THAKUR GOVIND DEOJI MAHARAJ Vs. MUNICIPAL BOARD

JUDGEMENT

(1.) This is a plaintiff's appeal and arises out of a suit brought by himj against the defendant-respondent for a declaration that the notices issued by the defendant to the plaintiff are illegal and beyond the scope of Section 269, U.P. Municipalities Act (No. 2 of 1916) and for a perpetual injunction restraining defendant 1 from issuing such notices in future and from realizing the amount of the bill No. 82 of 10 May 1933 and other bills in pursuance of the said notices. The plaintiff who is an idol is a landlord in the town and village of Bindraban where he owns considerable land. There were depressions in some plots and defendant 1 issued notices to the plaintiff to fill them up under Section 269, U.P. Municipalities Act. On the plaintiff's failure to comply with the notices, the depressions were filled up by defendant 1 and defendant 1 served the plaintiff with notices in question for the payment of the costs of the filling up of the depressions. The plaintiff's case is that the depressions being natural, defendant 1 had no power to ask the plaintiff under Section 269, U.P. Municipalities Act, to fill them up. The legality of the notices was also questioned by the plaintiff on the ground that they were issued by the Medical Officer to whom the Board could not delegate any power under Section 269 and the Medical Officer therefore was not competent to issue any notice under Section 269. The defendant contended that the suit was time-barred, that it had full power under Section 269 to issue the notices in question and that the Medical Officer was quite competent to do so. Both the Courts below have dismissed the suit. As regards the question of limitation, the trial Court found that the suit was not time- barred but the lower Appellate Court has found that it is time-barred.

(2.) It has been contended on behalf of the appellant that the Medical Officer who issued the notices was not competent to do so. Reliance is placed on Schedule 1 annexed to the Municipalities Act, according to the appellant, the powers under Section 269 could not be delegated under Section 112, Clause (1)(a), to the Medical Officer as there was no entry against Section 269 in Col. 3 of Schedule 1. Section 112(1) lays down: With the exception of a power, duty or function : (a) specified in Col. 2, and against which no entry is shown in Col. 3 of Schedule 1; (b) reserved or assigned to Chairman by Clauses (a), (b) and (c) of Section 60 or by Section 61; and (c) where there is an Executive Officer, reserved to that officer by Rule 60, a Board may delegate by regulation all or any of the powers, duties or functions conferred or imposed on, or assigned to a Board under this Act.

(3.) Section 269 is divided into two parts, one of which deals with the removal of a nuisance from tanks and the like when for such removal the Board has to acquire or provide land. It is mentioned in Schedule 1. The other part deals with the cleansing, repairing, covering, filling up or draining off of wells and tanks etc, which applies to the present case and is mentioned in Schedule 2. Schedule 2 deals with the powers of Executive Officer. Where there is an Executive Officer, the powers mentioned in Schedule 2 which includes the power under Section 269 "to require the cleansing, repairing, covering, filling up or draining off of wells and tanks etc" cannot be delegated under Section 112. There is no Executive Officer in this Municipal Board and consequently the powers mentioned in Schedule 2 could be, and have been, delegated. The powers under Section 269 have been delegated to the Medical Officer under a bye-law framed by the Municipal Board. A right of appeal within ten days to the Board from the orders of the Medical Officer has been given to the person aggrieved. It would thus appear that the power having been duly delegated to the Medical Officer under Section 112(1), U.P. Municipalities Act, and the bye-law of the Municipal Board, he was quite competent to issue notices under Section 269 as he did and the notices issued by him were quite valid.