Case: Bombay Municipal Corporation Vs. Dhondu Narayan Chowdhary

1. 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 developed 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 inasmuch as the judicial functions of the Commissioner under Ss. 105B to 105E had been delegated to exercise under the Commissioners 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.

Reasoning: 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 power exercisable under Ss. 105B to 105E even though that wording taken literally, is somewhat inapt to cover delegation of judicial power3. 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 Commissioners control" and "subject to his revision." These words are really appropriate to a delegation of administrative functions where the control may be deeper then 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 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 delegates duties was 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 cased 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.