DULA MAL SONI Vs. NEW DELHI MUNICIPAL COMMITTEE

JUDGEMENT

(1.) JUDGMENT

(2.) DULLA Mal, plaintiff, appellant, alleges that he is in occupation of a shed in the backyard of plot No. N/99 Connaught Circus, completed by him several years ago and repaired in or about December, 1959, New Delhi Municipal Committee respondent, alleging that it was an unauthorized construction issued a notice to the appellant under section 195 of the Punjab Municipal Act on 3-1-1961. This notice was signed by Shri A. P. Mehta, Assistant Secretary. This was followed by another notice dated 17-4-1961 under section 220 of the said Act. By both these notices, the appellant was required to remove the structure. On 27th April, 1961, the appellant filed a suit alleging inter alia that the structure was more than 6 months old and, therefore, could not be demolished and that the notices under sections 195 and 220 were not issued by a person authorised in that behalf. The respondent. New Delhi Municipal Committee, denied both the contentions and urged that the structure had been constructed in November, 1960. Both the Courts below agreed with the respondent and decided that the notice - under section 195 was within time. That finding of fact has however, riot-been challenged before me. The only contention urged -by -Mr. Whig, the learned counsel for. the appellant is about the authority of the persons signing notices under sections 195 and 220 of the said Act. The onus of the relevant issue being issue No. 1, was placed on the plaintiff appellant. Mr. Whig's contention is that the notice under section 195 purports to have been signed by the Assistant Secretary, and the notice under section 220 by the Secretary and the New Delhi Municipal Committee has produced no evidence, not even a resolution showing that these persons had been delegated the powers of issuing such notices. This contention was answered against the appellant by the lower Appellate Court on the ground that section 114 of the Evidence Act raised a presumption that all official acts had been regularly performed. Mr. Whig, the learned counsel for the appellant says that the presumption under section ' 114 is only as to the regularity of the acts and not that the acts have been done. He has relied on Ram Partap Marwari v. Emperor, Khurshid Chik v.Raniganj, Municipality, and Swadeshi Cotton Mills Co. Ltd. v. State Industrial Tribunal, U. P. and others', Mr. Whig has drawn . my attention to section 33 of the said Act and says that powers under section 195 of the said Act could be conferred on the Municipal Engineer alone and secondly that even if the Municipal Engineer had been delegated with the power, the notice must still by signed by the said Municipal Engineer. The suggestion being that issue of the notice itself is a power under section 195 exercisable by the delegate alone. Mr. Misra, the learned counsel for the respondent, has on the oilier .band relied on documents-Exhibited Dl/I, Dl/2 and Dl/5, which show that the notices were issued under the orders of the Municipal Engineer. He also seeks aid from section 215 of the said Act and contends that all such notices under section 195 have necessarily to be signed by the Secretary or the Assistant Secretary. It is then said that the order of the Municipal Engineer directing issue of notice was signed as "Municipal Engineer N.D.M.C," and, therefore, on behalf of New Delhi Municipal Committee, which gave rise to presumption under section 114 of the Evidence Act that he had been so authorised under section 33 of the said Act. Apart from invoking the provisions of section 114 of Evidence Act, which I shall discuss a little latter.I would like-'to point out that the onus of the issue was placed on the plaintiff and yet he took' no steps to summon the records of the Municipal Committee to prove or disprove the passing of any resolution delegating power to any of its officers. Moreover in my opinion the Municipal Engineer having signed on behalf of New Delhi Municipal Committee, there would be presumption that the powers had been delegated to him and it was in the circumstances for the plaintiff to disprove the same. Once it is presumed that the Municipal Engineer had been delegated with the powers of issuing notices, the same would have to be 'signed undersection 215 by any of the officers mentioned therein and must, therefore, be held to have been properly signed by the Secretary or the Assistant Secretary. When a delegate exercises a power, he does so on behalf of the Principal and consequently when the Municipal Engineer directs issue of a notice it would be a notice by the Committee and will have to be signed in accordance with section 215. The proviso to section 215 lends support to the view that I am taking. Under the said proyiso, the Medical Officer of Health has been expressly authorised to sign a notice issued by the Committee under any section of the said Act under which power may be delegated to him in persuance in section 83(-b) and has been so delegated. The effect of the proviso is that where for instance powers have been delegated to the Medical Officer of Health with respect to section 105 of the said Act, he may sign the notice issued under that provision. It shows that in the absence of the proviso, even a notice under section 105 would have to be signed by the Secretary or the Assistant Secretary in spite of delegation of power. It follows that except in cases covered by the proviso all the notices issued by the Comittee have to be signed by the officers mentioned in section 215 of the said Act. My conclusions, therefore, are that