appropriate writ or order though it may not strictly be a writ of mandamus. Apart from that, we would like to point out that on the same day on which that petitioner presented the petition, another petitioner, Govind Mahadeo Khode, also presented a similar petition in which he asked for an identical relief. On 16-4-1959 this person served a notice on the Corporation calling upon it to cancel its previous resolution and to desist from sending the delegates named in the resolution of 18-3-1959 to attend the Harrogate Congress. This petition was not admitted by us for the simple reason that whatever the petitioner wanted to be enquired into there could be enquired into the present petition. Therefore, even if we uphold Mr. Phadke's contention, the most that can happen is that we would dismiss the petition but then we would be entitled to take into consideration the other petition and if we think that the contentions are right we can issue not only a writ of mandamus, if we can issue such a writ in that petition, but also any other writ, order or direction. For these reasons we over-rule Mr. Phadke's third preliminary objection.

9. Coming to the most important question which is involved in this petition, we would like to state that it is settled law that every municipal corporation is entitled to spend money only when the power to do so is expressly conferred upon it by the Act bringing the Corporation into existence or is necessarily implied from any power expressly granted by the Act or is essential to the object for which the Corporation is created. What we have therefore to see is whether the City of Nagpur Corporation Act confers a power upon the Corporation to expend money on an object such as the one which is involved in the resolution of 18-3-1959.

10. Chapter V of the City of Nagpur Corporation Act deals with 'powers, duties and functions of the Municipal Authorities'. These duties are divided into two categories, obligatory and discretionary. Section 57 sets out the obligatory duties, Section 58 sets out the discretionary duties. In addition to this classification, Section 58-A empowers the State Government to entrust either conditional or unconditional functions in relation to any matter specified in the Schedule or in relation to any other matter to which the executive authority of the State extends or in respect of the powers of the State Government or the Central Government. These are thus the only duties which the Act lays upon are thus the only duties which the Act lays upon the Corporation. Of course, as already stated, for the performance of these duties the Corporation the performance of these duties the Corporation will also be bound to perform certain duties which were essential to secure the performance of the duties expressly case upon it. The Corporation would likewise have the power to do all that is necessary to ensure the due performance of its duties. There is another principle which is also well settled and which must be borne in mind while dealing with the contentions raised before us. That principle is that there must be a substantial compliance with the Constitutional or statutory provision as to the right of the municipal corporation to incur expenditure. Such power is to be exercised by the authority named in the Act and by no one else. The third principle which is to be borne in mind is that the statutory provision prohibiting the incurring of expenditure out of the municipal fund without prior appropriation cannot be transgressed. Here we have got Section 84 of the Act which provides that no payment of any sum shall be made out of the municipal fund unless the expenditure of the same is covered by a current budget grant and a sufficient balance of such budget grant is still available. There is, no doubt, a proviso to this section which excepts certain expenditure from the prohibition enacted in the section. But then it has to be established that the expenditure falls within the exception.

11. It is not disputed that no duty is cast upon the Municipal Corporation either under Section 57 or under Section 58, or under Section 58-A, requiring it to send delegates to any conference. Mr. Phadke's contention, however, is that it is implicit in the powers of the Corporation to do all such things as are necessary for ensuring a satisfactory exercise of its duties under the Act and that sending delegates to conferences such as the one in question must be deemed to be in the exercise of that power. He says that the Corporators upon whom is laid the duty of providing various amenities to the people by making improvements of different kinds in the government of the city would require the necessary knowledge and information for securing this end. He says that the two corporators going as delegates will learn a good deal about various matters concerning public health and on their return they will enlighten the other corporators about the modern trends of thoughts and activities in the sphere of public health and would be able to suggest what improvements should be made and what new amenities should be supplied to the people of Nagpur. The Corporation will thus be in a much better position to judge as to what should be done in the city of Nagpur. We would, however, like to state that there must be some legitimate and reasonable connection between what is sought to be done and what is required or permitted by the statute to be done by the Corporation in order to justify the act.

12. Dealing with this aspect of the matter the law has been summarised thus in 64 Corpus Juris Secundum at Note 1835:

'There is no universal test for distinguishing between a purpose which is public or municipal and, therefore, a proper object of municipal expenditure and one which is private and, therefore, an improper object to which to devote public money. Each case must be decided in the light of the existing conditions, with respect to the objects sought to be accomplished, the degree and manner in which that object affects the public welfare, and the nature and character of the thing to be done.'

A question somewhat similar to the one which is before us has also been before the State Courts in the United States of America. That question was whether a municipality may lawfully provide for payment of expenditure of delegates attending conferences of municipal institutions. On this question there has been a divergence of judicial opinion in the courts of that Country. Some Courts have held that disbursement of money for such purpose is outside the powers of the corporation because the connection between that purpose and the duties case upon the corporation is too remote. On the other hand, it has been held by some other Courts that disbursement of money for such purpose is within the competence of the corporation. In one of these cases it has been held that the expenditure incurred reasonably by municipal authorities to learn the manner in which complex municipal problems concerning government and other capacities of the municipality are solved is for public purpose. Here the delegates are not going to attend a conference of other municipal authorities but to attend a public Health Congress of representatives of Commonwealth Countries. The invitation which has been extended to the Corporation says that this Congress is presided over by a certain Peer and that delegates representing all aspects of public health are expected to meet there to discuss subjects of common interest. It also states that next year (i.e. 1959) a Radiation section dealing with radiation levels and nuclear power stations will be included for the first time, thus providing for a platform for the discussion of a rapidly developing subject of particular public health importance. The invitation says that there will be a Health Exhibition associated with these functions which will enable the delegates to see at first hand the latest equipment and products of many leading manufacturers as well as displays by Government Departments and trade and research organisations.

13. It will thus be seen from this invitation that the subject which will be dealt with and discussed at the Congress are highly technical. It is questionable whether there is any ground at all for a Corporation situate in the heart of India to be concerned about radiation. Apart from that the invitation makes it clear that the subjects to be discussed there will be of 'public interest' to members of the medical profession, engineers, architects, health officers, public health nurses, etc. Therefore, it is clear that Local bodies in India can but play only an insignificant part at this function. The knowledge to be gained or information to be obtained at the Congress must be of a kind which is capable, or reasonably capable, of being useful to the local authority which sends its delegate. It cannot be said that there is any reasonable connection between the object which this Congress has in view and the duties which the Corporation has to perform in the city of Nagpur. No doubt, it appears from the invitation that delegates will be able to visit water supply undertakings, district heating schemes, sewage disposal works, housing schemes, homes for the aged, hospitals, health service centres, industrial rehabilitation units, etc. That however is only incidental to the main thing. Indeed, if it were to be granted that a corporation will be able to do its duties better by sending delegates all over the world to see how similar problems are tackled elsewhere, the cost of it would be disproportionate to the benefit that is expected to be derived from such a tour. We may also point out that even the capacity of the Corporation to make use of the knowledge gained by its delegates to the aforesaid conference is extremely limited, and therefore that knowledge is not reasonably likely to result in any benefit to the Corporation. In the light of these circumstances no other conclusion but one can be reached and that is that there is no reasonable connection or no legitimate connection between sending delegates to a conference of this kind and the discharge of the duties case upon the Corporation by the Act.

14. Mr. Phadke however contended that this really is a matter of opinion and that as regards what is reasonable or what is not reasonable the Court cannot substitute its own judgment for that of the corporation. For, certain duties are cast upon the Corporation by the Act, and it is for the Corporation to decide as to how to discharge their duties. It has been pointed out in Note 199 of 62, Corpus Juris Secundum that discretionary action on the part of a municipality is subject to judicial review where the action is manifestly arbitrary or the discretion is clearly abused whether such action is within or without the limits of its discretionary power. No doubt, as a general rule Courts may not inquire into the unreasonableness or reasonableness of a municipal act or ordinance but it is accepted as a general rule that reasonableness of municipal action is subject to review and inquiry by the Courts. In Note 204 of the aforesaid volume it has been pointed out that in passing on the reasonableness of municipal ordinance and regulations, the courts may consider the object to be accomplished, the means for its accomplishment and all the surrounding facts and circumstances. In determining the question the Courts are not bound by the form, but must look at the substance of things. Similarly, it has been pointed out in Note 205 that the Courts may review the acts of a municipality as to whether the act is within the power of the municipality and as to whether the power was legally exercised. The law is the same in England as would be apparent from the decisions in The Queen v. Liverpool Corporation and Town Council (1872) 41 LJ Q.B. 175, Att. Gen. v. Manchester Corporation (1906) 75 LJ Ch. 330 and Tynemouth v. Attorney General 1899 A.C. 293. In all these cases the Courts have reviewed the action of the corporation and held that the expenditure incurred or sought to be incurred by the Corporation has no reasonable connection with the duties case upon it by its charter or by the statute constituting it. Mr. Kukday who appears for the petitioner has brought to our notice an American case reported in James v. Seattle (1900) 79 Am. St. Rep 957 which is very similar to the present case. In that case it was held that the expenditure incurred by the members of the City Corporation and connected with the municipal matter was not necessary expenditure incurred in the performance of the official duties and the citizen is not liable therefore to such expenditure. It was contended before the Court that the subjects of water works, street lighting, terminal facilities and other municipal matters come within the control of the city Council and that members of the council are bound to use their best endeavours in behalf of the taxpayers, by giving them the best results in the most economical manner, and that it is the duty of councilmen to inform themselves concerning all matters which come before them, that they may act intelligently for the benefit of the city. Dealing with this argument the learned Judge observed:

'It is true the members of the city council owe the public duty to the city to exercise their best faculties in its interest. The compensation of a member for his official duties as councilman may be determined and fixed, and cannot be changed during his incumbency of office. If the members of the Council, upon their tour of inspection, were in the discharge of their official duties, the restriction upon additional compensation applies.

Judge Cooley in his work on Taxation, page 209, observes:

'In the construction of any grant of the power to tax made by the State to one of its municipalities, the rule, which is accepted by the authorities, is that it should be with strictness. The reasonable presumption is held to be that the State has granted in clear and unmistakable terms all it has intended to grant at all; and whatsoever authority the municipal officers assume to exercise they must be able to show the warrant for it in the words of the grant.' And we think the rule thus announced is the established one, and in consonance with all sound authority. The members of the city council are trustees. The body holds a trust for the inhabitants of the city. The terms of the trust are fixed by legislation, and no expenditure of money belonging to the city can be made without express authority, or implied authority by reason of a necessary granted power. Where this authority did not exist, the council is without power to authorise the payment of the claim against the city; and, upon sound principle, it cannot be conceded that the council had the power to authorize the payment of the claim of appellant.'

15. Prima facie therefore, where money is sought to be expended outside the Corporation limit, as is the case here, a very strong case must be made by Corporation to show that the incurring of this expenditure was essential to the due performance of its duties by the Corporation and that it was bound to result in benefit to the people living within the municipal limits of the Corporation.

16. These reasons therefore compel us to hold that the proposed expenditure is not in connection with the performance of any of the duties laid upon the Corporation. We are aware of the provisions of Section 58, Clause (a), which provides that the Corporation has a discretion to provide for any matter other than the matter specifically set out in the section which is likely to promote public health, safety and convenience of the public. But this provision also contemplates that there must be a reasonable and legitimate connection between what is sought to be done and the promotion of public health safety and convenience of the public. Taking part in deliberation of a conference of technical men and experts in a foreign country may perhaps enable those who attend to increase their knowledge of how the problems are tackled in different countries, which are far more advanced than India. But the gaining of this knowledge cannot be said to be reasonably capable of promoting public health, safety and convenience of the public in Nagpur. Numerous conferences are being held in this country and elsewhere where delegates meet, sit and discuss and disperse, but it is well known that usually nothing comes out of this. It would be far better to spend that money or even smaller amount on matters of which direct benefit can be received by the public than on sending delegates to attend conferences the benefit of which to the public is at best problematical. Of course, Mr. Phadke would say that this is again a matter of opinion. It seems to us, however that this is not a matter in which there could be more than one opinion. The connection as we have said already, must be direct, reasonable and legitimate, and not a probable and a possible one, between the object sought to be achieved and the thing in general.

17. We are also aware of the provisions of Clause (c) of Section 58 to which Mr. Phadke indirectly referred. Under that provision the Corporation has discretion to provide for further educational facilities other than the establishment and maintenance of private schools. He suggested that educating the corporators would fall within this category. In our opinion, that is not what the Legislature intended to provide for. We have to bear in mind that so far as maintenance of primary schools is concerned, that is an obligation cast upon the Corporation, by Clause (s) of Section 57(1) of the Act. Now, primary schools had to be established by the Corporation for the benefit of the people living within the limit of the Corporation. The Legislature thought that the Corporation would be able to discharge this duty within the limits of its financial capacity and therefore it has made the performance of this duty obligatory. But as regards the other educational objects it has left to the discretion of the Corporation to provide facilities or not. It would therefore be clear that the facilities contemplated by this clause were those intended for the people in general living within the limits of the Corporation. It was not the intention of the Legislature to give discretion to the Corporation to provide for special education facilities to its Councillors. If such a contention were to be accepted, then if any corporator wanted to join a college or school, the Corporation would be required to defray all the expenses. We cannot therefore interpret this clause as permitting expenditure by the Corporation over the education of its Councillors. We cannot therefore accept Mr. Phadke's explanation that the proposed expenditure would fall directly within this clause.

18. Then we have to see whether there is any provision in the budget regarding this matter. We will concede that the Corporation has had no notice of this ground which is a point which we ourselves raised at the outset. Mr. Phadke, however has been good enough to place before us the budget of the Corporation for the year 1959-60. We asked him to point out whether there has been any provision in the budget for the special expenditure of this kind. Mr. Phadke points out to item No. 53 which is described as ^^ ukxiwj egkuxj ikfydsP;k ekuuh; lnL;kukHkkk ** (allowance payable to the members of the City of Nagpur Corporation) and an amount of Rs. 34,770/- has been allotted to this item. Mr. Phadke says that since the budget was passed subsequent to the resolution of 18-3-1959, the amount of expenses of the delegation must be deemed to have been included in this item. On the other hand, Mr. Kukday said that this item relates to an entirely different matter. He referred to the provisions of Section 20A of the Act which provides that the Corporation may with the previous sanction of the State Government pay each councillor such honoraria, fees or other allowances as may be prescribed by the Corporation under that section. He asserts that the Corporation has made a byelaw under which each member of the corporation is entitled to get apart from the honoraria of Rs. 75/- an allowance of Rs. 10/- for every meeting of the Corporation which he attends. Mr. Phadke says that no such byelaw has been made. It may be that a byelaw is proposed to be made and therefore a provisional allotment for the expenditure has been made. However, we cannot say for certain, on the material before us, that this item relates to the payment of any allowances as suggested by Mr. Kukday. But, apart from that it is necessary for us to be satisfied about the allotment or appropriation of money towards such expenses by the Corporation. The expenditure involved in this case is of a special nature and the Corporation should have been able to show affirmatively that it has been sanctioned either under Section 84 by its inclusion in the budget or under the proviso (a) to Section 84 by the standing Committee. We asked Mr. Phadke whether there was any resolution of the Committee expressly sanctioning the expenditure, but he said that there is no such resolution. Mr. Kukday then pointed out that even the Corporation has not passed a formal resolution authorising the incurring of the expenditure involved in sending the delegates to the Congress. It will be necessary to set out the minutes of the meeting held on 18-3-1959 for the purpose of deciding this objection. The minutes are in Marathi and have been translated by both the petitioner and the Corporation. We would prefer to rely on the translation made by the Corporation. The Minutes as translated are as follows:

'The General Meeting consider a letter dated 10-11-58 No. M/21-C-I. of the Secretary of the Royal Society of the Health requesting the Nagpur Corporation to send delegates for the conference which is going to be held from 27-4-1959 to 1-5-1959 to Harrogate, Yorkshire.

Shri Mishra suggested the following names in Serial No.

1. Shri Madan Gopal Agarwal,

2. Shri D.V. Deshmukh

3. Shri D.W. Duragkar

4. Shri D.J. Madan.

Shri Rajaram Singh Bhonsle seconded the suggestion.

Shri Mishra then explained his suggestion : 'I suggested four names but if the Government sanction is necessary the names should be sent to the Government in S.No. in which I have suggested for the sanction of the Government. It the Government gives permission to one delegate then Serial No. 1 should be sent first and if the Government gives permission to two then first two should be sent. It three delegates be permitted to be sent then the first three and if all the four delegates be permitted to be sent then all the delegates be sent.'

... ... ... After the above discussion the Mayor put the suggestion of Shri Mishra to vote. The Mayor declared that the suggestion of Shri Mishra was passed by a majority of votes of 30 voting for and 12 against the suggestion.

In this manner the Corporation decided that according to the serial order, Sarvashri Madan Gopal Agarwal, D.V. Deshmukh, Mr. Durgakar and Shri D.J. Madan, I.A.S., Municipal Commissioner, be sent as delegates from the City of Nagpur Corporation. If the proposal requires Government sanction it be obtained early.

If the Government gives sanction to send four delegates then the four delegates be sent. If Government gives sanction to send delegates less than four then according to the serial order 1, 2, or three, in this order, the sending of the delegates and meeting their travel expenses and the payment of the necessary fees to the conference etc. was passed by a majority of votes.'

19. Now Mr. Kukday points out that the only resolution which was specifically put to vote was regarding the sending of four persons as delegates to the Congress and nothing etc. This was the resolution which was proposed by one Shri Mishra and seconded by one Shri Bhonsle and was passed by a majority of 30 voting for and 12 against. There is no reference in the aforesaid resolution to the expenditure of money. Mr. Kukday concedes that the minutes do show that the Corporation has sanctioned by majority the expenses of the delegates, but he says that no such resolution was moved by anyone seconded by anyone or put to vote. The minutes do not their face show that such a resolution was moved, at any rate, put to vote, but the minutes do show that a resolution of this kind was passed at the meeting. In our opinion, the object of the meeting was to sanction the expenditure for the delegation and we think that it can be said that the Corporation has sanctioned it. However, mere sanction of the expenditure by the Corporation is not enough. Either the amount proposed to be spent should be included in the budget or should be expressly sanctioned by the Standing Committee. If it is not included in the budget or if it is not expressly sanctioned by the standing committee, it will have to be said that the expenditure is unauthorized.

20. Mr. Kukday urged very vehemently that the Corporation has acted mala fide in passing the resolution and in particular in selecting the four delegates. In our opinion, the circumstances which have been established in this case do not warrant the inference that the action of the Corporation was mala fide. It is no doubt true that the delegates who have been selected have no special qualification, but it was within the competence of the Corporation to decide what persons should go. We therefore overrule the contention of Mr. Kukday as to the mala fide nature of the purpose.

21. No other contention now remains to be examined. Upon the view which we have taken, the resolution of the Corporation dated 18-3-1959 which permits the incurring of expenditure for sending delegates to the Congress is beyond the powers of the Corporation and is therefore ultra vires. We need not express any opinion in this case as to whether the Corporation was competent to pass a resolution at all selecting delegates for attending the congress at their own costs because no arguments were specifically advanced before us with regard to this point. We accordingly make the rule absolute in terms of the prayer in the petition. In the particular circumstances we think that costs of the petition should be borne as incurred.

22. Rule made absolute.

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