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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

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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.               931

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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)               932               (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

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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  933 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