Nirmal Kumar JaIn and ors. Vs. Municipal Corporation of Delhi and anr. - Court Judgment

Excerpt:
delhi municipal corporation act - sections 3(2), 54, 197, 198, 200 and 202--allucidating section 200 of the act, it is laid down that the immovable property belonging to the corporation can be sold by the commissioner with the sanction of the standing committee or the corporation--this power can not be usurped by the corporation itself or the standing committee itself. - - 320/ c&c dated 20.3.68 and recommended by the standing committee vide its resolution no. 1772/ c&c dated 1.12.69 and recommended by the standing committee vide its resolution no. according to the legal adviser two main difficulties in implementing the 'resolution were that under section 200(d) of the act the consideration for immovable property was not to be less than the value at which the immovable property could be sold in normal and fair competition, and secondly, municipal quarters in some of the colonies like azadpur, dhaka and nimri had been built after taking loan from the central government/delhi administration and as per the terms of the loan the said quarters were to remain as municipal property and were not to be sold to. resolved further that with a view to overcome the legal impediments in the way of the implementation of the resolution it be urged upon the government of india to suitably amend the provisions of section 200 of the delhi municipal corporation act and also revise the terms and conditions of the loan advanced to the corporation for the construction of municipal quarters in colonies such as azadpur, dhaka, nimri etc. 6077/c&c dated 14.12.78 and recommended by the standing committee vide its resolution no. 556/c&c dated 5.2.1980 resolved that it be recommended to the corporation that municipal quarters in nimri municipal colony be sold to allotted-employees at the market price. 556/c&c dated 5.2. 1980 and recommended by the standing committee vide its resolution no. 33/l&e/5818/c&c dated 1-11-1988, it be recommended to the corporation that the earlier decision taken vide corporation resolution nos. for a clear understanding of the provisions of section 200, it will be helpful to analyze sections 197 and 198 of the act as well. here it will be pertinent to note that sub-section (f) of section 200 clearly provides that the provisions of section 200 arc to apply to every disposal of the property belonging to the corporation. but, just as in mandya's case, the government bad no right to command the council to part with possession of the site. (19) strong reliance was placed by the learned counsel for the petitioners on the decision of a single bench of this court in the case of kalyan samiti nimri colony (regd. 203 of 1972 decided by charanjit talwar, 3. on 12th december, 1984. the petition had been filed by employees of the corporation who had been allotted flats in the nimri colony which flats bad been constructed by the corporation. the said terms, and clause 8 in particular, clearly contemplated the local body, namely, the corporation, selling the houses outright 'to the low paid staff. 937 of 1979 was restricted only to nimri municipal colony, but the quarters in the said colony were sold to non-municipal employees and as the same had been constructed under the low income group housing scheme, they were directed to be sale to the employees 'of the corporation as well at the market value of 1974. thereforee, the case of nimri colony is distinct and separate from the case of other colonies including the present one. it was, possibly, not urged on behalf of the corporation that to the sale of the quarters in nimri the provisions of section 200(b) or (c) were attracted presumably because the said quarters bad been constructed out of the funds received from delhi admn. the petitioner in that case sought a writ of mandamus for directing the corporation to give effect to its resolution dated 28th november, 1983 whereby the scale of post of the assistant chief accountant had been revised with effect from 1st january, 1973. this scale of pay was sought to be revised as ihe corporation bad adopted the recommendations of the third pay commission, it appeals that there was some difference of opinion between the corporation and the commissioner and the said resolution was not given effect to. firstly the said observations are clearly obiter in naturel. furthermore, the court was not concerned with the powers of the commissioner under section 200(b) and (c). it is true that where power has been given to the corporation to take decision like fixing salaries etc. bhalotra's case are, thereforee, clearly distinguishable and the aforesaid observations of the court have no application to the present case. with regard to the disposal of the property, the act places two checks and they arc, firstly, the decision to sell must have the concurrence of the commissioner and the corporation and, secondly, the sale should be at a value determined according to section 200(d). professor wade in his administrative law, fifth edition, has commented on the tendency of statutory authorities, like the corporations, to distribute funds in a way which may contrary to the interest of the rate payers. the carp orators are, in a sense, trustees of the municipal fund and property and they have to act in the best interest of the corporation, and no one else. the best illustration of abuse of power seems to me the sale of staff quarters. the commissioner is a municipal authority, like other authorities constituted under section 44 of the act, and he is under an obligation to perform his functions and discharge his duties in the manner stipulated by the act, as a chief executive, he would ordinarily be required to comply with the valid and legal decision of the corporation, but where the commissioner is required to apply his own mind and take a decision, he would be failing in his duty, if he merely carries out the dictates of the corporation without applying his own mind. for this reason as well.b.n. kirpal, j.(1) the petitioners are seeking a writ of mandamus to be issued to the respondent corporation directing it to transfer to the petitioners the ownership of the residential flats which are occupated by them. (2) the facts of the case are in a very narrow compass. the petitioners were the employees of the respondent corporation. the corporation had, out of its own funds, constructed staff quarters at mandelian road, bhamashah market, kamla nagar, delhi. these quarters (which have also been called flats) were allotted to the various petitioners, from time to time, during the course of their employment with the respondent. on such allotment being made the petitioners became liable to pay to the respondent license fee. the respondents had also constructed other staff quarters at different localities in delhi. one such place where quarters were constructed was nimri. (3) the contention of the petitioners is that the corporation had passed various resolutions whereby it had been resolved that the ownership of the flats, which had been allotted to. the petitioners and the other employees of the corporation, should be transferred to them. in view of the fact that the transfer has not yet taken place it is submitted that this court should direct the respondents to give effect to their resolutions. (4) in order to appreciate the various contentions raised in this case, it is, firstly, necessary to refer to the various relevant resolutions passed by the corporation and its standing committee, from time to time, with regard to residential flats constructed by them. 1st resolution the corporation had acquired various pieces of land and (7.5.1968) had formulated a scheme known as 'northern .city extension scheme i' for residential purposes, with provision also for a shopping area. after development some plots were sold to private individuals in the year 1937 and in subsequent years but some plots were reserved for various municipal purposes. on a plot of land measuring 2750 sq. yards on mandelian road a three storey building was constructed by the corporation. the ground floor consisted of 30 shops while 22 residential flats were constructed on the first and the second floors of the said building. the ground floor consisted of 30 shops while 22 residential flats were constructed on the first and the second floors of the said building. the corporation proposed to dispose of the shops and flats by public auction and this led to the passing of the first resolution on 7.5.1968 which was in the following terms : 'resolution no. 143 resolved that as proposed by the commissioner in his letter no. 320/ c&c; dated 20.3.68 and recommended by the standing committee vide its resolution no. 900 dated 5.4.68, disposal of shops and flats by auction of 3storeyed building at mandelian road, kamla nagar be approved.' 2nd resolution auction was held pursuant to the aforesaid resoution. (27.7.1970) while all the shops were disposed of, the offers received in respect of the residential flats were below the reserved prices. it was then proposed that the flats be allotted to the officers of the corporation on the basis of their salaries so that the corporation may be .in a position to get a reasonable return from investment as the officers would be liable to pay rent fixed in accordance with the provisions of p. r.45-a. this led to the passing of the second resolution, which was in the following terms : 'resolution no. 433 resolved that as proposed by the commissioner in his letter no. 1772/ c&c; dated 1.12.69 and recommended by the standing committee vide its resolution no. 323 dated 14.5.70 allotment of flats to the officers in three storeyed building at mandelian road on the terms and conditions specified in his letter referred to above be approved. resolved further that the cost of flats to be allotted to the officers be borne from the revenue of the 'general account' and transferred to the 'remunerative project account.' 3rd resolution the corporation held a special meeting on 4th december, (4.12.1970) 1970 and on that day passed resolution no. 868, the relevant portion of which was in the following terms: 'this special meeting of the municipal corporation of delhi resolves that the municipal quarters allotted to the 'municipal employees at nimri, azadpur, 'dhaka, kamla nagar, bungalow road, minto road, mandelian road, kashmiri gate, mori gate, bhargava lane, civil lines etc. be sold to the allottees on 'no profit no loss basis' and the allottees be charged at 15% of the assessed cost of the premises in the first instance and the balance in easy installments spread over a period of ted years, this facility be given only to those municipal employees, who do not own any housing within their own name or in the name of any member of their family.' 4th resolution it appears that the legal adviser considered the (25.4.1972) '' aforesaid resolution no. 868 regarding transfer of flats to the municipal employees. according to the legal adviser two main difficulties in implementing the 'resolution were that under section 200(d) of the act the consideration for immovable property was not to be less than the value at which the immovable property could be sold in normal and fair competition, and secondly, municipal quarters in some of the colonies like azadpur, dhaka and nimri had been built after taking loan from the central government/delhi administration and as per the terms of the loan the said quarters were to remain as municipal property and were not to be sold to. its employees. the case was then once again placed before the corporation which, vide its resolution no. 13 dated 25th april, 1972 reiterated its earlier decision by passing the following resolution: 'resolved that the corporation reiterates its previous decision regarding transfer of ownership rights of staff quarters as contained in its resolution no. 868 dated 4-1-1970.' 5th resolution not only did the legal adviser give his opinion that the (31-7-1973) aforesaid decision of the corporation was contrary to the provisions of section 200(d) of the act but the lt. governor of delhi also, in exercise of his powers conferred by section 487 of the act, issued a show cause notice to the corporation as to why a direction should not issue for making the arrangement for the proper performance to the duties required of the corporation under clause (d) of section 200 of the said act, before implementation of the said resolution. the matter was also re-examined by the legal adviser who again reiterated his earlier opinion. the corporation, however, chose to reiterate its earlier decision and passed the following resolution no 437 dated 31st july, 1973 : 'resolved that the decision taken by the corporation vide its resolution no. 868 dated 4.12.70 regarding transfer of ownership rights of staff quarters to their allottees on 'no profit no loss' basis be reiterated. resolved further that with a view to overcome the legal impediments in the way of the implementation of the resolution it be urged upon the government of india to suitably amend the provisions of section 200 of the delhi municipal corporation act and also revise the terms and conditions of the loan advanced to the corporation for the construction of municipal quarters in colonies such as azadpur, dhaka, nimri etc. so as to empower the corporation to transfer the municipal quarters to their allottees on no profit no loss basis and also to sell plots of land on 'profit no loss' basis to such of the desirous municipal employees who do not own in delhi any property or portion thereof in his own name or in the name of any of his dependents.' 6th resolution it seems that the advice given to the corporation was (9.2.1979) that as it was only an agency for the construction of the tenements at nimri colony, thereforee, the provisions of section 200(d) of the act were not attracted. this opinion was presumably given because the funds for the construction of tenements at nimri colony were given on loan by the central government/delhi administration. on 9th february, 1979 resolution no. 937 was passed by the corporation to the following effect ; 'resolved that having considered the position explained by the commissioner in his letter no. 6077/c&c; dated 14.12.78 and recommended by the standing committee vide its resolution no. 844 dated 18.1.79 unauthorised occupants of the municipal quarters in nimri municipal colony be offered these quarters on hire purchase basis at the market value existing in 1974 plus interest up to date @ 11% per annum and that the offer be made open only to those who pay the first installment within a period of 4 months from the date of offer' 7th resolution with a view to effect transfer of quarters at nimri (12.4.1979) colony, the standing committee pissed the following resolution no. '1421 on 12th april, 1979 : 'resolved that the resolution regarding transfer of tenements constructed under low income housing scheme at nimri colony to the allottees moved shri ishar das khanna and seconded by shri babu ram gupta be referred to the commissioner for report within one month.' 8th resolution in pursuance of the aforesaid resolution of the standing (28.2.1980) committee, the commissioner sent a letter dated 5th february, 1980 giving all the details of the various resolutions which had been passed. the commissioner observed that the decision to sell quarters to its employees on 'no profit no loss' basis was not valid. it was also stated that 'at present, the corporation is not in a position to transfer the ownership of 324 quarters to its employees on hire purchase basis due to the reasons that the corpora' ions already short of municipal accommodation and as against a loan of rs. 461 lacs received from govt. of india under the l.i.g. scheme, the corporation has already invested rs. 85,13,818. secondly, the ownership rights vest with the m.c.d. and section 200(d) of the d.m.c. act, does not allow transfer of quarters except at a market rate in a fair competition.' the aforesaid letter of the commissioner was considered and on 28th february, 1980 resolution no. 1156 was passed by the standing committee, which was as follows : ''having considered the report contained in commissioner's letter no. 556/c&c; dated 5.2.1980 resolved that it be recommended to the corporation that municipal quarters in nimri municipal colony be sold to allotted-employees at the market price.' 9th resolution thereafter the corporation passed resolution no. 1205 (10.3.1980) on 10th march, 1980, which was in the following terms : 'resolved that having considered the report contained in commissioner's letter no. 556/c&c; dated 5.2. 1980 and recommended by the standing committee vide its resolution no. 1156 dated 28-2-1980 municipal quarters in nimri municipal colony be sold to allottee employees at the market price.' 10th resolution in 1980 the delhi municipal corporation was superseded. (23-7-1980) thereafter it was the commissioner who discharged the functions of the corporation and he took a decision no. 235 dated 23rd july, 1980, in exercise of his powers under section 490(2)(b) of the d.m.c. act and this decision was as follows : 'in view of the position explained in commissioner's letter no. 2513/ c&c; dated 6.6.1980 corporation's resolution no. 1205 dated 10.3.80 regarding transfer of tenements constructed under low income housing scheme at nimri colony to the allottee is rescinded.' 11th resolution after the elections to the delhi' municipal corporation (15-2-1984) were held, the standing committee passed a resolution no. 872 on 23rd december, 1983 recommending to the corporation that the municipal quarters.at nimri colony be sold to the present allotters/unauthorized occupants on the market value of 1974. thereupon the corporation passed the following resolution no. 924 dated 15th february, 1984 : 'resolved that having considered the position brought out by the commissioner in his welter no. f.33/l&e;/7702/c&c; dated 17-11-1983 and the recommendation made by the standing committee vide its resolution no. 872 dated 23-12-1983, the municipal quarters at nimri colony be sold to the present allottees/ authorised occupants of these quarters on the market value of 1974 which has already been calculated in the case of eleven quarters of nimri colony sold to unauthorised occupants and on the same terms and conditions as contained in corporation's resolution no. 937 dated 9.2.1979.' 12th resolution the next resolution to which reference need be made is (21.12.1988) no. 1515 passed by the standing committee on 21-12-88. this was preceded by commissioner's letter dated 1st november, 1988, in which it was pointed out that the delhi high court had in its order dated 12.12.84 issued directions to act upon the resolution dated 15-2-84 in respect of nimri colony. it was also noted that the legal advisor had given his opinion to the effect that the corporation itself can also rescind its earlier resolutions of 1970 and 1972. the commissioner, thereforee, desired that the matter be placed before the corporation to rescind the aforesaid two resolutions nos. 868 dated 4-12-70 and 13 dated 25th december, 1972. the standing committee, however, passed resolution no. 1515 dated 21-12-88, which was to the following effect : 'resolved that having considered the position brought out by the commissioner in his letter no. f.33/l&e;/5818/c&c; dated 1-11-1988, it be recommended to the corporation that the earlier decision taken vide corporation resolution nos. 868,13 and 437 dated 4-12-1970, 25-12-1972 and 12-5-1973 respectively, be reiterated.' in an affidavit dated 23rd february, 1989 filed in this court by one of the petitioners, it has been slated that the said resolution no. 1515 of the standing committee has been approved by the municipal corporation of delhi in its meeting held on 20th february, 1989. (5) the main contention on behalf of the petitioners is that the power exists, exclusively, with the municipal corporation to dispose of any building and, further, any resolution which is passed by the corporation is binding on the commissioner. it was contended that it was the duty of the commissioner to give effect to any resolution passed by the corporation and if the commissioner does not discharge this function, a writ of mandamus can issue directing him to do so. (6) the respondents, on the other band, contend that the commissioner is the persons designate and, under the provisions of section 200(d) of the act, his consent to the sale of the property is necessary. if the commissioner does not agree for the sale of a property, the same cannot be sold. it is further urged that the commissioner, in this regard, is not bound to give effect to a resolution which is passed by the corporation. it is also submitted that in the present case the resolutions which were passed by the corporation were beyond the scope of the act and were ultra vires. the commissioner was, thereforee, justified in not giving effect to the said resolutions. lastly, it was contended, on behalf of the respondents, that a writ of mandamus can issue only for enforcing a legal duty and that no such writ can be issued directing the respondents to enter into a contract for the sale of property. (7) in order to deal with the rival contentions, it is necessary to refer to the relevant provisions of the act. (8) the corporation is established under section 3 of the act and sub-section (2), on which reliance is placed, reads as follows : '3(2)the corporation shall be a body corporate with the name aforesaid having perpetual succession and a common seal with power, subject to the provisions of this act, to acquire, hold and dispose of property and may by the said name sue and be sued.' according to section 41, the municipal government of delhi vests in the corporation but this is subject to the provisions of the act, rules, regulations and bye-laws made under the act. section 54 provides for the appointment of the commissioner. the said section reads as follows : '54,(1) the central government shall, by notification in the official gazette, appoint a suitable person as the commissioner of the corporation. (2) the commissioner so appointed shall hold office for a term of five years in the first instance : provided.that his appointment may be renewed from time to time for a term not exceeding one year at a time : provided further that where the commissioner holds a lien on any service under the government, the central government may at any time after reasonable notice to the corporation replace the his services at the disposal of that government. (3) the central government-(a) shall remove the commissioner from office if at a special meeting of the corporation called for the purpose a resolution for such removal has been passed by a majority of not less than three-fifths of the total number of members; (b) may remove the commissioner from office at any time if it appears to that government that he is incapable of performing the duties of his office or has been guilty of neglect or misconduct in the discharge of such duties which renders his removal expedient. (4) the commissioner shall not under take any work unconnected with his office without the sanction of the central government and of the corporation. the functions of the commissioner are specified under section 59 of the act which, inter alia, provides for the commissioner having the entire executive power for the purpose of carrying out the provisions of the act to vest in the commissioner. he also has to exercise all the powers to perform all the duties which are specifically conferred or imposed on him by the act or by any other law for the time being in force. the provisions regarding property and contracts are contained in chapter x of the act. sections 197, 198, 200 and 202 are as follows: '197. the corporation shall, for the purpose of this act, have power to acquire and hold movable and immovable property, or any interest therein. 198.whenever the corporation decided to acquire any immovable property for the purpose of this act, the commissioner shall acquire such property on behalf of the corporation by agreement on such terms and at such price as may be approved by the standing committee. 200.with respect to the disposal of property belonging to the corporation, the following provisions shall have effect, namely :- '(a)the commissioner may, in his discretion, dispose of, by sale or otherwise, any movable property belonging to the corporation not exceeding in value in each instance one thousand rupees, or such higher amount as the corporation may prescribe, or ler out or hire any movable property or grant a lease of any immovable property belonging to the corporation, including any right of gathering and taking fruits and the like, for a period not exceeding one year at a time ; (b)the commissioner may, with the sanction of the standing committee,- (i)dispose of, by sale or otherwise, any movable property belonging to the corporation the value of which does not exceed five thousand rupees ; (ii)grant a lease (other than a lease in perpetuity) of any immovable property belonging to the corporation ; or (iii)sell or grant a lease in perpetuity of any improvable property belonging to the corporation the value of which does not exceed fifty thousand rupees or the annual rent of which does not exceed three thousand rupees ; (c)in cases not covered by clause (a) or clause (b), the commissioner may, with the sanction of the corporation, lease, sell, let out on hire or otherwise transfer any property, movable or immovable belonging to the corporation ; (d)the consideration for which any immovable property may be old, leased or otherwise transferred shall not be less than the value at which such immovable property could be sold, leased or otherwise transferred in normal and fair competition ; (e)the sanction of the standing committee or of the corporation under the aforesaid clauses may be given either generally for any class of cases of specially for any particular case ; (f)subject to any conditions of limitations that may be specified in any other provisions of this act, the forgoing provisions of this section shall apply to every disposal of property belonging to the corporation made under, of for any purpose of, this act ; (g)every case of disposal of property under clause (a) and clause (b) shall be reported by the commissioner without delay to the stand ing committee and the corporation respectively. 202.with respect to the making of contracts, the following provisions shall have effect namely : (a)every such contract shall be made on behalf of the corporation by the commissioner; (b)no such contract, for any purpose which in accordance with any provision of this act the commissioner may not carry out without the approval or sanction of the corporation or some other municipal authority shall be made by him until and unless such approval or sanction has been duly obtained ; (c)no contract (other than a contract for the acquisition of immovable properly) which will involve an expenditure exceeding ten thousand rupees or such higher amount as the corporation may fix shall be made by the commissioner unless the some is previously approved by the standing committee. (d)every contract (other than a contract for the acquisition of immovable property) made by the commissioner involving an expenditure exceeding two thousand rupees but not exceeding ten thousand rupees or such higher amount as may be fixed under clause (c) shall be reported by him within one month after the some has been made to the standing committee ; (e)no contract for the acquisition of immovable property shall be valid-(i) unless the contract has been approved by the standing committee, where the price stipulated to be paid for such property exceeds five thousand rupees but does not exceed fifteen thousand rupees ; or (ii) unless the contract has been approved by the corporation, where the price stipulated to be paid for such property exceeds fifteen thousand rupees.' (9) it was submitted by shri kaul that under section 3(2) it is the corporation which can acquire, bold and dispose of property. section 200, it was submitted, has to be read with section 3(2). it was contended that as it is the corporation which is empowered to dispose of property, thereforee, the corporation can pass a resolution directing any property to be disposed of. such a resolution can be passed under section 200(c) and the decision of the corporation has to be complied with. (10) it is true that section 3(2) provides for the corporation to hold and dispose of property. the said sub-section, however, specifies that the power to hold and dispose of property is subject to the provisions of the act. thereforee, even though the power to dispose of may exit with the corporation but the manner in which this power can be exercised is contained in section 200 of the act. (11) as already noted, chapter x contains the provision with regard lo property and contracts. for a clear understanding of the provisions of section 200, it will be helpful to analyze sections 197 and 198 of the act as well. (12) section 197 reiterates that the corporation shall have the power to acquire and hold movable and immovable property. section 198 enables the corporation to decide to acquire any immovable property and on such decision being taken, the commissioner is bound to acquire the property at such price as may be approved by the standing committee. what is important to note is that the power to decide whether to acquire immovable property or not vests only with the corporation and no one else. the use of the word 'shall' in section 198 shows that once such a decision has been taken, the commissioner is bound to acquire the property at the price which may be approved by the standing committee. section 200(b)(i) provides for the circumstances in which the commissioner may. with the sanction of the standing committee, dispose of or grant on lease property value of which is specified therein. where the value of the property is in excess of rupees fifty thousand, the same can be disposed of by the commissioner only with the sanction of the corporation, what is important to note here is that the immovable property belonging to the corporation can be disposed of only by the commissioner, either with the sanction of the standing committee or of the corporation. (13) whereas with regard to acquisition of immovable property decision in respect thereof can be taken by the corporation alone, under section 198 of the ad, immovable property can only. be disposed of with the concurrence of two entities, one of which must he the commissioner. while the assent of the commissioner is not necessary for exercise of power under section 198 of the act, section 200, on the other hand, does not contemplate immovable property being sold without the concurrence or agreement of the commissioner. in fact the use of the words in section 200(c) that 'the commissioner may, with the sanction of the corporation, lease, sell......' give the indication that the initiative or the proposal for the sale of the property should ordinarily arise from the commissioner. even if this be not so, section 200(c) makes it quite clear that sale of immovable property ' cannot take place without the concurrence of the commissioner of the corporation (14) the legislature, in its wisdom, perhaps thought that there should be a greater safeguard provided in the act with regard to holding or selling of the property belonging to the corporation, it is, perhaps, for this reason that power to sell the immovable property was not given exclusively either to the corporation or to the standing committee or to the commissioner. furthermore, section 200 docs not contemplate a joint decision to sell the immovable property being taken by the corporation and the standing , committee. the commissioner, in regard to the sale of immovable property, cannot be by-passed. immovable property can be sold only by the commissioner either with the consent of the standing committee or, under section 200(c), with the consent of the corporation. (15) it was submitted by shri kaul that the commissioner being an officer of the corporation is bound to comply with the resolutions passed by the corporation. on a plain reading of section 200 it is clear that the said provision contemplates application of mind and the taking of a conscious decision by the commissioner. whereas section 198 postulates a decision to acquire being binding on the commissioner, the language of section 200 ' is not analogous. section 200 does not contemplate a proposal for the sale of immovable property emanating from the corporation and, in any case, it does not enable the corporation to take a unilateral decision to sell the property. the corporation cannot dispose of any immovable property without the consent or concurrence of the commissioner. here it will be pertinent to note that sub-section (f) of section 200 clearly provides that the provisions of section 200 arc to apply to every disposal of the property belonging to the corporation. thereforee, the provisions of section 3(2) of the act are subject to the provisions of section 200. thereforee, the property of the corporation can be disposed of only by complying with the provisions of section 200. (16) the commissioner is one of the municipal authorities. section 44 recuperates 6 municipal authorities and the commissioner is one of them. the other municipal authorities being the standing committee, the delhi electric supply committee, the delhi water supply and sewage disposal committee, the general manager (electricity) and the general manager (transport). of these functionaries it is only the commissioner who is selected and appointed by the central government. his appointment is for a term of 5 years, in the first instance, and he can be removed from office only by the central govt. though the commissioner is to be paid out of the municipal funds but his salary and allowances are fixed by the central govt. the functions of the commissioner are provided by section 59 and the said section does not provide for the commissioner carrying out or giving effect to every resolution passed by the corporation. section 59 enjoins upon the commissioner to exercise all powers and to perform all duties imposed upon him by the act. the corporation act does not contain any provision which makes it incumbent upon the commissioner to carry out all the dictates of the corporation. (17) at this stage, it will be appropriate to refer to a decision of the karnataka high court reported as city municipal council, mandya v. state. of mysore and others, 1975 municipalities and corporation cases 491. in that case respondent no. 3, therein, transferred some land to the city municipal council, mandya for no consideration. it was, however, agreed that the council should grant a building site in favor of the said respondent no 3. a site was so granted and he was put in possession thereof pursuant to a resolution passed on 9-2-1966. the said respondent no. 3 asked for more land in the year 1970. the council acceded to this request but required the deputy commissioner to obtain previous approval of the government as contemplated by section 72(2) of the karnataka municipalities act, 1964 the council, however, had second thoughts in respect of the grant of the site but, in the mean time, approval of the government for the grant af the said site was received. after the receipt of the approval the council did not pass any resolution granting the said site to respondent no. 3. a petition was filed under articles 226 and 227 of the constitution challenging the no grant of the site by the council. the court referred to the provisions of section 72 of the said act, relevant portion of which reads as under : '72.competency of municipal council to lease, sell and contract (1) subject to the conditions and restrictions contained in sub-sections (2) to (9), and such other restrictions and conditions us the . govt. may be general or special orders specify, every municipal council shall be competent to lease, sell or otherwise transfer any moveable or immoveable property which belongs to, or for the purpose of this act, has been acquired by it, and so far as is not inconsistent with the provisions and purposes of this act, to enter into and perform all such contracts as it may consider necessary or expedient in order to carry into effect the said provisions and purposes. (2)no free grant of immovable property whatever may be its value, no giant for an upset price and no lease for a term exceeding five years, and no sale or other transfer of immoveable property exceeding two thousand rupees in value, shall be valid unless the previous sanction of the government is obtained.' it was contended by the council, before the karnataka high court, that it was not bound to carry out the directions of the government to give the said site to respondent no. 3. one of the contentions which had been raised was that the decisions of the government was binding on the council. accepting the contention of the council, the high court held that section 72 contemplated prior permission of the government to the grant of the site. the resolution of the council passed in 1970 could only have been regarded as a proposal to the grant and that proposal could not confer any enforceable right on respondent no. 3. this was because section 72 contemplated approval of the government being received prior to the council deciding to sell or dispose of any property. referring to the jurisdiction of the government, it was observed by the high court as follows : 'it must be stated that the government are not the competent authority to grant or dispose of the municipal sites. they could grant only prior approval for the grant or otherwise to dispose of the municipal properly. mere sanction of the government does not confer any right on respondent 3 unless it is followed by an appropriate resolution granting the sites. even after the prior approval of the government, it may be open to the council to grant or not to grant the sites to respondent 3. in fact, in the instant case, the council met on 4-10-1971 and passed are solution expressing their unwillingness to grant the sites to respondent 3 and accordingly the council made a request to the government to cancel their sanction in these circumstances, the government cannot command the council to hand over possession of the sites to respondent 3 on whom there was no right conferred by the resolution of the council dt. 3-10-1970.'(18) whereas in the municipal council, mandya's case the approval had to be obtained from the government by the council in order to dispose of the property, in the present case the approval has to be received by the commissioner from the corporation. but, just as in mandya's case, the government bad no right to command the council to part with possession of the site. similarly in the present case, the corporation has no right to direct the commissioner to sell the property. following the aforesaid decision of the karnataka high court, thereforee, i am firmly of the opinion that the corporation could not direct the commissioner to sell the flats to the petitioners and, secondly, the resolutions of the corporation did not give any right to the petitioners for the transfer of the flats, just as the decision of the state government did not give any right to respondent no. 3 in city council. mandya's case (supra) to the transfer of the site to the said persons. (19) strong reliance was placed by the learned counsel for the petitioners on the decision of a single bench of this court in the case of kalyan samiti nimri colony (regd.) and others v. municipal corporation of delhi etc.. civil writ petition no. 203 of 1972 decided by charanjit talwar, 3. on 12th december, 1984. the petition had been filed by employees of the corporation who had been allotted flats in the nimri colony which flats bad been constructed by the corporation. that corporation had passed the aforesaid resolution no. 868 dated 4th december, 1970 for the sale of flats to municipal employees at nimri, azadpur, malka ganj etc. on 'no profit no loss' basis. subsequently, resolution was passed being no. 934 dated 15th february, 1984 to the effect that these flats be sold to the employees at the market value which existed in the year 1974, the said resolutions were not given effect to and the writ petition was filed. by the aforesaid judgment direction was issued to the effect that the resolution dated 10th february, 1984 be acted upon without delay. one important difference, which is most material, between the present case and that of nimri is that the flats at nimri were constructed by the corporation after taking loan from delhi administration under the scheme known as 'low income housing scheme'. clause 8 of the said scheme postulated that the loan which was granted to the state government could be dispersed to local bodies for housing low paid staff. it was also provided therein that local bodies were free to sell those houses outright or on hire-purchase basis to their low paid staff. it was pursuant thereto that delhi administration sanctioned a loan of rupees 7 lacs on the condition that 25% of the quarters will be allotted to the employees of the corporation and the remaining 75% will be sold or let out on 'no profit no loss' basis. the 25% quarters which were to be allotted. to the employees were subsequently, with the concurrence of the lt. governor, delhi, increased to 50%. 50% of the quarters were sold under the scheme on 'no profit no loss' basis. though objection was taken to the effect that sale to the employees would be in contravention of section 200(d) of the act but the court observed that the resolution to sell the quarters on the market value as in 1975 complied with the provisions of section 200(d). in any case, the said quarters having been constructed not from the funds of the municipality, the provisions of section 200(d) strictly did not apply. the disposal of those quarters at nimri was really governed by the terms of the loan which had been granted by the delhi administration for construction of the quarters. the said terms, and clause 8 in particular, clearly contemplated the local body, namely, the corporation, selling the houses outright 'to the low paid staff. even in the resolution no. 1421 passed by the standing committee on 12th april, 1979 reference was made to these tenements having been constructed under the low income group housing scheme resolution no. 937 of 9th february. 1979 referred only to the municipal quarters in nimri municipal colony being sold at the market value existing in 1974. though in the resolutions passed prior to 1979 reference was made to the municipal quarters constructed in colonies as azadpur, dhaka. nimri etc., the resolution no. 937 of 1979 was restricted only to nimri municipal colony, but the quarters in the said colony were sold to non-municipal employees and as the same had been constructed under the low income group housing scheme, they were directed to be sale to the employees 'of the corporation as well at the market value of 1974. thereforee, the case of nimri colony is distinct and separate from the case of other colonies including the present one. (20) it will be seen that in kalyan samiti's case the court proceeded on the assumption that the corporation had the power to pass the resolution regarding transfer of the quarters and that the said resolution had to be complied with. no contention was raised in that case regarding non-concurrence of the commissioner to the sale of the quarters. it was, possibly, not urged on behalf of the corporation that to the sale of the quarters in nimri the provisions of section 200(b) or (c) were attracted presumably because the said quarters bad been constructed out of the funds received from delhi admn. under the low income group housing scheme and, thereforee, the quarters so constructed were possibly not regarded as being the property of the corporation. be that as it may, it is clear that this court had no occasion, in nimri colony's case, to consider the full scope and effect of the provisions of section 200(c) of the act. (21) reference was also made to the case of risan singh v. municipal corporation of delhi, c.w. no. 2315 of 1986 decided on 6th may. 1987 by a division bench of this court. the petitioner in that case sought a writ of mandamus for directing the corporation to give effect to its resolution dated 28th november, 1983 whereby the scale of post of the assistant chief accountant had been revised with effect from 1st january, 1973. this scale of pay was sought to be revised as ihe corporation bad adopted the recommendations of the third pay commission, it appeals that there was some difference of opinion between the corporation and the commissioner and the said resolution was not given effect to. this court, however, issued the writ and directed that effect should be given to the said resolution. the said decision is of no help to the petitioners because in deciding risal singh's case this court referred to the provisions of sections 78 and 98 of the corporation act and observed that it was the corporation which was the authority competent to revise the pay scales. in view of the fact that it was only the corporation which was the competent authority to decide about the salaries which were to be paid to its employees, by virtue of the powers conferred on it by section 98 of the act, the division bench rightly came to the conclusion that a resolution passed by it revising the scale of pay had to be given effect to whereas in risal singh's case the corporation was the sole authority to take a decision with regard to the revision of pay scale, by virtue of the powers conferred on it by section 9s. in the present case the sole authority to sell the property of the corporation does not vest in the corporation. the authority to sell the property of the corporation is with she commissioner, either with the consent of the standing committee, under section 200(b) or of the corporation, under section 200(c). (22) reliance was also placed on the observations of a single bench of this court in the case of 0 p. bhalotra and others v. municipal corporation of delhi and others, c.w. no. 2274 of 1981 decided on 24th september, 1987. the complaint in that writ petition was to the disregard of the resolution of the corporation dated 27th may, 1970 which pertained to the eligibility of employees to sit for the audit examination, it had been contended that regulations which had been framed as contained in the notification dated 9th september, 1975 were illegal as being contrary to the resolution of 27th may, 1970. it is, while considering the validity of this argument, that the court dealt with the scheme of the act and observed that section 54 of the act indicated that the commissioner was to be treated as an officer of the corporation who was subordinate to the corporation and the decisions of the corporation would be binding on the commissioner. it was also observed that section 59 of the act vests executive powers in the commissioner and the resolutions of the corporation had to be implemented by the commissioner who could not over-rule the resolutions or act contrary to the said resolutions. it appears to me that the aforesaid observations are of no help to the learned counsel for the petitioners. firstly the said observations are clearly obiter in naturel. the question as to what were the powers of the commissioner did not arise for consideration in that case. the court was concerned with the validity of regulations which had been framed which regulations had been framed contrary to are solution of the corporation. furthermore, the court was not concerned with the powers of the commissioner under section 200(b) and (c). it is true that where power has been given to the corporation to take decision like fixing salaries etc., then in such a case any decision taken by the corporation has to be implemented by the corporation itself including the commissioner. the provisions of section 200, however, do not contemplate a unilateral decision being taken by the corporation to sell the immovable property. the commissioner has to consider and decide whether to sell immovable property of the corporation and it is only if he and either the standing committee or the corporation, as the case may be, agree that immovable property of the corporation can be sold that the property can be disposed of. the facts and circumstances of o.p. bhalotra's case are, thereforee, clearly distinguishable and the aforesaid observations of the court have no application to the present case. (23) a decision which is more opposite is that of the state of punjab and another v. hari kishan sharma : [1966]2scr982 . the supreme court was dealing with a case where an application had been filed before the sub divisional officer for the grant of license under section 5(1) and (2) of the punjab cinemas (regulation) act. the said act provided that the district magistrate shall be the licensing authority. the proviso to section 4 authorised the government to constitute another authority as the licensing authority. it is in pursuance of a notification so issued that the sub divisional officer was notified as being the licensing authority. the license which was applied for by the applicant therein was not granted because of a direction which had been issued to the licensing authority by the state government, the question which arose was whether the state of punjab had any authority or jurisdiction to reject the application for the grant of a license. the high court held that the state of punjab had no jurisdiction to deal with the matter. in the appeal which was filed it was sought to be contended that sub-section (2) of section 5 of the said act provided that 'subject to the foregoing provisions of this section and to the control of the government, the licensing authority may grant licenses under this act to such persons as it thinks fit, on such terms and conditions as it may determine', and this provision conferred wide powers on the state of punjab to issue directions with regard to the grant of licenses. this contention was repelled by the supreme court in the following words : 'it is true that s. 5(2) provides that the licensing authority may grant licenses subject to the provisions of s. 5(1) and subject to the control of the government, and it may be conceded that the control of the government subject to which the licensing authority has to function while the exercising its power under section 5(l) and (2), is very wide ; but however wide this control may be, it cannot justify appellant no. i to completely oust the licensing authority and itself usurp his functions. the legislature contemplates a licensing authority as distinct from the government. it no doubt recognises that the licensing authority has to act under the control of the government ; but it is the licensing authority which has to act and not the government itself. the results of the instructions issued by appellant no. 1 is to change the statutory provision of section 5(2) and obliterate the licensing authority from the statute-book altogether. that, in our opinion, is not justified by the provision as to the control of government prescribed by section 5(2).'(24) the supreme court came to the conclusion that the government could not assume to itself the powers of the licensing authority which had been specifically provided for by section 5(1) and (2) of the said act. applying the analogy of the aforesaid decision to the present case it is clear that the corporation cannot assume full powers of disposal of the immovable property belonging to the corporation. section 200 makes it quite clear that the power of selling immovable property is to be exercised by the commissioner within the sanction of the standing committee or the corporation, as the case may be. this power of the commissioner cannot be usurped either by the standing committee or by the corporation itself. in other words, the sanctioning authority, namely, the standing committee or the corporation cannot also exercise the powers of the commissioner and decide, on its own, to sell immovable property. immovable property belonging to the corporation can be sold only by the commissioner with the sanction of the standing committee or the corporation, and the said property cannot be sold by the corporation without the commissioner agreeing to such a sale. in the present case the commissioner has at no time given his assent to the sale of the quarters in question, in fact, the commissioner has been opposing the said sale and has brought to the notice of the corporation that the proposed sale is contrary to the provisions of section 200(d) of the act and is also not in the interest of the corporation. the corporation requires the quarters for accommodating its employees, who are serving in the corporation for the time being, and if the quarters are sold, the corporation would not be able to allot any accommodation to its existing employees. this is a relevant circumstance which was taken into consideration by the commissioner in deciding as to whether the corporation should or should not sell its immovable property. (25) it has been contended by shri v.p. singh that the resolution of the corporation for selling the quarters to the petitioners was ultra virus its powers. the submission is that according to section 200(d) immovable property may be sold at a value which is not less at which it can be sold in normal and fair competition. the resolution whereby the property is sought to be transferred, as in the present case, at a price which was arrived at or determined on no profit no less basis more than a decade ago cannot be regarded as a. fair market value and, thereforee, selling the quarters at that prices is not permissible. shri kaul, on the other hand. has contended that whether the resolution which is passed by the corporation was reasonable or not should not be gone into by this court the learned counsel submitted that the mind of the corporation should not be substituted by the mind of the court. relying upon the case of chief constable of the north wales police v. evans (1982) 1 w.l.r. 1155, and other english decisions laying down the same ratio, it was submitted that in the absence of the decision of the corporation being termed as perverse or arbitrary or absurd, this court should not lightly interfere with the resolution which has been passed seeking to transfer the quarters to the petitioners. (26) in my opinion, the test of reasonableness or unreasonableness is not applicable to the present case. what has to be seen is whether the resolution which has been passed by the corporation is in conformity with the provisions of the statute or not. the corporation gets jurisdiction or authority to sell immovable property only if the price at which it is sold is not less than the one which is arrived at in normal and fair competition. in other words. section 200(d) contemplates immovable property being sold only at market price which price is to be determined in normal and fair competition. (27) the corporation is an elected body and the corporation have a limited terms the legislature has thought it fit not to confer on the corporation unguided or unbridled powers with regard to sale of immovable property. there may be various compulsions or exigencies, political or otherwise, which may persuade the corporators to dispose of municipal property at a concessional rate. the delhi municipal corporation act enjoins on the corporation not to dispose of municipal property without getting adequate consideration in respect thereto. with regard to the disposal of the property, the act places two checks and they arc, firstly, the decision to sell must have the concurrence of the commissioner and the corporation and, secondly, the sale should be at a value determined according to section 200(d). professor wade in his administrative law, fifth edition, has commented on the tendency of statutory authorities, like the corporations, to distribute funds in a way which may contrary to the interest of the rate payers. under the heading 'misplaced philanthropy' it has been stated as follows: 'statutory authorities have sometimes made use of their wide general powers in order to confer social or economic benefits on particular sections of the community. in several such cases they have gone beyond the true limits of their powers. the policy of the courts is in general hostile to the use of public funds, such as rates, for new social experiments. local authorities are subject to a fiduciary duty to use their revenues with due restraint.it has also been observed by prof. wade at page 379 that 'the generosity of local authorities, in particular, is restrained by the doctrine that they owe a fiduciary duty to their ratepayers analogous to that of trustees. this means that, in deciding upon their expenditure, they must hold a balance fairly between the recipients of the benefit and the ratepayers who have to bear the cost.' the aforesaid observations are equally applicable in the case of the corporation. the corporators are obliged to deal with municipal funds and property in accordance with the provisions of the municipal act. the property, whether moveable or immovable, cannot be disposed of by the corporation with a view to favor any one if disposal of such property is not contemplated by the provisions of the act and is not in the interest of the corporation. merely because the petitioners are employees of the corporation is not an adequate reason for selling the quarters to them at less than market price. if such a power is conceded to the corporation, it would follow that, in law, the corporation can sell municipal property at less than market value to other persons to whom favor is sought to be shown. the carp orators are, in a sense, trustees of the municipal fund and property and they have to act in the best interest of the corporation, and no one else. (28) it may here be noted that the corporation itself had resolved vide resolution no. 437 dated 31st july, 1973 that the government of india should be urged to amend the provisions of section 200 so that quarters could be sold at less than market price and on no profit no loss basil. the passing of this resolution shows that the corporation was conscious of the restriction which the said section 200 had placed on its powers to sell the property and the fact that the government of india have not, till date, amended the provisions of section 200 shows that it regards the retention of such a provision as a necessary safeguard against excessive philanthropy. the learned counsel for the respondent is, thereforee, right in contending that the resolution which was passed by the corporation seeking to transfer the quarters to the petitioners on no profit no loss basis was contrary to the mandatory provisions of section 200(d) and, thereforee, the commissioner was justified in not assenting to the transfer of the said quarters. (29) it will also be useful to refer to a full bench decision of this court in the case of satish chandra khandelwal v. union of india and others 1982 m.c.c. 254. in that case the corporation was superseded, vide an order dated 11th april, 1980, passed by the central government. writ petition was filed challenging the supersession. the supersession was preceded by a notice to . show cause which had been issued. the said notice enumerated various defaults of the corporation, and also set out instances of abuse of powers by it. one of the instances of abuse of powers, which was enumerated, was as follows : 'the corporation passed a resolution to sell the staff quarters in nimri colony to the occupants/allotters ignoring the fact that the quarters were meant to serve as an amenity to serving staff,' dealing with the question whether the instances enumerated in the show cause notice amounted to an abuse of power or not, this court observed as follows: 'the best illustration of abuse of power seems to me the sale of staff quarters. the corporation sold quarters in nimri colony to the occupants ignoring the fact that the quarters were meant to serve as an amenity to the staff. section 43(n) says that one of the discretionary functions of the corporation is to provide 'dwelling houses for municipal officers and other municipal employees.' it. will be an unauthorised use of its power to transfer the quarters to the occupants, even though it be as market rate. ' the full bench also dwelt on the position of the commissioner in that case it observed as under:- '83.but it is unjust to blame the commissioner for the defaults of the corporation or its incompetency or abuse of power. the office of the commissioner is an important part of the machinery of the local government. he may be said to stand between the corporation and the central government. he is there to assist by his advice and action in the conduct of public affairs in the corporation, and if there is a disposition on the part of the corporation to ride roughshod over be opinion, the question must at once arise whether the deliberative wing of the corporation is not solely to be blamed for the consequence. if the commissioner is not answerable to the corporation he is answerable to no one. the act harmonises the two principles of municipal home rule with central control. the municipal government of delhi vests in the corporation composed of councillors and alderman (see section 3). it does not vest in the commissioner. the commissioner is the chief executive. he owes dual responsibility to the government and the elected representatives. placed between universal suffrage and the central power, he is between anvil and the hammer. this has been said of the french prefect. it is true of the municipal commissioner of delhi.'(30) the aforesaid observations would tend to show that the commissioner is not merely an employee of the corporation, who is obliged to implement all the resolutions which are passed by the corporation. the commissioner is a municipal authority, like other authorities constituted under section 44 of the act, and he is under an obligation to perform his functions and discharge his duties in the manner stipulated by the act, as a chief executive, he would ordinarily be required to comply with the valid and legal decision of the corporation, but where the commissioner is required to apply his own mind and take a decision, he would be failing in his duty, if he merely carries out the dictates of the corporation without applying his own mind. at the risk of repetition, it may be stated that section 200 of the act casts a duty on the commissioner to agree to sale of immovable property with the sanction of the standing committee or the corporation, and the commissioner would be failing in his duty if he allowed immovable property of the corporation to be sold without his concurrence. (31) it was next contended by the counsel for the petitioners that principles of promissory estoppel are applicable to the present case. the submission was that by passing the aforesaid resolutions, the petitioners were promised, by the corporation, that the quarters would be transferred to them and, thereforee, the respondents cannot resile from this promise which has been held out for all these years. in my opinion, there is no merit in this contention. firstly, my attention has not been drawn to any letter written by the corporation to any of the petitioners informing them that the allotment of the quarter was being made to them on the basis that the same would be transferred to them. merely because the corporation had passed a resolution to the effect that the quarters should transferred to the allottees may have raised hopes in the hearts of the petitioners that. the transfer would be effected but the said resolution cannot be regarded as promise made by the corporation to the petitioners. as far as the petitioners were concerned. the quarters had been allotted to them in their capacities as employees and they must have been paying the license fee in respect thereof at the rates stipulated by the corporation. furthermore, there can be no estoppel against statute and the corporation cannot be compelled to carry ouc its representation or promise, if any. which may be contrary to law or outside is authority or power. reference in this regard may be made to the following observations of the supreme court in the case, of union of india and others v. godfrey philips india ltd. : [1986]158itr574(sc) :- '14.of course we must make it clear, and that it also laid down in motilal sugar mills case (air 1978 sc 621) (supra), that there can be go promissory estoppel against the legislature in the exercise of its legislative functions nor can the government or public authority be debarred by promissory estoppel from enforcing a statutory prohibition. it is equally true that promissory estoppel cannot be used to compel the government or a public authority to carry out a representation or promise which is contrary to law or which was outside the authority or power of the officer of the government or of the public authority to make. we may also point out that the doctrine of promissory estoppel being an equitable doctrine, it must yield when the equity so requires, if it can be shown by the government or public authority that having regard to the facts as they have transpired, it would be inequitable to hold the government or public authority to the promise or representation made by it, the court would not raise an equity in favor of the person to whom the promise or representation is made and enforce the promise or representation against the government or public authority. the doctrine of promissory estoppel would be displaced in such a case, because on the facts equity would not require that the government or public authority should be held bound by the promise or representation made by it. this aspect has been dealt with fully in motilal sugar mills case (supra) and we find ourselves wholly in that decision on this point.' .(32) it may also be noted that under section 200 of the act the authority, who is empowered to sell immovable property is the commissioner after having obtained sanction of the standing committee or the corporation. no representation for the sale of the property had, any time been made by the commissioner to any of the petitioners. in other words the alleged representation for sale of the immovable property to the petition was not made by the proper authority, namely, the commissioner the principles of promissory estoppel can, thereforee, not apply in the instant case. for this reason as well. (33) it was also submitted by shri v.p. singh while relying upon the case of shri krishan dasi v. municipal corporation of delhi-civil writ petition no. 266 of 1973, decided by this custom 26th august, 1974 that a writ of mandamus cannot issue to compel the commissioner to enter into a contract. it was contended that such a writ is issued only for enforcing a legal duty or a legal right. what the petitioners want, it was contended, was that a writ of mandamus should be issued to the respondents directing them to enter into a contract for sale of property. in my opinion, it is not necessary to decide this question in this petition because the petition is liable to be dismissed on other grounds, even though, there is lot of force in the aforesaid contention. (34) for the aforesaid reasons, the writ petition 'is dismissed, but there will be no order as to costs.