V.B. Raju, J.
1. The applicant was convicted under Section 392(1)(b) read with Section 164(b) of the Bombay Provincial Municipal Corporations Act 1949. In revision it is urged that the notice Ex. 6 issued under Section 164 of the Bombay Provincial Municipal Corporations Act is not signed by the Deputy Health Officer although the Deputy Health Officer was delegated with powers to do so by the Commissioner of the Corporation. The notice however bore the rubber stamp of the Deputy Health Officer. A notice which merely bears a rubber stamp and does not bear signature of the person cannot be said to have been signed by that person. The Learned Counsel for the Corporation relies on Section 2(56) of the General Clauses Act 1897 as amended which defines sign as follows:
'sign' with its grammatical variations and cognate expressions shall with reference to a person who is unable to write his name include mark with its grammatical variations and cognate expressions.
The definition extends the meaning of sign only in the case of persons who are unable to write their names and it is not suggested that the Deputy Health Officer is such a person. This section does not therefore help the Corporation. But Section 476 of the Bombay Provincial Municipal Corporation Act 1949 which will hereinafter be referred to as the Act reads as follows:
(1) Every licence written permission notice bill schedule summons or other document required by this Act or by any rule regulation or by-law to bear the signature of the Commissioner or of any municipal officer shall be deemed to be properly signed if it bears a facsimile of the signature of the Commissioner or of such municipal officer as the case may be stamped thereupon.
In view of the section the stamp of the facsimile of the signature of the Deputy Health Officer amounts to his signature. The next point urged is that neither the Commissioner nor the Deputy Health Officer has formed an opinion as required under Section 164 of the Act reads as follows:
Where any premises are in the opinion of Commissioner without sufficient means of effectual drainage and a municipal drain or some place legally set apart for the discharge is situated at a distance not exceeding one hundred feet from some part of the said premises the Commissioner may by written notice require the owner or occupier of the said premises.
2. It is contended that neither the Commissioner non the Deputy Health Officer has formed an opinion that the premises are without sufficient means of effectual drainage. To this it is answered by the Learned Counsel for the Corporation that powers have been delegated by the Commissioner. Under Section 69 of the Act subject to certain restrictions any of the powers duties or functions conferred or imposed upon or vested in the Commissioner by or under any other provision of the Act may be exercised performed or discharged by any municipal officer whom the Commissioner may select by an order in writing on this behalf. Reliance is also placed on Officer Order No. 233 of the Municipal Commissioner Ahmedabad dated 31 which reads as follows:
In supercesion of all previous office orders in respect of delegation of power duties and functions to the Dy. Health Officers (including Dy. Health Officer Food and Licence Branch) I.M.D. Rajpal I.A.S. Municipal Commissioner for the City of Ahmedabad hereby delegate under Section 69(1) of the B.P.M.C. Act 1949 subject to my general control the powers duties and functions as per schedule attached herewith and signed by me to the Dy. Health Officers of the Municipal Corporation.
The schedule attached to that Order so far as relevant reads as under:
(2) Power to enforce drainage of undrained premises situated within 100 ft. from municipal drain by written notice requiring the owner or occupier of such premises:
(a) to make a drain of such material size and description and laid at such level and according to such alignment and with such fall and outlet as may appear necessary emptying into such municipal drain or place aforesaid at suitable point.
(b) to provide and set as all such applicances and fittings as may appear necessary for the purpose of gathering and receiving the drainage from and conveying the same off the premises and of effectually flushing such drain and every fixture connected therewith.
(c) to remove any existing drain or other applicance or thing used or intended to be used for drainage which is injurious to health.
(d) to provide a closed drain in substitution of an open drain or to provide such other applicance or thing either newly or in substitution of any existing applicance or thing or to provide both a closes drain and such other applicance or thing in substitution of the existing open drain and other applicance or thing which is or which is likely to be injurious to health.
(e) to provide and to set up all such applicances and fittings as ma appear to be necessary for the purpose of gathering and receiving the waste water from floors and gallaries of buildings when they are washed and conveying the same through spouts by down take pipes so as to prevent such waste water from discharging directly on streets or inside any lower portion of the premises.
3. Under Section 164 of the Act the Commissioner is vested with certain powers namely the power to give a notice to enforce drainage of undrained premises. But this power is subject to the requirement that the premises are in the opinion of the Commissioner without sufficient means of effectual drainage. The section therefore vests the power of giving a notice in the Commissioner only if in his opinion the premises are without sufficient means of effectual drainage. The function of forming an opinion that the premises are without sufficient means of effectual drainage is also vested in the Commissioner. The section deals with the functions of a Commissioner to form an opinion as well as with his powers to issue a notice. If we look at the Schedule accompanying Office Order No. 233 that only refers to the powers of the Commissioner to give a notice and not to the functions of the Commissioner of forming an opinion that the premises are without sufficient means of effectual drainage. It is true that in Office Order No. 233 reference is to the powers duties and functions while in the Schedule attached thereto there is no mention of the functions of the Commissioner. It only refers to the powers of a Commissioner to enforce a drainage of undrained premises situated within 100 feet from municipal drain by a written notice requiring the owner or occupier of such premises to do certain things. By Office Order No. 233 therefore the function of forming an opinion that the premises are without sufficient means of effectual drainage has not been delegated. It is admitted that in this case the Commissioner has not formed an opinion. The notice is therefore bad
4. The revision application is therefore allowed and the conviction and the sentence of the applicant are set aside. Pine if paid should be refunded.