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S.i. Mumtaz Yakoob Shah Mian Vs. State of Mysore and anr. - Court Judgment

LegalCrystal Citation
SubjectMunicipal Tax
CourtKarnataka High Court
Decided On
Case NumberWrit Petn. No. 153 of 1958
Judge
Reported inAIR1959Kant215; AIR1959Mys215
ActsMysore Town Municipalities Act, 1951 - Sections 14, 14(2), 14(3), 24, 24(1), 25, 29, 35, 38(7), 46, 46(1), 48(1), 92, 92(3), 120, 166, 178, 161(1) and 218; Mysore Town Municipalities (Determination of Vacancy of Councillors) Rules, 1956 - Rules 3 and 4; Mysore Municipalities Regulation, 1906 - Sections 24 and 161; Mysore Town Municipalities Act, 1933 - Sections 158 and 158(1)
AppellantS.i. Mumtaz Yakoob Shah Mian
RespondentState of Mysore and anr.
Appellant AdvocateV. Krishna Murthi, Adv.
Respondent AdvocateAdv. General and ;K.R. Subbannachar, Adv.
Excerpt:
- motor vehicles act, 1988 [c.a. no. 59/1988]section 168; [ram mohan reddy, j] quantum of compensation bodily injury - held, bodily injury is to be treated as deprivation entitling the claimant to damages, the amount of which varies according to the gravity of the injury. deprivation due to injuries brings with it there consequences, viz., (i) loss of earning and earning capacity; (ii) expenses to pay others for what otherwise he would do for himself; (iii) loss or diminution in full pleasures and joys of living. further, although it is not possible to equate money with human suffering or personal deprivation, the court has duty to make an attempt to award damages so far as money can compensate the loss. while considering deprivation, the court should have regard to the gravity and.....somnath iyer, j.1. this writ petition and its companion writ petition w. p. no. 156/58 raise the same question. the material facts relating to w. p, 153/58 are these:2. the petitioner in this writ petition was a councillor of the channapatna town municipal council. on 19-4-1957, a notice purporting to have been issued under the provisions of sub-section (2) (d) or section 14 of the mysore town municipalities act, 1951, was sent to the petitioner under the signature of the president of the town municipal council of channa-patna. by that notice, the petitioner was informed that if he failed to pay, within the period mentioned in that notice, the arrears of taxes due by him to the municipal council, he would incur the disability provided by sub-section (2) (d) of section 14 of the act.3. it.....
Judgment:

Somnath Iyer, J.

1. This Writ Petition and its companion writ petition W. P. No. 156/58 raise the same question. The material facts relating to W. P, 153/58 are these:

2. The petitioner in this writ petition was a councillor of the Channapatna Town Municipal Council. On 19-4-1957, a notice purporting to have been issued under the provisions of Sub-section (2) (d) or Section 14 of the Mysore Town Municipalities Act, 1951, was sent to the petitioner under the signature of the President of the Town Municipal Council of Channa-patna. By that notice, the petitioner was informed that if he failed to pay, within the period mentioned in that notice, the arrears of taxes due by him to the Municipal Council, he would incur the disability provided by Sub-section (2) (d) of Section 14 of the Act.

3. It is not disputed that the petitioner failed to pay the arrears so demanded of him, consequent on which an order was made by the Government, under the provisions of Sub-section (2) (d) of Section 14 of the Act, on 10-1-1958, declaring that the petitioner had become disabled from continuing to be a, councillor of that Municipal Council A copy of that order made by the Government was communicated to the petitioner by the President of the Municipal Council, on 21-2-1958.

4. It is slated that the petitioner then applied to the Government for a reconsideration of the order made by it oh 10-1-1958. It is stated that in that application the petitioner pointed out to the Government that the order made by it having been made in contravention of the rules pertaining to that matter, and without hearing the petitioner, was unsustainable.

5. The Government then heard the petitioner and by its order made on 10-5-1958, it reached the same conclusion that the petitioner had become disabled from continuing to be a councillor of the Town Municipal Council of Channapatna.

6. This application is for certiorari to bring up and quash that order made by the Government.

7. In this writ petition it is not disputed on behalf of the petitioner that he had failed to pay the arrears of taxes due by him to the Municipal Council although before the Government it was contended on behalf of the petitioner that the taxes demanded of him in the notice issued by the President were not actually due from him. The finding of the Government was that the petitioner had failed to pay the arrears of taxes due by him. Mr. Krishna Murthy, learned counsel for the petitioner, very properly, has not attempted to dispute the correctness of that finding of fact recorded by the Government.

Indeed, it would have been impossible for him to raise any such contention for the reason that after the notice was issued by the President demanding the petitioner to pay the arrears of taxes due by him the petitioner admitted that ho was in such arrears and that he was willing to pay those arrears. It is also not disputed that those arrears due by the petitioner were actually paid by him though not within the period of three months after the notice had been served upon him.

8. Mr, Krishna Murthy has also not contended very seriously that the requirements of the Mysore Town Municipalities (Determination of Vacancy of Councillors) Rules 1956, were not complied with by the Government when it received the reference referred to in Rule 3 of those Rules.

9. Rule 3 of those rules provides that if any question or dispute arises whether a vacancy has occurred under Sub-section (2) of Section 14, the Deputy Commissioner or the President of a Municipal Council or any other authority before whom such question or dispute is raised, shall make a reference along with the relevant documents to the Government through the Commissioner for Local Self-Government in Mysore.

10. It is not disputed that such a reference was made by the President of the Municipal Council to the Government.

11. Rule 4 of those rules provides that on receipt of a reference under Rule 3, the Government shall, after giving a reasonable opportunity to be heard, to the person in respect of whom the question or dispute has arisen, and after such enquiry as the Government deems fit, pass orders deciding the question or dispute referred to it.

12. It is also not disputed that the Government gave a reasonable opportunity to the petitioner when it conducted the proceedings before it on the reference made to it under Rule 3.

13. Mr. Krishna Murthy has however very strenuously argued that the reference made by the President under Rule 3 of those rules was itself incompetent. His argument is that the notice which the President issued on 19-4-1957, purporting to act under Sub-section (2) (d) of Section 14 was an ineffective notice. His argument is that the President of the Town Municipal Council had no authority or power lo issue that notice. That notice, according to him, could be issued and should have been issued only by the Municipal Council.

14. If this contention of Mr. Krishna Murthy is correct, then it follows -- unless that argument has to fail for some other reason -- that the reference made by the President under Rule 3 of the Determination of Vacancy of Councillors Rules, 1956, was, as contended by Mr. Krishna Murthy, an incompetent reference thereby rendering the impugned order made by the Government on 10-5-1958, liable lo be quashed.

15. The question therefore is whether the petitioner was properly served with the notice required by Sub-section (2) (d) of Section 14 of the Act. The relevant provision of that rule is as follows:

14(2) 'If any councillor during the term forwhich ho has been elected or appointed

x x x x (d) fails to pay any arrears of taxes due by him to the Municipal council within three months after a special notice in this behalf has been served upon him,

he shall be disabled from continuing to be a councillor and his office shall become vacant.'

Sub-Section (3) of Section 14 runs:

'If any question or dispute arises whether a vacancy has occurred under this Section, the orders of the Government shall be final for the purpose of deciding such question or dispute.'

16. It was under Sub-section (3) referred to above-and by adopting the procedure prescribed by the Determination of Vacancy of Councillors Rules, 1956, that the Government made the impugned order.

17. Mr. Krishna Murthy's contention is that the notice required to be issued under clause (d) of Sub-section (2) of Section 14 is, as that clause itself suggests, a notice to be issued by the Municipal Council. In other words, the act of issuing the notice is a corporate act, to be performed by the corporate body, the President having no authority or power to issue Such notice.

18. It must be stated here that this contention was not raised before the Government and was not, therefore, considered by it. But that does not mean that the petitioner is precluded from raising that contention in this writ petition although Mr. Subbanna-cbar, appearing for an intervener in this writ petition contended with great emphasis that, that argument was not available to the petitioner in this writ petition.

19. Mr. Chandrasekhar, the learned Government Pleader has contended that the answer to this contention is contained in Section 24 (1) (d) of the Act. He has argued that what the President did, when he issued the notice to the petitioner, was that he performed an executive function which he was bound to perform under Clause (d) of Section 24(1) of the Act. Mr. Chandrasekhar's contention is that the Act not only statutorily delegates to the President the authority and power to perform certain executive functions but also provides for a statutory delegation to him of powers under the provisions of the Act itself.

In this case, the delegation in regard to the performance of the executive functions which may be performed by or on behalf of the Municipal Council was, according to him, made under the provisions of Clause (d) of Sub-section (1) of Section 24 of the Act. Mr. Chandrasekhar therefore argues that if the issue of the notice by the President can be regarded as a mere executive function which could have been performed by or on behalf of the Municipal Council the President who presided over such Municipal Council, was, under the provisions of that clause referred to above, competent to issue that notice, it being merely the performance of an executive function which could have been performed by or on behalf of the Municipal Council.

20. Mr. Krishna Murthy has suggested that this argument of Mr. Chandrasekhar should not be accepted for more than one reason. His first argument is that the notice under Clause (d) of Sub-section (2) of Section 14 being a special notice to be issued so as to entail the serious consequence of a councillor becoming disabled from continuing as a member, its issue is not a mere executive function but an act to bo performed by the Municipal Council as a corporate act and after necessary deliberation, in a meeting convened for that purpose.

He also contends that that clause on which Mr. Chandrasekhar has relied, being subject to the provisions of Section 35 of the Act, delegates to the President only those powers which are actually delegated to him under the provisions of Section 35 of the Act. If no delegation has been made under the provisions of Section 35 of the Act, Mr. Krishna Murthy's contention is that Clause (d) of Sub-section (1) of Section 24 does not confer on the President such powers. Mr Krishna Murthy has also urged that as the Act itself reveals in many parts of it, a notice to be issued like the one required by Clause (d) of Sub-section (2) of Section 14 of the Act is a notice to be issued by the Municipal Council itself and in this particular case it should have been in the form in which' a notice under Sub-section (3) of Section 92 of the Act could be issued.

21. It should be mentioned here that the notice required to be issued under Sub-section (3) of Section 92 of the Act has to be issued in the form found in Sch. X to the Act,

22. An examination of the contention raised by Mr. Krishna Murthy requires a reference to the relevant provisions of Section 24 of the Act. Those provisions are these:

'24. (1) Subject to the provisions of chapterXIII, it shall be the duty of the President of a Muni-municipal Council to:

x x x x (c) perform all the duties and exercise all the powers specifically imposed or conferred upon him by, or delegated to him under and in accordance with the Act;

(d) subject to the provisions of Section 35 and of the rules for the time being in force, perform such other executive functions as may be performed by or on behalf of the Municipal council over which he presides.'

23. It is not contended that there is anything in Chapter XIII of the Act which takes away any of the powers such as those that are conferred on the President of this Municipal Council under the above-clauses of Section 24 of the Act. But, as I have mentioned, the contention is that in order that the President might perform the executive functions referred to in-Clause (d) of the Act there should have been a delegation in his favour to that effect under the provisions of Section 35 of the Act.

24. Section 35 of the Act is:

'Any powers or duties or executive functions which may be exercised or performed by or on behalf of the Municipal council may be delegated, in accordance with rules to be made by the Municipal council in this behalf, to the president or to the vice-president, or to the chairman of any committee, or to one or more stipendiary or honorary officers, but without prejudice to any powers that may have been conferred on any committee by or under Section 29; 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.'

25. Mr. Krishna Murthy has urged that the-words 'subject to the provision of Section 35' occurring in clause (d) of Sub-section (1) of Section 24 of the Act mean that the President cannot perform any of the executive functions referred to in that clause unless there has been a previous delegation in that regard under Section 35 of the Act. Mr. Krishna Murthy has also contended that even if there had been a previous delegation, the conferment of the power referred to in clause (d) of Sub-section (1) of Section 24 of the Act is subject also-to the rules for the time being in force and he suggests that those rules are the rules which the Government has the power to make under Section 46 of the Act.

26. The relevent provision of that Section is this:

'46. (1) The Government shall, as soon as maybe, make rules, not inconsistent with this Act;--

x x x x (b) (i) determining the executive functions to be performed by the president, vice-president, the chairman of any committee, or the executive officer and the delegation of any of its powers or duties to such persons.'

27. The question therefore is whether Mr. Krishna Murthy's contention that the President could not perform any of the executive functions referred to in Clause (d) of Sub-section (1) of Section 24 of the Act unless there has been not only the delegation but also a determination of those powers by the Government under Section 46 of the Act, can be accepted as sound.

28. In my opinion, that is not the way to read Section 24(l)(d), Section 35 or Section 46(l)(b)(i) of the Act. The -words 'subject to the provisions of Section 35 and of the -rules for the time being in force' occurring in Clause (d) of Sub-section (1) of Section 24 of the Act only mean that the President who is otherwise empowered to perform the executive functions referred to in that clause, becomes incompetent to exercise such functions, it those powers have been taken away from him either by delegation under Section 35 or by their determination by the Government under the provisions of Section 46 of the Act. In other words, those powers conferred on the President under Clause (d) of Sub-section (1) of Section 24 of the Act remain and are exercisable by him unless they are taken away by a ' delegation or a determination as the case may be, made under Section 35 or Section 46 of the Act.

29. It is not suggested in this case that there was either any such delegation or determination under any of those two Sections. The position there fore is that the President of the Town Municipal . Council was competent to perform all the executive functions which could have been performed by and on behalf of the Municipal Council of Channapatna on the date on which he issued the notice to the petitioner under the provisions of Clause (d) of Sub-section (2) of Section 14 of the Act.

30. I am fortified in the view that I have taken by a Full Bench decision of the then Chief Court of Mysore, reported in Kenchappa v. Government of Mysore -19 Mys CCR 235, with which I most respectfully agree. In the order of reference to the Full Bench, Chandrasekhara Aiyar J. in dealing with this question which arose out of the provisions of Section 24 of the Mysore Municipal Regulation of 1906 under which the President of the Municipal Council was empowered, subject to the rules of the Municipal municipal Council for the time being in force, to perform such executive function as may be performed by or on behalf of the Municipal Council over which he presides, said this:

'I am of opinion that so far as the President is concerned no express delegation in this matter is necessary, since Section 24 makes it his duty, 'subject to the rules of the Municipal Council at the time being in force, to perform such executive functions as may be performed by or on behalf of the Municipal Council over which he presides. That is to say, unless rules arc passed limiting his powers, it is the President that exercises all executive functions on behalf of the Municipal Council; he has a free hand in all cases where no special restrictions have been put upon him.'

31. In the judgment delivered by the Full Bench, this is what they slated in regard to that matter:

'By Section 24(b) the President is empowered to perform the executive function which may be performed by the Council--and the function of directing a prosecution, it is now conceded for the purposes of this case, is one of them -- subject to such rules as are in force at the time; and that seems naturally to mean that in the performance of executive functions on behalf of the Council he must have regard to. and is bound by rules which may be in force, but if there are no rules, then his power is not restricted This we think is the correct construction of the Section.'

With great respect, I agree with the view taken by the Full Bench in that case. I should mention here that the detegation, which in their opinion was a statutory delegation, related to the question as to whether the President of the Municipal Council had or had not the competence to direct a prosecution under the provisions of Section 161 of the Mysore Municipal Regulation of 1906.

32. If it is therefore clear that the President of the Municipal Council in this case had unrestricted power to perform the executive functions which might be performed by or on behalf of the Municipal Council over which he presided, the question that next arises is whether the issue of a notice under clause (d) of Sub-section (2) of Section 14 of the Act is in the nature of an executive function or not.

33. Mr. Krishna Murthy has strongly contended that the issue of that notice is not an executive function. His contention is, as I have already mentioned, that that act has to be performed by the Municipal Council acting as a corporate body. It is, according to his contention, a corporate act which cannot be performed by an agent of the Municipal Council which the president of the Channapatna Town Municipal Council was.

34. At one stage during the course of his argument Mr. Krishna Murthy in support of this contention, drew our attention to the provisions of Section 92 of the Act. He pointed out to us that Section 92 of the Act required the notice referred to in that Section to be issued by a Municipal Council. The notice referred to in that Section is a notice demanding of the person liable to pay the taxes referred to in that Section to pay such taxes, and that Section provides that when those taxes shall become due, the Municipal Council shall cause to be presented to that person a bill for the sum claimed as due.

The Section then specifies what the bill should contain and it also provides that if the sum for which such a bill has been tendered is not paid to the Municipal Office within the time referred to in that Section, the Municipal Council may cause to be served upon the person to whom such bill has been presented a notice of demand in the form of schedule X, or to the like effect.

35. The argument addressed on behalf of the petitioner was that if a notice of demand, under the provisions of Sub-section (3) of Section 92 of the Act has to be issued by the Municipal Council in the form prescribed in schedule X to the Act, the special notice which could be issued under the provisions of clause (d) of Sub-section (2) of Section 14 of the Act should also he issued by the Municipal Council or caused to be issued by it.

36. It seems to me that neither the provisions of Section 92 nor the form which is referred to in schedule X would be of any assistance to Mr. Krishna Murthy in this case. That form is expressly prescribed by that Section. Nor does the fact that it is the Municipal Council that should cause that notice to be served, help Mr. Krishna Murthy very much when it is seen that under the provisions of Section 218 of the Act it is the executive officer of the Municipal Council that is empowered to issue the notices under Section 92 of the Act.

37. The question raised in this case must depend on the construction of Clause (d) of Sub-section (2) of Section 14 of the Act and no assistance can be derived from the other provisions contained in the Act which make provisions in regard to other specified matters. As can be seen from the provisions of that clause it is clear that the notice required to be issued before a Municipal Councillor loses his seat in the Municipal Council, is a special notice.

That clause does not state by whom the notice has to be issued and in what manner. That being so, if the Act provides that a special notice must be issued calling upon the defaulter to pay the arrears of taxes due from him, it means that unless the Act contains indications or provisions to the contrary, the notice must be issued by the corporate body which, in this case, was the Municipal Council.

That, in my opinion, is the correct construction to be placed on the language of Clause (d) of Sub-section (2) of Section 14 of the Act. Ordinarily, there being no other provision in the Act, it was the Municipal Council that should have issued the notice referred to in that clause.

38. But it is contended by Mr. Chandrasekhar the learned Government Pleader that although it was normally the function of the Municipal Council to issue the notice referred to in that clause, and the Municipal Council was hound to issue that notice before the petitioner could be disabled from continuing as a Municipal Councillor, that notice, under the provisions of the Town Municipalities Act, can be issued by the President.

In support of that contention Mr. Chandrasekhar relies, as I have already mentioned, on the provisions of Clause (d) of Sub-section (1) of Section 24 of the Act. The soundness or otherwise of the contention urged by Mr. Chandrasekhar depends on whether the issue of the notice referred to in Clause (d) of Sub-section (2) of Section 14 of the Act, is the performance of an executive function or not. If it is a performance of an executive function, Mr. Chandrasekhar's contention has to be upheld. If it is not the performance of an executive function, this petition must succeed.

39. The question therefore is whether the issue of a notice required to be issued by the Municipal Council is a mere executive function or a function of some other character. Mr. Chandrasekhar's argument is that if it is a function by the performance of which the provisions of the Act arc implemented and the general business of the Municipal Council is administered, it is an executive function.

He contends, that as it appears from the general scheme of the Town Municipalities Act, there are various functions performed by a Town Municipal Council. A Town Municipal Council has the power to make subordinate legislation under the provisions of chapter VII of the Act. It is under that chapter that the Municipal Council imposes taxes and the other public charges which it could levy under the provisions of that Act.

It is the Municipal Council that has the power to impose a fine under Clause (z) of Sub-section (1) of Section 48 of the Act. It is then again the Municipal Council that has to adopt the bye-laws as framed by the Government and make amendments to them. Those powers are undoubtedly powers of subordinate legislation which no one can suggest can properly be delegated by the Municipal Council to any of its agents.

40. There arc also other provisions contained in the Act which confer on the Municipal Council a variety of powers. Chapter VI refers to the obligatory and discretionary powers to be exercised by a Municipal Council. There are some matters in which the Municipal Council .has to act as a corporate body and take collective decisions.

These are powers which Mr. Chandrasekhar does not dispute cannot be delegated by the Municipal Council to the President or any one of its officers. But if the power to issue a notice under Clause (d) of Sub-section (2) of Section 14 of the Act is not one of such powers, he contends that the power to issue such a notice is the power to perform a mere executive function and was, therefore, statutorily delegated under 'the provisions of Section 24 of the Act.

41. What an executive function is and what executive power means is a matter on which there can be no inflexible or positive rule. It cannot be defined by any neat combination of words. What js or is not ah executive power in a given case must depend upon the particular statute and the context in which such power is referred to.

42. It appears to me that the definition of executive power such as was given by the political scientists in olden times can no longer be regarded as a satisfactory definition of such power under modern conditions. The content of that power must be defined and measured by an examination of the provisions of the statute conferring that power.

43. But as a definition, which could be acceptable in this ease having regard to the provisions of the Town Municipalities Act, is, as Mr. Chandrasekhar suggested, that executive power is the power to administer the provisions of the Town Municipalities Act and to carry on the general business of the Municipal Council. Now in this case the notice which could be issued under Clause (d) of Sub-section (2) of Section 14 of the Act is, according to Mr. Chandrasekhar a special notice issued in the performance of a merely executive function.

His contention is that the taxes payable by a defaulting Municipal Councillor having been levied by the Municipal Council under the provisions of chapter VI of the Act which contains statutory provisions in regard to the recovery of Municipal claims and the Act itself making express provision for the disability of a council or from continuing as a councillor by reason of the failure on his part to pay up the arrears, to taxes due from him, within the prescribed time after the service o! the notice referred to in Section 14 of the Act, there was nothing more to be done by the Municipal Council by way of deliberation or as a corporate act for the issue of the notice statutorily provided for by that Section.

44. It appears to me that this contention of Mr. Chandrasekhar has to be upheld. The notice referred to in Clause (d) of Sub-section (2) of Section 14 of the Act is, to my mind, not a matter which was required to be done by the corporate body of the Town Municipal Council. It is clear from Section 218 of the Act, that many of the notices which are required to be issued under the provisions of the Town Municipalities Act are all notices which an executive officer may issue. Any deliberation by the Municipal Council as a corporate body before the issue of the required notice under Clause (d) of Sub-section (2) of Section 14 of the Act is, in my opinion, hardly necessary.

45. Such corporate action on the part of the Municipal Council is clearly necessary when the Municipal Council either exercises its power as a delegatee in regard to subordinate legislation or when it is under the express provisions of the Act required to deliberate and act before it could take action in regard to any particular matter.

46. It is clear that the imposition of taxes and other public charges which a Municipal council might impose under the provisions of chapter VII of the Act has to be done by the Municipal Council as a corporate body. When the Municipal Council has to adopt a bye-law or to make amendments to it or has to adopt a rule or make amendments to it, it could act only as a corporate body.

When the Municipal Council makes a recommendation under Sub-section (2) of Section 38 of the Act to the Government in the case of a grant referred to in that Sub-Section, it has to act as a corporate body. When a contract has to be executed on behalf of the Municipal Council it has again to and must conform to the requirements of Sub-Section (7) of Section 38 of the Act.

47. I have referred to the above provisions in order to illustrate the difference between an act which has to be performed by a Municipal Council as expressly provided by the statute itself as a corporate body and cases in which the act to be performed by a Municipal Council is a mere executive function statutorily delegated under Section 24 of the Act.

48. It is, I think, quite clear that an exhaustive enumeration of the executive functions which might be performed by or on behalf of the Municipal Council is unattainable. It is extremely difficult to make an exhaustive classification in that way.

49. If, as I have mentioned, the test is that in order that it should not be an executive function capable of being delegated to one of its officers that function should be a function which the Municipal council is bound to perform as a corporate body, the question is whether in this case the issue of a notice under Clause (d) of Sub-section (2) of Section 14 of the Act, having regard to the provisions of the Act, is an act which the Municipal Council should perform as a corporate act.

50. It is, I think difficult to hold that the issue of the notice should be a corporate act. There is no reason why the Municipal council should perform any act of deliberation in order to decide whether such a notice should or should not be issued. If a councillor has incurred the disability by reason of his being in arrears in regard to the taxes payable by him to the Municipal Council, it is, I think unreasonable to suggest that the Municipal Council could in any particular instance decide that notwithstanding the fact that he is in such arrears, no notice should be issued to him under the provisions of Clause (d) of Sub-Section (2) of Section 14 of the Act. The Act, in my opinion, statutorily provides that a councillor who is a defaulter should no longer continue to be a councillor and as very rightly contended by Mr. Chandrasekhar, the provisions of Clause (d) of the Section are intended only to provide an opportunity to that defaulting councillor to pay up the arrears due by him within the time specified in that clause.

That that notice should be issued by the Municipal Council after having decided to issue that notice in a meeting called for that purpose or in any other way is, in my opinion, a contention which cannot stand scrutiny.

The policy of the Act is not that it should be left to the choice of the Municipal Council to issue the notice or to refrain from issuing that notice. The issue of the notice being made necessary for the purpose I have mentioned, is, it is clear, a mere executive function. This conclusion derives support from the fact that nowhere is it prescribed by the Act that that notice should be issued by the Municipal Council only after it is satisfied as it is provided an some other matters that such a notice should be issued.

51. The test to be applied in a case of this kind is found clearly summed up by Dillen in his book on Municipal Corporations, Vol. I, page 460. Under the heading 'Public Powers and Trusts incapable of Delegation', this is what he says:

'The principle is a plain one, that the public powers or trusts devolved by law or charter upon the council or governing body, to he exercised by it when and in such manner as it shall judge best, cannot be delegated to others. This principle, its scope and limitation, is best shown by examples of its application to actual cases. Thus, where, by charter or statute, local improvements, to be assessed upon the adjacent property owners, are to be constructed in such manner as the common council shall prescribe by ordinance, it is not competent for the council to pass an ordinance delegating or leaving to any officer or committee of the corporation, the power to determine the mode, manner, or plan of the improvement. Such an ordinance is void, since powers of this kind must, as above shown, be exercised in strict conformity with the charter or incorporating act.'

52. Again on page 462 the learned Author says--

'so, where a power--for example, the power to issue licenses is granted by law, or by an ordinance duly passed, to the mayor and aldermen, they are constituted to act as one deliberative body, to the end that they may assist each other by their united wisdom and experience and the result of their conference be the ground of their determination; where this is the case the board of aldermen cannot, even by a vote, delegate the power to the mayor alone. But the principle that the exercise of Municipal powers or discretion cannot be delegated does not prevent a corporation from appointing agents and empowering them to make contracts, or from appointing committees and investing them with duties of a ministerial or administrative character.'

53. It is, I think, very clear that the issue of a notice under Clause (d) of Sub-Section (2) of Section 14 is not by the provisions of the Act required to be done by the Municipal Council which has to act as one deliberative body in that regard. It is hardly a matter in which all the councillors should assist each other by their united wisdom and experience or that the result of their conference should be the ground for their determination to issue such notice. That being so, it is, I think plain that the issue of a notice under that clause is a mere executive function.

54. The decision of the Full Bench of the Chief Court of Mysore in 19 Mys CCR 235 related to a similar question. The question there was whether the President of a Municipal Council was under the provisions of the Mysore Municipal Regulation of 1906, competent to direct a prosecution under Sub-section (1) of Section 161 of the Act. That Section was as follows:

'161. (I) The Municipal Council may direct any prosecution for any public nuisance whatever, and may order proceedings to be taken for the recovery of any penalties, and for the punishment of any persons of tending against the provisions of this Regulation, or of any by-law thereunder, and may order the expenses of such prosecutions or other proceedings to be paid out of the Municipal fund.'

In that case the prosecution had been directed by the President of the Town Municipal Council. It was contended before the Full Bench of the Chief Court that that President had no power to direct such a prosecution. In reply to that argument it was contended on behalf of the Municipal Council that that power to direct a prosecution had been delegated to the President under the provisions of Section 24 of that Regulation which corresponds to Section 24 of the Town Municipalities Act under which this case arises.

Chandrasekhara Aiyar J. in his order of reference to the Full Bench found no difficulty in coming to the conclusion that the direction of a prosecution under Sub-section (1) of Section 161 of the Regulation, although under the provisions of that Section, had to be made by the Municipal Council, was an executive function which the President could perform by virtue of the statutory delegation made by Section 24 of the Regulation. On page 246 of the order of reference, the learned Judge said this:

'The power to direct a prosecution or to order proceedings to be taken for the punishment of Municipal offences is clearly an executive function, and as such lies within the scope of the powers of the President, who may also depute one of the Vice-Presidents to exercise it under Section 25.'

Wallace J. who differed from Chandrasekhara Aiyar J. on the Question as to whether the prosecution had been validly initiated, did not express a different view on that question. He did not entertain any doubt as to whether the direction of a prosecution under that Section was or was not an executive function.

He did not take a view different from the one that was taken by Chandrasekhara Aiyar J. The doubt that he felt was whether the President of a Municipal Council had the power to direct a prosecution where his powers were not specifically defined or extended. His view was that his powers were limited to the performance of such executive functions inherent in the council which the council will permit him to exercise.

55. When the reference was heard by the Full Bench of that Court, it was conceded on behalf of the petitioner who was prosecuted in that case that the lunation of directing a prosecution was an executive function. On page 252 of their opinion, this is what the learned Judges said:

'By Section 24(b) the President is empowered to perform the executive function which may be performed by the Council--and the function of directing a prosecution, it is now conceded for the purposes of this case, is one of them--subject to such rules as are in force at the time; and that seems naturally to mean that in the performance of executive functions on behalf of the Council he must have regard to, and is bound by rules which may be in force, but if there are no rules, then his power is not restricted. This we think is the correct construction of the Section.'

I have no doubt in my mind that the same principle must be extended to the issue of a notice which is provided for by Clause (d) of Sub-Section (2) of Section 14 of the Act,

56. That Section does not provide as for example, Sections 120, 166 and 178 provide that the Municipal Council could perform the Acts referred to in those Sections only after it had been satisfied in its mind that those acts were necessary. A similar provision is not contained in Clause (d) of Sub-section (2) of Section 14 of the Act. It being therefore dear that the Act not requiring the Municipal Council to be satisfied that a notice should issue under Clause (d) of Sub-section (2) of Section 14, there can be no difficulty in coming to the conclusion that the issue of that notice was a mere executive function.

57. Mr. Krishna Murthy, in support of his contention that this could not be an executive function, relied on a decision of the High Court of the former State of Mysore in Abdul Razak v. Sanitary Inspector, 17 Mys LJ 81. In that case Shankaranarayana Rao J. was of the view that the power vested in a Municipal Council under Section 158(1) of the Mysore Town Municipalities Act, 1933, Act VIII of 1933, should be exercised only by the Municipal Council unless that power was legally delegated to the President or any other officer of the Council. He was of the view that the power of issuing a notice under that Section was not a mere executive act of the kind mentioned in Section 24(d) of that Act.

58. It is clear that that decision can he of no assistance to Mr. Krishna Murthy. That was a case where the impugned notice was a notice issued under Section 158 of the Mysore Town Municipalities Act of 1933. That Section provided that if it was shown to the satisfaction of the Municipal Council that any building or place used for the purposes enumerated in that Section, is or by reason of such use to be a nuisance to the neighbourhood, the Municipal Council may by written notice direct the person to discontinue such use or to use it in some other manner as the Municipal Council prescribes.

59. It is therefore clear that the impugned notice in that case was a notice which the Municipal Council had to issue after it was shown to the satisfaction of the Municipal Council that such notice was necessary. It was therefore clearly a case where the deliberation of the Municipal Council as a corporate body was made a condition precedent to tho issue of that notice unlike the issue of a notice under clause (d) of Sub-Section (2) of Section 14 of the Act.

60. Mr. Krishna Murthy next contended that since the notice required to be issued in this case is a special notice as the Act provides, the President could not without the authority of the Municipal Council issue it. It is difficult to understand why the mere fact that that notice is described as a special notice in Section 14 of the Act would necessitate a special authority by the Municipal Council authorising the President to issue such notice. In my opinion, the notice issued by the President in this case was good and valid notice.

61. That being so, the impugned order made by the Government was fully within its competence. This writ petition, therefore, fails and must be dismissed. The petitioner in this writ petition must pay the costs of Respondent T. (Advocate's fee Rs. 100/-).

Iqbal Hussain, J.

62. I agree.

63. Petition dismissed.


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