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.
4. Before the Bombay City Municipalities Act 1925 was made applicable to the Surat City Municipality that Municipality was governed by the provisions of the Bombay District Municipal Act of 1901. Under that Act certain rules were sanctioned and made applicable to the Municipalities governed by that Act by a Government resolution dated July 11, 1923. Rule 44 made under Section 46 of the Bombay District Municipal Act 1901 which is the same as Section 46 of the Bombay City Municipalities Act 1925 provides as follows:-
An executive committee may depute any of their members or the Chief Officer or any Municipal Officer or servant under the control of the Committee to perform the executive functions resultant from any of their resolutions. In the absence of any such specific deputation in the terms of a resolution, the necessary functions shall be performed by the Chief Officer.
5. The latter part of this rule would seem to apply to the notice in this ease. As there does not appear to be any specific deputation in the terms of the Standing Committee's resolution the necessary functions would have to be performed by the Chief Officer in issuing the notice.
6. It has been contended by Mr. Mehta that Rule 44 is ultra vires of Section 46 of the Bombay City Municipalities Act inasmuch as it confers not a specific but a general, power on the Chief Officer. No doubt if the powers conferred by Rule 44 detracted in any manner from the powers conferred on the Standing Committee by the Act the rule would be ultra vires of Section 46 of the Act. But it is not shown how the powers conferred on the Chief Officer in the latter part of Rule 44 could be said to detract from the powers that have been conferred under the Act on the Standing Committee.
7. It has also been urged by Mr. Mehta that as the rules have been framed and sanctioned under the Bombay District Municipal Act 1901 they would not apply to the Surat City Municipality in the absence of a special resolution in that behalf by the Bombay Government. Section 5 (1) (b) of the Bombay City Municipalities Act 1925 seems to be a complete answer to that contention.
8. The notice as issued, in my opinion, is not invalid because the Chief Officer and not the Chairman of the Standing Committee has signed it. The reference in the notice to a resolution of the Standing Committee makes it clear that the Chief Officer has signed the notice on behalf of the Standing Committee. The order of acquittal should be set aside and the accused convicted of an offence under Section 193 of the Bombay City Municipalities Act 1925. As this is the accused's first conviction under Section 193 a small fine, in my opinion, would meet the ends of Justice. He should be sentenced to pay a fine of Rs. 20. Should the drain continue undemolished the Municipality could, if so advised, bring a fresh prosecution against the accused.
9. I agree with the order proposed by my learned brother and with his reasons. 1 need only add a few remarks with reference to one or two of the points in the argument of Mr. Mehta who appears for the opponent (accused). He has argued that the Chief Officer cannot be held to have the power to sign a notice under Section 137 because that section empowers the Standing Committee to issue the notice, whereas when the power to issue the notice is conferred upon the Chief Officer it is so expressly stated, as for instance in Sections 135, 138 and 139 of the Act. But there is an obvious distinction between the power to decide whether a notice shall be issued and the mere executive act of signing the notice. Sections 135, 138 and 139 confer upon the Chief Officer powers in respect of certain matters which are similar to the powers conferred upon the Standing Committee by ' Section 137. But, in my opinion, there is nothing in this which is inconsistent with the view that the Chief Officer has the power delegated to him by the Municipal Rule 44 of signing the notice which has to be issued in consequence of the conclusion come to by the Standing Committee. Mr. Mehta was quite correct in pointing out that rules delegating powers made under Section 46 of the Act must be subject to any powers which have been conferred by the Act itself on the Chief Officer or on any Committee. The rules, therefore, must be consistent with and must not in any way detract from the powers conferred upon the Standing Committee by Section 37. If it had been provided in the rules that the Chief Officer was to have the power to issue a notice under Section 137 of his own motion, such a rule would obviously have been inconsistent with the Act and ultra vires. But a rule which merely allows the Chief Officer to sign the notice does not in any substantial way trench upon the powers of the executive committee. Mr. Mehta has told us that the position would have been different if the Chief Officer had signed the notice 'by order' or 'on behalf of the Standing Committee.' He seemed to be almost disposed to admit that in that case no objection could have been taken to the notice. I think it is quite clear that if there had merely been an omission to write such words as ' by order ' or ' on behalf of the Standing Committee' that would have been a mere defect of form which would have been cured by Clause (4) of Section 192 of the Act. For the reasons which have been given I do not consider that in this case there was any defect or irregularity in the notice in view of Rule 44 made under Section 46. The Chief Officer appears to be the proper person to sign such a notice. But even if that rule had not existed I should have been inclined to hold that the defect In the notice would merely have been a defect of form. It is quite clear that in substance there has been no irregularity. The Standing Committee decided that a notice ought to be issued. The resolution of the Standing Committee is referred to in the notice itself. To all intents and purposes then the notice which the Chief Officer signed is a notice issued by the Standing Committee in accordance with the maxim qui facit per alium, facit per se.