PETITIONER: BOMBAY MUNICIPAL CORPORATION Vs. RESPONDENT: DHONDU NARAYAN CHOWDHARY DATE OF JUDGMENT: 08/02/1965 BENCH: HIDAYATULLAH, M. BENCH: HIDAYATULLAH, M. GAJENDRAGADKAR, P.B. (CJ) SHAH, J.C. SIKRI, S.M. CITATION: 1965 AIR 1486 1965 SCR (2) 929 ACT: Bombay City Corporation Act, s. 68-Commissioner empowered to delegate his judicial functions under Chapter VI-A-Powers delegated subject to Commissioner's 'control' and subject to his revision'-Delegation whether proper. HEADNOTE: One C a tenant of a Chawl belonging to the Municipal Corporation of Bombay died, and his widow on whom the tenancy devolved, took in a boarder. Proceedings by the Corporation under Chapter VI-A of the Municipal Corporation Act for their ejectment were initiated by an officer 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 appeal filed under s. 105F of the Act before the Bombay City Civil Court it was held that the delegation of the Commissioner's power was not proper inasmuch as the judicial functions of the Com- missioner under ss. 105B to 105E 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 appealed, 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 different matters because Chapter VI-A could not then have been in contemplation. When Chapter VI-A was added and a reference to ss. 105B to 105E was included in s. 68, the wording of that section became applicable to the powers exercisable under ss. 105B to 105E, even though that wording, taken literally, is somewhat inapt to cover delegation of judicial power. [932 D] (ii) To the delegation of judicial power as such there can be no objection when the law either expressly or by necessary implication permits it. In the present case the amendment of s. 68 by inclusion of the delegation of the function of the Commissioner under ss. 105B to 105E does indicate the intention that the judicial and quasi-judicial powers contained in Chapter VI-A were expressly intended to be delegated. The words "the Commissioner's control" and "subject to his revision" in s. 68, as well as in order of delegation, are really appropriate to a delegation of administrative functions. They must be reasonably construed. 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. The control envisaged was not control over the decision as such but over the administrative aspects of cases and their disposal and the delegation was valid. [932 F-933 B] The order of the Bombay City Civil Court could not therefore be sustained. JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 865 of 1964.
930
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, O. C. Mathur and
Ravinder Narain, 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 dated February 14, 1964, the only question is whether
the delegation by the Commissioner, Municipal Corporation of
his functions under ss. 105B to 105E to certain officers of
the Corporation was valid and proper. This question arises
in the following circumstances :
One Govind Hari was a monthly tenant of room No. 23 of a
chawl at Chandanwadi. After his death in 1961 the tenancy
devolved on his widow Anusuyabai, who took in a boarder.
The chawl belonged 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 judicial functions of the Commissioner under ss.
105B to 105E had been delegated to be exercised under the
Commissioner’s control and subject to his revision. The
learned Judge pointed out that judicial or quasi-judicial
power could not ordinarily 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 a 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 follows :
“68. Municipal officers may be empowered to
exercise certain of the powers, etc. of the
Commissioner.
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(1) Any of the powers, duties or functions
conferred 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 discharged,
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 municipal 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 extent 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
Section 105B.
" 105C. " 105D. " 105E.
A reference to ss. 105B, 105C, 105D and 105E
was inserted by the Maharashtra Act XIV of
1961. These sections are in Chapter 6A which
was also newly added by the same Act. It is
not necessary to refer to these sections,
except a 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,
(i)
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(ii) sub-let, contrary to the terms or condi-
tions of his occupation, the whole or any part
of such premises; or
the Commissioner may notwithstanding anything
contained in any law for the time being in
force, by notice order that
person, as well as any other person who may be
in occupation of the whole or any part of the
premises, shall vacate them within one month
of the date of the service 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 a
reference to ss. 105B to 105E was included in s. 68, the
wording of that section became applicable to the powers
exercisable under ss. 105B to 105E, even though that
wording, 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 delegated unless the law expressly or
by clear implication permits it. In the present case the
amendment of s. 68 by inclusion of delegation of the
functions of the Commissioner under ss. 105B to 105E does
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 revision”. These words are
really appropriate to a delegation of administrative
functions where the control may be deeper than in 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 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. What those words meant was that
the Commissioner could control the exercise administratively
as to the kinds of cases in which the delegate
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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 a
particular case. This is also the intention of s. 68 as
interpreted in the context of the several delegated powers.
This is apparent from the fact that the order of the
delegate amounts to an order by the Commissioner and is
appealable 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 of 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. 105B of the Act, but make no order
about costs.
Appeal allowed.
934