# ' BOMBAY MUNICIPAL CORPORATION v. DHONDUNARAYANCHOWDHARY

- **Citation:** [1965] 2 S.C.R. 929
- **Court:** Supreme Court of India
- **Decided:** 1965-02-08
- **Bench:** P. B. Gajendragadkar, M. llIDAYATULLAH, J. c. SHAH, s. M. SIICRI
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/bombay-municipal-corporation-v-dhondunarayanchowdhary-3373
- **Pages:** 5

## Headnote

Bombay City Corporation A.ct, s. 6S-Commbsk>ner empowered to
d•l•gat• hi.r judicial functions und<r Chapter YJ-A.-Pow•r1
delegated
subject to Commi.rsionet's 'contror and 'subject to his rl!Vlston'-Delegation whether proper.
One C a tenant o! a Chaw! 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 otllcer
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 al'peal filed under s. IOSF of the Act before the
Bombay City Ci\il Court it was held that the delegation of the Commiasioner's power was not proper inasmuch as the judicial functions of the Commissioner undet ss. 1 OSB to IOSE 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 ~erent
matters because Chapter VI-A could not then have been in contemplation.
When Chapter VI-A was added and a reference to ss. IOSB to IOSE
was included in s. 68, the wording of that section became applicable to
the powers exercisable under ss. I OSB to I OSE, even though that wordina.
taken literally, is somewhat inapt to cover delegation of judicial power. [932
DJ
(ii) To the delegation of judicial power as such there can be no
objection when the law either expressly or by necessary implica~on permits it. In the present case the amendment of s. 68 by inclusion of the
delegation of the function of the Commissioner under "'· I OSB to 1 OSB
does indicate the intention that the judicial and quasi-judicial power1
contained in Chapter VI-A were expressly intended to be delegated. The
words
11the 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 conatrued.
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. Tht
-control envisaged was not control over the decision as such but over the
administrative aspects of cases and their disposal and the delegstion was
valid.
[932 F-933 BJ
The order of the Bombay City Civil Court could not therefore be
sustained.
CML APPELLATE JURISDICTION : Civil Appeal No. 865 of
1964.
930
SUPRBMB COURT REPORTS
[1965] 2 S.C.R.
Appeal by special leave from the judgment and order dated
A
February 14, 1964 of the Bombay City Civil Court at Bombay in
Appeal No. 86 of 1963.
M. C. Setalvad, J.B. Dadachanji, 0. C. Mathur and Ravinder
Naraln, for the appellant.
B. K. Bhattacharjee and S. N. Mukherjee, for the respondent.

## Text

A
B
c
D
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G
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BOMBAY MUNICIPAL CORPORATION
v.
DHONDUNARAYANCHOWDHARY
February 8, 1965
[P. B. GAJENDRAGADKAR, C.J., M. llIDAYATULLAH, J. c. SHAH
AND s. M. SIICRI, JJ .]
Bombay City Corporation A.ct, s. 6S-Commbsk>ner empowered to
d•l•gat• hi.r judicial functions und<r Chapter YJ-A.-Pow•r1
delegated
subject to Commi.rsionet's 'contror and 'subject to his rl!Vlston'-Delegation whether proper.
One C a tenant o! a Chaw! 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 otllcer
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 al'peal filed under s. IOSF of the Act before the
Bombay City Ci\il Court it was held that the delegation of the Commiasioner's power was not proper inasmuch as the judicial functions of the Commissioner undet ss. 1 OSB to IOSE 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 ~erent
matters because Chapter VI-A could not then have been in contemplation.
When Chapter VI-A was added and a reference to ss. IOSB to IOSE
was included in s. 68, the wording of that section became applicable to
the powers exercisable under ss. I OSB to I OSE, even though that wordina.
taken literally, is somewhat inapt to cover delegation of judicial power. [932
DJ
(ii) To the delegation of judicial power as such there can be no
objection when the law either expressly or by necessary implica~on permits it. In the present case the amendment of s. 68 by inclusion of the
delegation of the function of the Commissioner under "'· I OSB to 1 OSB
does indicate the intention that the judicial and quasi-judicial power1
contained in Chapter VI-A were expressly intended to be delegated. The
words
11the 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 conatrued.
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. Tht
-control envisaged was not control over the decision as such but over the
administrative aspects of cases and their disposal and the delegstion was
valid.
[932 F-933 BJ
The order of the Bombay City Civil Court could not therefore be
sustained.
CML APPELLATE JURISDICTION : Civil Appeal No. 865 of
1964.
930
SUPRBMB COURT REPORTS
[1965] 2 S.C.R.
Appeal by special leave from the judgment and order dated
A
February 14, 1964 of the Bombay City Civil Court at Bombay in
Appeal No. 86 of 1963.
M. C. Setalvad, J.B. Dadachanji, 0. C. Mathur and Ravinder
Naraln, for the appellant.
B. K. Bhattacharjee and S. N. Mukherjee, for the respondent.
The Judgment of the Court was delivered by
B
Hidayatullah,_ J. In this appeal by special leave against the
judgment and order of the Principal Judge, City Civil Court,
Bombay dsited February 14, 1964, the only question is whether the
C
delegation- by the Commissioner, Municipal Corporation of his
functions under ss. I OSB to 1 OSE to certain officers of the Corporation was valid and proper. This question arises in the following circumstances :
One Govind Harl was a monthly tenant of room No. 23 of a chaw/ D
at Chandanwadi. After his death in 1961 the tenancy devolved on
his widow Anusuyabai, who took in a boarder. The chaw/ 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
E
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 judicia!functions of the Commissioner under ss. 105B
F
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
G
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 Jollows :
"68. Municipal officers may be ompowered to exercise certain of the powers, etc. of the Commissioner.
H
,
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.,
A
B
c
D
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MUNC. CORP. v. D. N. CHOWDHARY (Hidayatullah, J.)
931
( 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 municip11l
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 exlent 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 ChapF ter 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 :
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"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) .
l•J
l•l
932
SUPJ.l!MI! COUJl.T Rl!POllTS
[ 1965] 2 S.C.R.
(ii) sub-Jet, 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 Jaw for the time being
in force, by notice . .
. . order
that that person, as well as any other person who may be in occupation of the whole
or any part of the premises, shall yacate 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
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B
c
ss. I 05B to I 05E was included in s. 68, the wording of that section D
became applicable to the powers exercisable under ss. I 05B to
105E, even though that wqrding, 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 E
goes without saying that judicial power cannot ordinarily be delegated unless the law expressly or by clear implication permits it.
4·
In the present case the amendment of s. 68 by inclusion of delegation of the functions of the Commissioner under ss. 105B to
105E docs indicate the intention that the judicial or quasi-judicial
powers contained in Chapter VIA were expressly intended to be F
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 ii:t
G
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
H
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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A
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MUNC. CORP. v. D. N. CHOWDHARY (Hidayatullah, J.)
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 ot the Commissioner and
C 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.
D
We allow the appeal and set aside the order of the Bombay
E
City Civil Court and restore the order of the officer who exercised
powers under s. 1 OSB of the Act, but make no order about costs.
Appeal allowed.