BOMBAY MUNICIPAL CORPORATION versus DHONDU NARAYAN CHOWDHARY

BOMBAY MUNICIPAL CORPORATION

DHONDUNARAYANCHOWDHARY February 8, 1965

[P. B. GAJENDRAGADKAR, C.J., M. llIDAYATULLAH, J. c. SHAH AND s. M. SIICRI, JJ .]

Bombay City Corporation A.ct, s. 6S-Commbsk>ner empowered to d•l•gat• hi.r judicial functions und<r Chapter YJ-A.-Pow•r1 delegated subject to Commi.rsionet's 'contror and 'subject to his rl!Vlston'-Dele-gation whether proper.

One tenant o! Chaw! belonging to the Municipal Corporation of Bombay died, and his widow on whom the tenancy devolved, took in boarder. Proceedings by the Corporation under Chapter VI-A of the Municipal Corporation Act for their ejectment were initiated by an otllcer to whom the commissioner had delegated his powers under s. 68 of the Act. After due enquiry the officer passed an order evicting C's widow and her boarder. In an al'peal filed under s. IOSF of the Act before the Bombay City Ci\il Court it was held that the delegation of the Commia-sioner's power was not proper inasmuch as the judicial functions of the Com-D missioner undet ss. 1 OSB to IOSE had been delegated to be exercised under the Commissioner's control and subject to his revision, and consequently the order of ejectment was without jurisdiction. The Corporation appeal-ed, by special leave, to the Supreme Court. No question as to the validity of the law was raised. It was only contended that judicial power was delegated with administrative control over the delegates decision.

HELD : (i) Section 68 was originally intended to cover very ~erent matters because Chapter VI-A could not then have been in contemplation. When Chapter VI-A was added and reference to ss. IOSB to IOSE was included in s. 68, the wording of that section became applicable to the powers exercisable under ss. I OSB to I OSE, even though that wordina. taken literally, is somewhat inapt to cover delegation of judicial power. [932 DJ

(ii) To the delegation of judicial power as such there can be no objection when the law either expressly or by necessary implica~on per-F mits it. In the present case the amendment of s. 68 by inclusion of the delegation of the function of the Commissioner under "'· I OSB to 1 OSB does indicate the intention that the judicial and quasi-judicial power1 contained in Chapter VI-A were expressly intended to be delegated. The words 11the Commissioner's control" and "subject to his revision" in s. 68, as well as in order of delegation, are really appropriate to dele-gation of administrative functions. They must be reasonably conatrued. In respect of judicial or quasi-judicial functions these words cannot bear the meaning which they bear in the delegation of administrative functions. When the Commissioner stated that his functions were delegated subject to his control and revision it did not mean that he reserved to himself the right to intervene to impose his own decision upon his delegate. Tht -control envisaged was not control over the decision as such but over the administrative aspects of cases and their disposal and the delegstion was valid. [932 F-933 BJ

The order of the Bombay City Civil Court could not therefore be sustained. CML APPELLATE JURISDICTION : Civil Appeal No. 865 of 1964.

Appeal by special leave from the judgment and order dated February 14, 1964 of the Bombay City Civil Court at Bombay in Appeal No. 86 of 1963.

M. C. Setalvad, J.B. Dadachanji, 0. C. Mathur and Ravinder Naraln, for the appellant.

B. K. Bhattacharjee and S. N. Mukherjee, for the respondent.

The Judgment of the Court was delivered by

Hidayatullah,_ J. In this appeal by special leave against the judgment and order of the Principal Judge, City Civil Court, Bombay dsited February 14, 1964, the only question is whether the delegation- by the Commissioner, Municipal Corporation of his functions under ss. I OSB to 1 OSE to certain officers of the Cor-poration was valid and proper. This question arises in the follow-ing circumstances :

One Govind Harl was monthly tenant of room No. 23 of chaw/ at Chandanwadi. After his death in 1961 the tenancy devolved on his widow Anusuyabai, who took in boarder. The chaw/ belong-ed to the Municipal Corporation and proceedings were taken to eject Anusuyabai and the boarder under Chapter VI-A of the Municipal Corporation Act. These proceedings were initiated by one of the officers to whom the powers of the Commissioner were delegated by him under s. 68 of the Act. After due enquirY the officer passed an order evicting these persons. An appeal was filed under s. 105F of the Act before the Bombay City Civil Court. In that appeal it was held that the delegation was not proper inas-much as the judicia!functions of the Commissioner under ss. 105B to 105E had been delegated to be exercised under the Commis-sioner's control and subject to his revision. The learned Judge pointed out that judicial or quasi-judicial power could not ordi-narily be delegated and, in any event, it could not be delegated so that the control over the decision was kept by the Commissioner. He, therefore, held that the officer who had passed the order was not properly invested with jurisdiction and the order was thus nullity.

The Bombay Municipal Corporation Act is an Act of 1888 and it has been amended frequently. Section 68 is one of the original sections and it provides as Jollows :

"68. Municipal officers may be ompowered to exer-cise certain of the powers, etc. of the Commissioner.

( 1 ) Any of the powers, duties or functions con-ferred or imposed upon or vested in the Commissioner by any of the sections, sub-sections or clauses mentioned in sub-section (2) may be exercised, performed or dis-charged, under the Commissioner's control and subject to his revision and to such conditions and limitations, if any, as he shall think fit to prescribe, by any municip11l officer whom the Commissioner generally or specially either by name or by virtue of office, empowers in writing in this behalf; and in each of the said sections, sub-sections and clauses the word "Commissioner" shall, to the exlent to which any municipal officer is so empowered, be deemed to include such officer.

( 2) The sections, sub-sections and clauses of this Act referred to in sub-section ( 1) are the following namely:-

reference to ss. 105B, 105C, 105D and 105E was inserted by the Maharashtra Act XIV of 1961. These sections are in Chap-F ter 6A which was also newly added by the same Act. It is not necessary to refer to these sections, except portion from s. 105B which brings into prominence the action taken by the Corporation against the respondents :

"105B. Power to evict person from corporation premises.

(1) Where the Commissioner is satisfied-

(a) that the person authorised to occupy any corporation premises has, whether before or after the commencement of the Bombay Municipal Corporation (Amendment) Act, 1960,-

(ii) sub-Jet, contrary to the terms or condi-tions of his occupation, the whole or any part of such premises; or

the Commissioner may notwithstanding any-thing contained in any Jaw for the time being in force, by notice . . . . order

that that person, as well as any other per-son who may be in occupation of the whole or any part of the premises, shall yacate them within one month of the date of the ser-vice of the notice."

It will be noticed that s. 68 was originally intended to cover very different matters because Chapter 6A could not have been in contemplation. When Chapter 6A was added and reference to ss. I 05B to I 05E was included in s. 68, the wording of that section became applicable to the powers exercisable under ss. I 05B to 105E, even though that wqrding, taken literally, is somewhat inapt to cover delegation of judicial power.

No question has been raised that any of the amendments is ultra vires so the words of s. 68 must be reasonably construed. It goes without saying that judicial power cannot ordinarily be dele-gated unless the law expressly or by clear implication permits it. In the present case the amendment of s. 68 by inclusion of dele-gation of the functions of the Commissioner under ss. 105B to 105E docs indicate the intention that the judicial or quasi-judicial powers contained in Chapter VIA were expressly intended to be delegated. To the delegation as such there can be no objection. What is objected to is the provision, both in the section as well as in the order of delegation, that the exercise of the function is to be under "the Commissioner's control" and "subject to his revi-sion". These words are really appropriate to delegation of administrative functions where the control may be deeper than ii:t judicial matters. In respect of judicial or quasi-judicial functions these words cannot of course bear the meaning which they bear in the delegation of administrative functions. When the Commission-er stated that his functions were delegated subject to his control and revision it did not mean that he reserved to himself the right to inter-vene to impose his own decision upon his delegate. What those words meant was that the Commissioner could control the exercise administratively as to the kinds of cases in which the delegate

MUNC. CORP. v. D. N. CHOWDHARY (Hidayatullah, J.)

could take action or the period or time during which the power might be exercised and so on and so forth. In other words, the administrative side of the delegate's duties were to be the subject of control and revision but not the essential power to decide whether to take action or not in particular case. This is also the intention of s. 68 as interpreted in the context of the several dele-B gated powers. This is apparent from the fact that the order of the delegate amounts to an order by the Commissioner and is appeal-able as such. If it were not so the appeal to the Bombay City Civil Court would be incompetent and the order could not be assailed. The order of the delegate was the order ot the Commissioner and the control envisaged both in s. 68 and the order of delegation was not control over the decision as such but over the administrative aspects of cases and their disposal. No allegation has been made that the Commissioner intervened in the decision of the case or improperly influenced it. In these circumstances the order impugned in the appeal cannot be sustained.

We allow the appeal and set aside the order of the Bombay City Civil Court and restore the order of the officer who exercised powers under s. 1 OSB of the Act, but make no order about costs.

Appeal allowed.