Bombay Municipal Corporation Vs.
Dhondu Narayan Chowdhary  INSC 24 (8 February 1965)
08/02/1965 HIDAYATULLAH, M.
GAJENDRAGADKAR, P.B. (CJ) SHAH, J.C.
CITATION: 1965 AIR 1486 1965 SCR (2) 929
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.
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 Commissioner 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
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.
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 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 in as 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 (1) Any of the powers, duties or
functions conferred or imposed upon or vested in the Commissioner by any of the
sections, subsections 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.
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
(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 conditions
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 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
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.