S.H.Sheth:-
(1) The first contention which has been raised by mr. Vakil who appears on behalf of the corporation is that the respective notices issued upon the plaintiffs by the corporation were valid and that the courts below were in error in holding that they were invalid. While holding that the impugned notices were invalid what has weighed with the courts below is that sec. 260 of the said act confers power upon the municipal com - missioner to issue such notices and that the impugned notices were not issued by the municipal commissioner but by so no other officer to whom he had delegated his powers. According to the courts below the power exercisable under sec. 260 of the act was quasi - judicial power and that therefore the municipal commissioner could not delegate it to anyone. It was he and he alone who could exercise that power.
(2) In special civil application no. 662 of 1968 decided on 14th to 27th october 1969 be bhagwati c. J. (as he then was) and vakil j. Sec. 260 of the act came up for construction. It was held in that decision that sec. 260 conferred upon the municipal commissioner quasi - judicial power which he could not delegate to anyone else. Therefore if any notice was issued under section 260 by an officer to whom the municipal commissioner had delegated his quasi - judicial power it was void because the delegation of quasi judicial power by the commissioner itself was void. Sec. 260 was construed by this court after having taken into account see. 69 of the said act. The material part of sec. 260 reads as follows : (1) if the erection of any building or the execution of any such work as is described in sec. 254 is commenced or carried out contrary to the provisions of the rules or by - laws the commissioner unless he deems it necessary to take proceedings in respect of such building or work under sec. 264 shall (a) by written notice require the person who is erecting such building or executing such work or has erected such building or executed such work on or before such day as shall be specified in such notice by a statement in writing subscirbed by him or by an agent duly authorised by him in that behalf and addressed to the commis - sioner to show sufficient cause why such building or work shall not be removed altered or pulled down sec. 69 before it was amended by gujarat act 5 of 1970 provided as follows :
Subject to the provisions of sub - secs. (2) and (3) any of the powers duties or functions conferred or imposed upon or vested in the commissioner or the transport manager by or under any of the provisions of this act may be exercised performed or discharged under the control of the commissioner or the transport manager as the case may be and subject to his revision and to such conditions and limita - tions if any as may be prescribed by rules or as he shall think fit to prescribe in a manner not inconsistent with the provisions of this act or rules by any municipal officer whom the commissioner or the transport manager generally or specially empowers by order in writing in this behalf; and to the extent to which any municipal officer is so empowered the word commissioner and the words transport manager occurring in any provision in this act shall be deemed to include such officer.
It is not necessary to reproduce the remaining sub - sections of sec. 69 for the purpose of the present cases. The view which this court expressed in special civil application no. 662 of 1958 was based upon the construction of sec. 260 and sec. 69 as reproduced above. After this court expressed that view in special civil application no. 662 of 1968 sub - sec. (1) of sec. 69 was amended and after the words powers duties or functions the following words were inserted : including powers duties or functions of a judicial or quasi judicial nature. The amending act further provided that the aforesaid amendment shall be and shall be deemed always to have been inserted. The second amendment which was made by gujarat act no. 5 of 1970 to sub - sec. (1) of sec. 69 inserted a proviso to it. It reads as follows :
Provided that nothing in this sub - section shall be deemed to empower (i) the commissioner or the transport manager to exercise control over or (ii) the state government the corporation the commissioner or the transport manager to prescribe any conditions or limitations in regard to the exercise performance or discharge of powers duties or functions of a judicial or quasi - judicial nature by a municipal officer under this sub - section.
The amending act further provided that the above - quoted proviso to sub - sec. (1) of sec. 69 which was inserted by it shall be and shall be deemed always to have been added to sub - sec. (1) of sec. 69. The language employed by the amending act clearly shows that two amendments made to sub - sec. (1) of sec. 69 have been given retrospective effect from the date on which the bombay provincial municipal corporations act 1949 came into force. That in our opinion is the correct connotation and import of the amending act when the legislature in express terms has said that the two amendments made to sub - sec. (1) of sec. 69 shall be and shall be deemed always to have been made. Therefore though the impugned notices were served upon the plaintiff as early as in 1959 and in any case prior to gujarat act no. 5 of 1970 came into force we have got to test their validity not in light of sec. 69 as it had been in force in 1965 but in light of the amended sub - sec. (1) of sec. 69 which must be held by us to have been inserted right from the date on which the bombay provincial municipal corporations act 1949 came into force. In view of the retrospective character which has been given to the aforesaid two amendments the only view which we can take is that the validity of the impugned notices must be examined in light of the amended sub - sec. (1) of sec. 69 of the said act.
(3) Now when we proceed to examine the validity of the impugned notices it is clear that by retrospective amendments made to sub - sec (1) of sec. 69 the municipal commissioner inter alia has been authorised to delegate even his judicial and quasijudicial powers duties and functions to anyone. If therefore the impugned notices were issued in the instant case not by the commissioner but by his delegate they must be held to be valid. The learned single judges have however recorded a contrary conclusion inspite of the amendments made to sub - sec. (1) of sec 69 because they have taken into account the terms of the proviso retrospectively added to sub - sec. (1) of sec. 69 and tested on its anvil office order no. 849 under which the municipal commissioner has delegated his power under sec. 260 to the estate and city improvement officer and which reserves for the commissioner the control over the exercise of such delegate i power. While the municipal commissioner cannot by virtue of that proviso exercise control over the exercise performance or discharge of delegated powers duties and functions of a judicial or quasi judicial nature by a municipal officer office order no. 849 reserves for the commissioner such control now reference to this proviso was unnecessary because the stage when the municipal commissioner may exercise control over the exercise. Performance and discharge of delegated powers duties and functions of a judicial or quasi - judicial nature by a municipal officer has not yet arisen. This question would really arise only after a municipal officer has exercised delegated powers duties or functions of a judicial or quasi - judicial nature and if the municipal commissioner seeks to revise or review that action. It has however been contended on behalf of the plaintiffs that though the impugned notices may not suffer from any fatality on account of the amendments made to sub - sec. (1) of sec. 69 they are invalid because office order no. 849 under which the municipal commissioner has delegated his power to subordinate municipal officer is in violation of amended sub - sec. (1) of sec. 69. In other words the contention which has been raised is that after - sub - sec. (1) of sec. 69 was amended the municipal commissioner ought to have issued a fresh order of delegation of his power in conformity with the provisions of amended sub - sec. (1) of sec. 69. In order to examine this contention it is necessary to reproduce office order no. 849 which has been exhibited in these cases. It was issued by the municipal commissioner on 20th may 1964. It reads as follows:
In supersession of all previous office orders in respect of delegation of powers duties and functions made under sec. 69 (1) of the b. P. M. C. Act 1949 to the state and city improvement officer and other subordinate officers of the estate department municipal commissioner municipal corporation of the city of ahmedabad hereby delegates under sec. 69 (1) of the b. P. M. C. Act 1949 subject to his revision and general control the powers duties and functions as per schedule appended hereto and signed by him to estate and city improvement officer and other subordinate officers of the estate department as shown against their respective designations.
To that order a schedule is attached. The schedule contains delegation of power duties and functions by the municipal commissioner to subordinate municipal officers in a large number of cases. Suffice it to say that so far as the power of the municipal commissioner under sub - secs. (1) and (2) of sec. 260 is concerned he has delegated to the state and city improvement officer power to take all proceedings inclusive of the notice required to be given under sec. 260 (1) in respect of a building or work commenced or carried out contrary to the provisions of the rules or bye - laws and also to determine all the questions arising in the said proceeding and to take necessary decision in that respect and take action as provided in sec. 260 (2) and also power to do all other necessary acts required to be done to carry out the intendment of sec. 260.
(4) Now the objection which. The learned advocates appearing on behalf of the plaintiffs have taken is that the expression subject to his revision and general control used in office order no. 849 is in conflict with the proviso inserted in sub - sec. (1) of sec. 69 which inter alia provides that the commissioner shall have no control over the exercise performance or discharge of powers duties or functions of a judicial or quasi - judicial nature by a municipal officer. We are unable to accede to this argument raised on behalf of the plaintiffs for two reasons. Firstly office order no. 849 has got to be read in light of amended sub - sec. (1) of sec. 69. If the proviso to sub - sec. (1) of sec. 69 expressly provides that the municipal commissioner shall have no control over the exercise performance or discharge of powers duties or functions of a judicial or quasijudicial nature by a municipal officer the municipal commissioner cannot exercise such control irrespective of what has been stated in office order no. 849. Therefore the words subject to his revision and general control used in office order no. 849 are inapplicable except in cases where a municipal officer subordinate to the municipal commissioner has not exercised performed or discharged powers duties or functions of a judicial or quasi - judicial nature. In our opinion therefore the expression subject to his revision and general control used in office order no. 849 means that the municipal commissioner shall have the power of revision and general control over the exercise performance or discharge of powers duties or functions other than those of a judicial or quasi - judicial nature by a municipal officer. The schedule to office order no. 849 delegates powers of the municipal commissioner not merely in judicial and quasi - judicial matters but also in respect of other matters. Therefore the only view which can be taken is that under office order no. 849 the power of general control and revision reserved to the municipal commissioner is exercisable in those cases which do not fall within the terms of proviso to sub - sec. (1) of sec. 69. Matters which fall under the proviso to sub - sec. (1) of sec. 69 are by virtue of the statutory provision made in that behalf exempted from general control and revision. When we read office order no. 849 in light of the proviso to sub - sec. (1) of sec. 69 thus it becomes very clear that office order no. 849 does not suffer from any infirmity whatsoever. To repeat it only means that out of several matters in respect of which the municipal commissioner has delegated his powers duties and functions to subordinate municipal officers the power of revision and general control has been reserved by him in respect of those matters which are not covered or which do not fall under the terms of proviso to sub - sec. (1) of sec. 69 and that by virtue of proviso to sub - sec. (1) of sec. 69 his power of revision and general control has become extinct in respect of matters which fall under that proviso. In our opinion the learned judges were in error in taking the view that the impugned notices were void and invalid because they could not have been issued by the municipal officer to whom the municipal commissioner has delegated his power under sec. 69 (1) of the bombay provincial municipal corporations act 1949 and office order no. 849.
(5) Mr. Pandya has further tried to argue that in any case the impugned notice served upon his client was bad in law because as contemplated by sub - sec. (1) of sec. 479 his client was not given a reasonable time for carrying out the requisition contained therein. What is a reasonable time depends upon the facts and circum - stances of each case. Mr. Pandya has tried to argue that ten days time which was granted to his client could not be said to be reasonable because within that period of time his client was required to remove the motor vehicle weighing machine foundations of which were laid in the soil. In the facts and circumstances of this case we cannot uphold this argument for two reasons. Mr. Pandya has not been able to show that prejudice has been caused to his client and how he has been prejudiced by the grant of time of ten days to him. Secondly the impugned notice was served upon his client as early as in 1965. We are unable to uphold the argument based upon reasonable time eleven years after the impugned notice was served upon his client. Thirdly we reject his argument because even now in absence of any evidence to show the situation otherwise we are inclined to direct that no action in pursuance of the notice issued upon his client shall be taken until 31 - 10 - 1976. The question relating to were grant or refusal of reasonable time assumes significance if the person who has been refused reasonable time is prejudiced. The concept of reasonable time does not have any significance in any other context. In view of the fact that since the impugned notice was issued to mr. Pandyas client eleven years ago and since we are now directing that no action shall be taken against him until 31st october 1976 in our opinion there is no prejudice caused to him and the impugned notice cannot be struck down on the ground that it gave no reasonable time to his client. We have been told that his client is likely to apply to the municipal corporation for regularisation of the construction which he has put up on the land in question. If he is able to convince the municipal authorities to regularise the construction then he shall have no difficulty whatsoever because he can retain that construction under the regularisation or ex post facto permission granted by the municipal corporation. It may be noted that this question was canvassed before the learned single judge by mr. Pandya on behalf of his client. However since the learned single judge upheld the decree passed by the learned trial judge against the corporation he did not deal with this question. It is under these circumstances that we have examined this question and recorded our conclusion.
(6) So far as letters patent appeal no. 188 of 1974 is concerned mr. Soni has argued that the plaintiff upon whom notice has been served is not the person who is erecting an unauthorised structure or who has erected an unauthorised structure or who is executing or has executed any such work. According to him therefore the impugned notice could not have been served upon the plaintiff. It is not in dispute before us that the plaintiff in that suit has not constructed or executed the work in question. The question therefore which has arisen for our consideration is whether within the meaning of sub - sec. (1) of sec. 260 a person who text not constructed an unauthorised structure and who is in occupation there of can be called upon to demolish or remove it and whether the provisions of sub - sec. (1) of sec. 260 can be so construed as to reach him. In our opinion the language of sub - sec. (1) of sec. 260 is clear enough and does not warrant the exercise of power by the municipal corporation against any person who is not constructing or who has not constructed or who is not executing or who has not executed any work contemplated by sub - sec. (1) of sec. 260. The language used by clause (a) of sub - sec. (1) of sec. 260 is quite express and clear. It inter alia requires the person who is erecting such building or executing such work or has erected such - building or executed such work therefore the emphasis has been laid by clause (a) of sub - sec. (1) of see. 260 upon the person who is executing such work or who has executed such work or who is erecting such building or who has erected such building.
(7) In order to determine whether sec. 260 contemplates only the person who is erecting such building or executing such work or lias erected such building or executed such work or his successor 3150 it is necessary to make a brief reference to certain other sections. Secs. 257 to 263 deal with the subject of commencement of work. Sec. 260 empowers the municipal commissioner to issue a written notice not only to a person who is erecting or who has erected such building or who is executing or who has executed such work but also to its owner if the owner is different from one who is erecting or who has erected such building or who is executing or who has executed such work. Sec. 264 which deals with removal of dangerous structures provides that the written notice to pull down a dangerous structure can be served upon an owner or occupier of such structure. It is therefore clear that wherever the legislature thought of empowering the municipal commissioner to serve upon any other person the notice it has done so. In case of see. 260 the legislature has confined the exercise of power thereunder by the municipal commissioner or his delegate to the person who is erecting or has erected such building or who is executing or has executed such work. Secondly it is difficult for us to construe sub - sec. (1) of sec. 260 in such a manner as to include any person other than one described therein because in ease of any other person who is occupying such premises his rights will have to be adjudicated upon before he is called upon to demolish the structure which he occupies. If any person occupying such a structure is subjected to the provisions of sub - see. (1) of sec. 260 it will spell out ruinous consequences in many eases. For example a person constructs an unauthorised structure which remains unnoticed by the municipal corporation for a period of 50 years during which it passes from hand to hand. After such a period of 50 years the original person who constructed such a structure might not be available and such a structure might be with a person after a series of transactions who does not know the original person who constructed such a structure. Can we then say that the municipal commissioner has the summary power of calling upon such a transferee after 50 years to demolish his structure ? we do not think the ambit of sub - sec. (1) of sec. 260 is so wide as to cover transferees after transferees from the original person who constructed the unauthorised structure. If such a transferee after a long lapse of time is to be called upon to demolish his structure he could only be called upon after his contentions have been dealt with judicially and his rights have been adjudicated upon. In our opinion therefore the impugned notice served upon the plaintiff in letters patent appeal no. 188 of 1974 was invalid because the plaintiff did not construct the structure in question. We are therefore inclined to uphold the contention which mr. Soni has raised in that letters patent appeal.
(8) In reply mr. Vakil has raised another contention which according to him adversely affects the maintainability of the suit out of which that letters patent appeal arises. According to him it was the municipal commissioner or his delegate who had issued the notice and the municipal commissioner is a statutory officer. According to him the plaintiff could have filed the suit only against the statutory officer - the municipal commissioner - and not against the municipal corporation. In support of his contention he has relied upon the decision of a learned single judge of the calcutta high court in the corporation of calcutta v. The building tribunal and others a. I. R. 1972 calcutta 318. The principle which has been laid down upon the construction of the relevant provisions of the calcutta municipal act 1951 is that since the order of demolition in that case had been passed by the municipal commissioner it could not be struck down in absence of the municipal commissioner as a party to the suit even though the corporation was a party. We are unable to accept the principle laid down in the aforesaid decision for two reasons. Though the municipal commissioner is a statutory officer of the municipal corporation he exercises the powers assigned to him for the purpose and benefit of the municipal corporation and not for his own benefit or purpose. Secondly the municipal commissioner who is the statutory chief executive of the municipal corporation is the agent of the municipal corporation and is not independent of it. Thirdly the power which the municipal commissioner exercises under sec. 260 is as held by this court in special civil application no. 662 of 1968 a quasijudicial power. He exercises such a quasi - judicial power between the person who has constructed an unauthorised structure on one hand and the municipal corporation on the other hand. Therefore since he acts as a judicial mediator between the corporation and the person affected it is not he who is required to be made a party but the corporation whose quasi - judicial officer he is. The contention which mr. Vakil has therefore raised is without any substance and is rejected.
(9) In the result we allow letters patent appeals nos. 178 of 1974 186 of 1974 and 187 of 1974 set aside the decrees passed by the courts below and dismiss the plaintiffs suits subject to the direction that against the plaintiff in the suit out of which letters patent appeal no. 178 of 1974 arises no action shall be taken in pursuance of the impugned notice until 31st october 1976.
(10) In view of the findings which we have recorded letters patent appeal no. 188 of 1974 fails and is dismissed.
(11) In all the appeals we direct that there shall be no order as to costs in the circumstances of the case. Orders accordingly
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