STATE OF MAHARASHTRA Vs. N A RAHIMBHOY

JUDGEMENT

(1.) THIS is an appeal by the State against the acquittal of the respondent who was prosecuted for committing an offence under Section 471 of the Bombay Municipal Corporation Act for not complying with a notice issued to him by the Deputy Municipal Commissioner (Improvements) Bombay on April 28, 1955. This notice was issued under Section 274 (1) of the Act, which empowers the Commissioner by a written notice to require the owner of any premises furnished with a private water supply to provide such premises with cisterns and fittings of such size, material, quality and description as the Commissioner may think fit. It was urged before learned Magistrate that under Section 274, a notice can be issued only by the Commissioner, that the Commissioner's powers under this section could not be delegated to the Deputy Commissioner (Improvements) under Sections 68 of the Act and that consequently the Deputy Municipal Commissioner, (Improvements) had no power to issue notice to the respondent on April 20, 1955. On the oilier hand on behalf of the prosecution it was contended before the learned Magistrate that the necessary powers had been delegated to the Dy. Municipal Commissioner (Improvements) under Sections 56-B of the Act and that the notice issued to the respondent was therefore valid. The learned Magistrate however, took the view that as the powers under Sections 274 had not been and could not be delegated under Sections 68 to the Dy. Municipal Commissioner (Improvements), he was not competent to issue notice to the respondent under Sections 274. He, therefore, acquitted the respondent.

(2.) THE answer to the question, which has to ho determined in this appeal depends upon an interpretation of Sections 56, 56b and 68 of the Act. Sub-section (1) of Sections 56 provides that a Deputy Commissioner shall be subordinate to the Commissioner and 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 (3) of this section states that all acts and things performed and done by a 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. Sub-section (1) of Section 56b states that ''the Deputy Municipal Commissioner (Improvements) 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 ill connection with the improvement of the City and such other duties of a Deputy Municipal Commissioner as the Commissioner may from time to time direct. Provided that the Commissioner shall inform the Corporation of the powers and duties which he from time to time deputes to the Deputy Municipal Commissioner (Improvements)".

(3.) SUB-SECTION (2) of Sections 56b is similar to Sub-section (8) of Sections 56 and states that all ads and things performed and done by the Deputy Municipal Commissioner (Improvements), 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. Sub-section (1) of Sections 68 states that 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 by any Municipal Officer whom the Commissioner generally or specially empowers in writing in this behalf. Under Sections 68, therefore, the Commissioner can empower a Municipal Officer to exercise, perform or discharge only such of his powers, duties or functions as are specified in the sections, sub-sections or clauses mentioned in Sub-section (2) of this section.