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State Vs. N.A. Rahimbhoy - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai High Court
Decided On
Case NumberCriminal Appeal No. 1470 of 1955
Judge
Reported inAIR1957Bom78; (1956)58BOMLR600; 1957CriLJ364; ILR1956Bom572
ActsCode of Civil Procedure (CPC), 1908; Bombay Municipal Corporation Act, 1888 - Sections 56, 56(1), 56(3), 56B, 56B(1), 56B(2), 68, 68(1), 68(2) and 274
AppellantState
RespondentN.A. Rahimbhoy
Appellant AdvocateH.M. Choksi, Govt. Pleader
Respondent AdvocateT.N. Walawalkar, Adv.
Excerpt:
bombay municipal corporation act (bom. iii of 1888), sections 56, 56b, 68, 274(1) -- notice under section 274(1) issued by deputy municipal commissioner -- whether deputy municipal commissioner competent to issue notice -- whether powers and duties of commissioner specified in act but not mentioned in section 68(2) can be delegated to deputy municipal commissioner under sections 56 or 56b.;it is competent for a commissioner to direct under sections 56 and 56b of the bombay municipal corporation act that a deputy municipal commissioner shall exercise such of his powers and perform such of his duties conferred or imposed upon him by the act, including those specified in sections not referred to in section 68(2) of the act, as he, the commissioner, may deem proper. - .....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.....
Judgment:

Chainani, J.

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.

4. A Deputy Municipal Commissioner is a Municipal Officer and the question for consideration, therefore is whether he caw exercise and perform only those powers and duties as pan be assigned to him under Sections 68 or whether the powers and duties of the Commissioner specified in the Act but not mentioned in Sub-section (2) of Sections 68, can also be delegated to him under Sections 56 or Sections 56B, as the case may be. If the view that a Deputy Municipal Commissioner can exercise and perform only those powers and duties as he could be empowered to exercise and perform under Sections 68, was correct the provisions in Sections 56 and Sections 56B for delegating or assigning powers and duties to a Deputy Municipal Commissioner would become un-necessary and superfluous. An Act ought to be so construed that no part of it becomes superfluous, void or insignificant, Queen v. Bishop of Oxford (1879) 4 QBD 245. Next to the Commissioner, the other principal executive officers of the Corporation are the Deputy Municipal Commissioners and the legislature evidently intended that they should exercise and perform all the powers and duties of the Commissioner which the Commissioner considers it necessary or proper to delegate to them and not merely those which he could assign to them under Sections 68. This is evidently the reason why special provisions in this regard have been inserted in Sections 56 & 56B. The ordinary rule of interpretation is that where there is a general provision & a special provision in regard to any matter, the special provision will prevail, in case there is a conflict between the two provisions. There are also no words in Sections 56 and Sections 56B, which suggest that these sections are to be read subject to the provisions of Sections 68 They do not say that a Deputy Municipal Commissioner shall exercise such powers and perform suck duties as the Commissioner may depute or direct under Sections 68. In our opinion, they are independent provisions, which, are not controlled by Sections 68.

5. We are accordingly, of the opinion that it is, competent for a Commissioner to direct under Sections 50; and 58B that a Deputy Municipal Commissioner shall exercise such of his powers, and perform such of his duties conferred or imposed by him by the Act, including those specified in sections not referred to in Sub-section (2) of Sections 68 as he, the Commissioner, may deem proper. Of course under the proviso to Sub-section (1) of Sections 56B, the Commissioner has to inform the corporation of the powers and the duties assigned by him to the Deputy Municipal Commissioner (Improvements). That has been done in the present case.

6. The Deputy Municipal Commissioner (Improvements) was, therefore, competent to issue notice to the respondent under Sections 274 of the Act.

7. The Order passed by the learned Magistrate acquitting the respondent is, consequently, set aside and he will be directed to hear the case on merits and then dispose of it in accordance with law.

8. Order set aside.


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