EMPEROR Vs. HEPTULLA ALIBHAI

JUDGEMENT

(1.) This is an appeal by the Government of Bombay against an order of the Bench of Second Class Honorary Magistrates, Surat, acquitting the accused of an offence under Section 193 of the Bombay City Municipalities Act of 1925.

(2.) The accused had constructed a drain on land which belonged to the Municipality of Surat without having first obtained permission from the Municipality in that behalf. He was prosecuted for that offence and was fined Rs. 10 on February 28, 1929. On April 8, 1929, the Chief Officer of the Surat City Municipality addressed a notice to the accused calling upon him under Section 137 of the Bombay City Municipalities Act of 192,5 to arrange to demolish the drain in respect of the construction of which he had been previously prosecuted and fined, within four days of the receipt of the notice and intimating that if he failed to comply with the direction within that time he would be prosecuted under a 193 of the Ace. The notice refers to a resolution No. 17 of the Standing Committee dated March 28, 1929. The accused not having complied with this notice was prosecuted before the Bench of Second Class Honorary Magistrates, Surat, for an offence under Section 193 of the Act. The Bench Magistrates held that the notice was not a valid notice because it was not signed by the Chairman of the Standing Committee but was signed by the Chief Officer of the Municipality and it was not shown that the Standing Committee had delegated its power of issuing such a notice to the Chief Officer.

(3.) Section 46 of the Bombay City Municipalities Act provides as follows:- Any powers or duties or executive functions which may be exercised, or performed by or on behalf of the municipality may be delegated in accordance with rules to be made by the municipality in this behalf, to the president or to the vice-president or to the chairman of the School or other committee, or to one or more stipendiary or honorary officers, but without prejudice to any powers that may have been conferred on the Chief Officer by this Act or on any committee by or under Section 37 or 38, and each person, who exercises any power or performs any duty or function so delegated, may be paid all expenses necessarily incurred by him therein.