Full Judgment Text
2008:BHC-AS:5780
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL REVISION APPLICATION NO. 244 OF 1999
(CONVERTED FROM CRIMINAL WRIT PETITION NO. 1491 OF 1999)
Vasant S. Naik )
rd
Flat No.11, 3 Floor, Shree Ramnath Co-operative )
Housing Society Ltd., Off. Sayani Road, )
Prabhadevi, Mumbai-400 025. ) .. Petitioner
Versus
1. Municipal Corporation of Greater Mumbai, )
G/South Ward, Mumbai-400 025. )
2. State of Maharashtra ) .. Respondents
Mr.B.G. Vaidya i/b Mr.P.N. Shastri for the petitioner.
Mrs. Aliya I. Pathan for the respondent no.1.
Mrs.M.M. Deshmukh, A.P.P. for respondent no.2.
CORAM: D.G. KARNIK, J.
DATE : 18/03/2008
ORAL JUDGMENT:
1. By this revision application, the petitioner challenges the judgment
th
and order dated 19 July 1999 passed by the Court of Sessions for Greater
::: Downloaded on - 01/04/2024 16:53:48 :::
2
Mumbai dismissing Criminal Appeal No.17 of 1999. That appeal was directed
st
against the judgment and order of the Metropolitan Magistrate, 41 Court,
th
Shindewadi, Dadar, Mumbai dated 12 March 1999 convicting the petitioner
accused of an offence punishable under section 381 read with section 471 of
the Mumbai Municipal Corporation Act, 1888 (hereinafter referred to as “the
MMC Act”).
2. The petitioner is an occupier of flats bearing nos.11 and 12 situate
rd
on the 3 floor of the building of Ramnath Co-operative Housing Society Ltd.,
D'Silvawadi, Prabhadevi, Mumbai. The flat below bearing no.9 situated on the
second floor of the building is in occupation of Mr.Pandit. It appears that there
was leakage of water from flat nos.11 and 12 causing dampness in the roof
and walls of flat no.9 below, in occupation of Mr.Pandit. As the applicant was
not taking remedial action for repairs despite repeated requests by Mr.Pandit,
he complained to the Ward Officer / Assistant Commissioner of Mumbai
Municipal Corporation. Thereupon, Mr.Pawar, Sub-Engineer inspected the
th
flat no.9 on 28 May 1997 and found substance in the allegation of leakage of
water from flat nos.11 and 12 into flat no.9. Accordingly, he submitted a
report to the Assistant Engineer Mr.P.K. Desarkar, who agreeing with the
rd
report issued a notice to the petitioner on 3 June 1997 under section 381 of
the MMC Act calling upon him to discontinue and abate the nuisance (of
leakage of water) by taking necessary measures of water proofing. On failure
of the petitioner to respond the MMC, through Mr.Uday Mande, Junior Legal
Assistant, launched a criminal prosecution of the petitioner for the alleged
::: Downloaded on - 01/04/2024 16:53:48 :::
3
offence punishable under section 381 read with 471 of the MMC Act.
3. The prosecution examined Mr.Pawar, Junior Engineer (PW1), to
prove the leakage and Mr.P.K. Desarkar, Assistant Engineer (PW2) to prove
the authorisation given to him by the Deputy Municipal Commissioner, Zone-
II, under section 68 of the MMC Act. The petitioner did not adduce any
evidence in defence. Considering the evidence on record, the Metropolitan
Magistrate convicted the petitioner of an offence punishable under section
381 read with 471 of the MMC Act and sentenced the petitioner to pay fine of
Rs.300/- and in default to undergo simple imprisonment for 7 days. Appeal
filed by the petitioner, being Criminal Appeal No.73/1999, was dismissed by
th
the learned Sessions Judge on 19 July 1999. Aggrieved petitioner is in
revision.
4. Apart from the challenge to the decision on merits, learned
counsel for the petitioner submitted that there was no proper authorisation in
favour of Mr.P.K. Desarkar and he was not authorised to issue the notice
under section 381 of the MMC Act. As issuance of a notice under section 381
is a sine qua non for the prosecution and as no valid notice was issued by the
Commissioner or a person duly authorised by him, the order of conviction was
erroneous.
5. Section 381 of the MMC Act provides that the Commissioner may,
by a notice in writing, to require the person by whose act, a nuisance arises,
::: Downloaded on - 01/04/2024 16:53:48 :::
4
exists or continues or likely to arise and the owner, lessee and occupier of the
land, building or premises on which the nuisance arises, exists or continues or
is likely to arise or anyone or more of such person, owner, lessee or occupier,
to remove, discontinue or abate the nuisance by taking such measures and by
executing such work in such manner and in such period of time as the
Commissioner shall prescribe in such notice. Section 471 of the MMC Act
provides that whoever contravenes any of the provisions of any of the
sections of the Act or fails to comply with any requisition lawfully made upon
him under any of the provisions of the Act, shall be punished for each offence
with fine which may extend to the amount mentioned in the Act.
6. In order to sustain the conviction for breach of section 471 of the
MMC Act, the prosecution is required to prove that a proper and valid notice
under section 381 of the MMC Act was served on the petitioner by the
Commissioner or by an officer duly authorised by him in accordance with
section 68 or any other provision of the MMC Act to issue the notice. It is only
then that the person can be in breach for non-compliance of the notice. The
question that arises for my consideration in this revision is: Whether the notice
rd
dated 3 June 1997 issued under the signature of Mr.P.K. Desarkar, Assistant
Engineer, G-South Ward was legal and valid notice – that is to say whether
Mr.Desarkar was authorised to issue the said notice?
7. Section 381 of the MMC Act authorises the Commissioner to
issue a notice requiring the person causing nuisance to abate it. Section 381
::: Downloaded on - 01/04/2024 16:53:48 :::
5
does not explicitly authorise an officer subordinate to the Commissioner to
issue the notice. Learned counsel for the MMC, however, submitted that
section 68 of the MMC Act authorises the Commissioner to delegate any of
his powers, duties and functions to any municipal officer by a general or
special order made from time to time. She submitted that the powers were
delegated to Mr.P.K. Desarkar by Deputy Municipal Commissioner, Zone-II by
th
an order dated 13 August 1996 (Exhibit P-11). She further submitted that by
reason of section 56(3) of the MMC Act, all acts and things performed and
done by a Deputy Municipal Commissioner during the tenure of his office are
deemed to have been performed by the Commissioner. Consequently,
delegation of powers to Mr.Desarkar by the Deputy Municipal Commissioner
must be deemed to be delegation made by the Commissioner himself and
therefore delegation was valid.
8. Section 68 of the MMC Act reads as follows:
“68. Delegation of powers of Municipal Authorities.- Any
of the powers, duties and functions conferred upon,
assigned to or vested in the Corporation the Mayor,
Commissioner or the General Manager, Brihan Mumbai
Electric Supply and Transport Undertaking, by or under
this Act, may be exercised, performed or discharged by
any municipal officer to whom such powers, duties and
functions are delegated by the concerned authority by
general or special order made, from time to time, in this
::: Downloaded on - 01/04/2024 16:53:48 :::
6
behalf.”
Undoubtedly, by section 68 of the MMC Act the Commissioner is empowered
to delegate any of his powers, duties and functions conferred upon, assigned
or vested in him to any municipal officer by a general or special order made
from time to time. Admittedly, the delegation of powers to Mr.Desarkar
(Exhibit P-11) is not made by the Commissioner. The same is made by the
Deputy Municipal Commissioner.
9. Learned counsel for the Municipal Corporation submitted that sub-
section (3) of section 56 of the MMC Act treats the Deputy Municipal
Commissioner to be the Commissioner for the purpose of all the acts and
things done by him under the MMC Act and, therefore, the delegation by the
Deputy Municipal Commissioner would be deemed to be delegation by the
Commissioner within the meaning of section 68 of the MMC Act. In order to
appreciate the contention of the learned counsel, it is necessary to refer to
section 56 of the MMC Act, which reads as follows:-
“56. Functions of Commissioner, the Director and a Deputy
Commissioner.- (1) The Commissioner, the Director or a
Deputy Commissioner or an additional Deputy
Commissioner so appointed shall be subordinate to the
Commissioner and, subject to his orders, shall exercise
such of the powers and perform such of the duties of the
::: Downloaded on - 01/04/2024 16:53:48 :::
7
Commissioner as the Commissioner shall from time to time
depute to him:
(2) Provided that -
(a) Deleted
(b) The Commissioner shall inform the corporation of
the powers and duties which he from time to time deputes
to the Director or a Deputy Commissioner.
(2A) Provided further that when an additional Deputy
Commissioner or more than one additional Deputy
Commissioner have been appointed, the Commissioner
shall prescribe the respective spheres of duties of each of
such additional Deputy Commissioners and in so doing
may allot to the Deputy Commissioner or the additional
Deputy Commissioner designated by him responsibility,
subject to the control of the Commissioner for the
municipal government of the suburbs in so far as such
responsibility is consistent with the powers and duties
deputed to him under sub-section (1).
(3) All acts and things performed and done by the
Director or a Deputy Commissioner and an additional
Deputy Commissioner during his tenure of the said office
and in virtue thereof, shall for all purposes be deemed to
have been performed and done by the Commissioner.
::: Downloaded on - 01/04/2024 16:53:48 :::
8
Sub-section (1) of section 56 provides that a Director (appointed under
section 54A) or a Deputy Commissioner or an Additional Deputy
Commissioner shall be subordinate to the Commissioner and subject to his
orders shall exercise such of the powers and perform such of the duties of the
Commissioner as the Commissioner shall from time to time depute to him.
Sub-section (2) provides that the Commissioner shall inform the corporation of
the powers and duties which he from time to time deputes to a Director or a
Deputy Commissioner. Sub-section 2A provides that when an additional
Deputy Commissioner or more than one additional Deputy Commissioner
have been appointed, the Commissioner shall prescribe the respective duties
of each of such additional Deputy Commissioners. Sub-section (3) provides
that all acts and things performed and done by the Director or the Deputy
Commissioner and additional Deputy Commissioner during his tenure of the
said office and in virtue thereof shall for all purposes be deemed to have been
performed or done by the Commissioner.
10. It may be noted that under sub-section (1), a Deputy
Commissioner does not merely, by virtue of his appointment as a Deputy
Commissioner, get all the powers of the Commissioner. He exercises such
powers and performs such of the duties of the Commissioner as the
Commissioner shall from time to time depute to him. The Commissioner may
delegate all or only some of the powers to the Deputy Commissioner and/or
an Additional Deputy Commissioner and reserve the remaining powers in
::: Downloaded on - 01/04/2024 16:53:48 :::
9
himself. Sub-section (2) further requires the Commissioner to inform the
corporation which of the powers or duties he has deputed (delegated) to the
Deputy Commissioner. This clearly indicates that the Commissioner is not
bound to delegate all or any of the powers to the Deputy Commissioner.
Sub-section 2A also provides that when an additional Deputy Commissioner
or more than one additional Deputy Commissioner are appointed, the
Commissioner may prescribe the respective spheres of operation of them
meaning thereby he may delegate some powers to the Deputy Commissioner
and some powers to the additional Deputy Commissioner or additional
Deputy Commissioners and he may retain some powers to himself without
delegating them to the Deputy Commissioner or an additional Deputy
Commissioner. When sub-section (3) says that all acts and things performed
by the Deputy Commissioner or an additional Deputy Commissioner shall
be deemed to have been performed and done by the Commissioner, it
obviously means the acts done by the Deputy Commissioner or an
additional Deputy Commissioner by virtue of the powers delegated to him
under sub-section (1). The Deputy Commissioner cannot perform any
functions which have not been delegated to him by the Commissioner under
sub-section (1). Sub-section (3) only means that the acts done by the Deputy
Commissioner or an additional Deputy Commissioner in respect of powers
delegated to him shall be deemed to be acts of the Commissioner. The
Deputy Commissioner has no power to perform any act, duty or function of
the Commissioner which has not been delegated to him by the Commissioner
under sub-section (1) of section 56. A forteori, an act performed by the
::: Downloaded on - 01/04/2024 16:53:48 :::
10
Deputy Commissioner without delegation under sub-section (1) of section 56
would not be regarded as done by the Commissioner by reason of the
deeming provision contained in sub-section (3) of section 56.
11. In the present case, the prosecution has not produced on record
any delegation made by the Commissioner to the Deputy Commissioner. Not
even a copy of any delegation by the Commissioner to the Deputy
Commissioner is produced on record, much less is it proved. The
prosecution was required to prove that the Deputy Commissioner had the
powers delegated to him under section 381 of the MMC Act. If such a
delegation was proved, then a further delegation by him to Mr.P.K. Desarkar
th
by order dated 10 August 1996 (Exhibit P-11) could be regarded as a
delegation by the Commissioner himself by reason of the deeming provision
of section 56(3) of the MMC Act. In the absence of the proof that the
Commissioner had delegated his power to issue notice under section 391 to
Deputy Commissioner, the delegation by the Deputy Commissioner to
Mr.P.K. Desarkar cannot be regarded as delegation under section 68 of the
MMC Act.
12. Learned counsel for the Municipal Corporation invited my
attention to a decision of the Supreme Court in Bombay Municipal Corporation
v. Dhondu Narayan Chowdhari, AIR 1965 SC 1486. In that case, one Govind
Hari was a monthly tenant of a room in a chawl belonging to the Municipal
Corporation. After his death in 1961, the tenancy devolved on his widow who
::: Downloaded on - 01/04/2024 16:53:48 :::
11
took in a boarder. Proceedings for her eviction were initiated under Chapter
VI-A of the MMC Act by an officer to whom the powers of the Commissioner
were delegated under section 68 of the MMC Act. It was contended that the
power of taking eviction proceedings was a quasi judicial power and could not
have been delegated under section 68. Rejecting the contention, the
Supreme Court held that though the quasi judicial power cannot ordinarily be
delegated unless the law expressly or by clear implication permitted it,
sections 105D and 105E of the MMC Act indicated legislative intention that
the judicial or quasi judicial powers contained in Chapter VI-A were intended
to be delegated. The issue before me is not whether the power could be
delegated by the Commissioner to the Deputy Commissioner, but is whether
there is any material on record to show that the powers were in fact delegated
by the Commissioner to the Deputy Commissioner. I have already held that
there is no material on record to prove the delegation. Consequently, the
decision is of no assistance to the Municipal Corporation.
13. Learned counsel for the Municipal Corporation also referred to
and relied upon a decision of this Court in Municipal Corporation of Greater
Mumbai v. P.V. Sebastian, 1993 (1) Bom. C.R. 717. There is some reference
to delegation of powers to the Deputy Commissioner under section 56 of the
MMC Act. However, in that case, it appears that there was no dispute as to
the fact whether the powers were delegated by the Commissioner to the
Deputy Commissioner under section 56(1) of the MMC Act. That appears to
have been an undisputed position. In the circumstances, that decision is also
::: Downloaded on - 01/04/2024 16:53:48 :::
12
of no assistance to the respondent.
15. In my view, the prosecution has failed to prove that Mr.P.K.
Desarkar was authorised to issue notice under section 381 of the MMC Act.
Consequently, it is not proved that the petitioner has failed to comply with a
legal and valid notice issued under section 381 of the MMC Act. The revision
application is accordingly allowed and the petitioner is acquitted of all the
charges. Fine, if it has been paid, be refunded to the petitioner.
(D.G. KARNIK, J.)
::: Downloaded on - 01/04/2024 16:53:48 :::