Gopilal v. Municipal Board, Bhopal — 1955 DIGILAW 128 (MP)

ORDER : This is a petition under Art. 226 of the Constitution of India, by Gopilal and Shankerlal, against the Municipal Board, Bhopal. In view of the fact that in para 7 of the petition the petitioners had challenged the validity of the Bhopal State Municipalities (Amendment) Act, 1954 (Act X of 1954), and also of the Notification No. 52 dated 31-10-1952, appointing Shri Mohammad Azizur Rahim Khan as one member Board, the notice of the petition was also given to the Government Advocate and he put in his appearance to oppose the petition. 2. The petitioners' case is that they are the citizens of India, ordinarily living in Bhopal and carrying on their tailoring business in Bhopal near the Power House; that Shankerlal, petitioner 2, is the father of Gopilal, petitioner 1, but both of them are separate in business, though sitting on the same premises; that the respondent, Municipal Board of Bhopal claims against petitioner 2 certain arrears of rent in respect of a land leased out to him, a claim which is being disputed by petitioner 2, when, in fact no such arrears are due, that there are no dues or any claim against the petitioner 1; that in forcing payment of the alleged arrears against petitioner 2, the respondent did not take recourse to law by filing in a civil suit or by moving the Collector under S. 263, Bhopal State Municipalities Act, 1916 and instead, took the law into their hands, and on 8-7-1954, through its employees, illegally trespassed into the shop in possession of the petitioner and seized and took away a sewing machine. Sitara with a Paidan of Durkop, costing Rs. Sitara with a Paidan of Durkop, costing Rs. 275/- and belonging to petitioner 1; that the respondent is now threatening the petitioners that they would sell off the above machine to recover the amount alleged as payable and in this connection, served notice under S. 143 of the Act on petitioner 2 that very day, that no notice prior to 8-7-1954 had been served upon any of the petitioners; that S. 143 of the Act was wholly irrelevant to the case, that the seizure of the machine was illegal and without the authority of law and had deprived the petitioners to present any claim or objection before the Collector who was the lawful authority to pass suitable orders for the recovery or otherwise of such dues, on an application to be moved by the respondent; that as a result of the seizure of the machine, a great loss had been caused to petitioner 1 and if sold, it would cause further loss to him; that in spite of a notice served on the respondent by petitioner 1, the machine has not been restored back to the petitioners; that the seizure of the property was further without any authority of law, as there was no lawfully constituted Municipal Board in Bhopal on the date of seizure and that the seizure of the machine was an infringement of the fundamental right of the petitioners guaranteed under Art. 31 of the Constitution of India. The petitioners, therefore prayed that a writ of Mandamus or any other writ or order be issued directing the Municipal Board, Bhopal to restore back the machine to the petitioner and also to refrain from disposing it off itself or through its employees, office-bearers, agents, or servants. Both the petitioners have filed separate affidavits in support of the above allegations. 3. The petition was contested by the respondent viz. the Municipal Board, Bhopal, who filed a written statement on 14-5-1955. The affidavit accompanying thereto was not in the proper form. It was not accepted and when the respondent asked for time to file a proper affidavit, the request was disallowed by my predecessor. Consequently there is only the written statement unaccompanied by any affidavit on the record to indicate the case of the respondent. Of course, the respondent filed certain documents to show that the petition was not maintainable and was one which should not be allowed. 4. Consequently there is only the written statement unaccompanied by any affidavit on the record to indicate the case of the respondent. Of course, the respondent filed certain documents to show that the petition was not maintainable and was one which should not be allowed. 4. The facts as mentioned in the petition have been challenged by the respondent. The case of the respondent is that petitioner 2 had taken a Nazool land measuring 16' x 12', situate on the electric power house road, railway station, Bhopal for temporary use only, on payment of a monthly fee of Rs. 5/- after executing an agreement, Ex. N. 4, dated 1-4-1948, with many conditions, one of which that the monthly fees at the rate of Rs. 5/- would be paid in the Nazool Section of the Board by the 5th of every month, and if the fees were not so paid annas two per rupee would be payable as penalty, that petitioner 2 took possession of the land that very day and executed the Dakhalnama, Ex. N. 5; that he did not pay the fees and at the time of the attachment a sum of Rs. N. 5; that he did not pay the fees and at the time of the attachment a sum of Rs. 135/4/- was due from him towards the arrears of fees including penalty; that the respondent issued a notice of demand No. 283 dated 12-7-1954, but petitioner 2 refused to accept it) on 1-2-1954, and it was subsequently pasted at his house in the presence of two witnesses of the locality; that when petitioner 2 did not deposit the arrears, a warrant of attachment under S. 143, Bhopal Municipalities Act was-issued on 7-3-1954 against petitioner 2, and on 8-7-1954 the sewing machine, Sitara, belonging to petitioner 2 was attached; that immediately petitioner 2 was served with a notice under S. 143(4) of the Act that the machine would be sold if petitioner 2 failed to pay the arrears within 5 days that in his application and statement moved or made before the Superintendent, Nazool Section, of the Municipal Board, petitioner 2, admitted that his sewing machine had been attached and that the arrears of fees were due though he made a request that no penalty may be charged from him, and that the attachment of the machine was in accordance with the law, namely, that it was not necessary for the respondent to take action under S. 233 of the Act or to flip a civil suit for the recovery of the aforementioned amount. It was further mentioned that petitioner 1 had served a notice on the Executive Officer of the Municipal Board on 24-8-1954 but when called upon to produce oral and documentary evidence in support of his claim, he failed to lead such evidence. Certain preliminary objections were also raised by the respondents, namely, that the petitioners had suppressed material facts and had attempted to* mislead the Court, with the result that the extraordinary powers of the Court under Art. 226 of the Constitution should not be exercised in favour of the petitioners; that the petitioners had another adequate remedy available and consequently were not entitled to any prerogative writ; that there-was neither an infringement of any fundamental rights nor of legal rights of the petitioners; and; that the joint petition by the petitioners was not maintainable in law. 5. On 5-10-1955 the petitioners moved an application for clarification of para 7 of the petition. 5. On 5-10-1955 the petitioners moved an application for clarification of para 7 of the petition. This application was opposed by the respondent, and was disallowed, though it was made clear that the points arising out of para 7 would be considered and decided on the material admissible in the present proceeding. 6. From the above it is clear that the present case of the petitioners is that both of them are separate in business; that the attached sewing, machine belongs exclusively to petitioner 1, Gopilal and not to his father Shankerlal, petitioner 2 and that no arrears were due from petitioner 2 Shankerlal. In these circumstances petitioner 2 could have no right to approach this Court for a writ of high prerogative under Art. 226 of the Constitution chiefly because he having no interest in the sewing machine could have no cause of grievance against the attachment. The only person who could claim that his rights had been infringed would be petitioner 1. That petitioner 1 is the son of petitioner 2 will not create any interest or right in petitioner 2, specially when their present case is that both of them are separate in business and the sewing machine belongs exclusively to petitioner 1. The petition, therefore, suffers from the defect of misjoinder of the petitioners. But this defect cannot be deemed to be of such a fatal nature as to entitle the dismissal of the petition on this very ground. 7. However, from the papers on the record it is clear that the sewing machine belongs to Shankerlal, petitioner 2 and not to Gopilal, petitioner 1. After the attachment of the machine, petitioner 2 had moved a few applications before the Municipal Board and also made a statement during; the enquiry. At all these places he himself claimed the sewing machine. The earliest application, of Shankerlal, petitioner 2, is dated 8-7-1954, Ex. N. 6, in which he prayed that his machine may not be auctioned. Similarly in his statement dated 6-8-1954 (Ex. No. 7) he referred to the attached machine as belonging to him. A similar assertion was made in the application dated 6-8-1954, Ex. N. 8 and also in another application with the similar contents, Ex. N. 9. The petitioners appear to have changed their version when petitioner 1 served a notice, Ex. P. 2, upon the Executive Officer of the Municipal Board, Bhopal on 24-8-1954. A similar assertion was made in the application dated 6-8-1954, Ex. N. 8 and also in another application with the similar contents, Ex. N. 9. The petitioners appear to have changed their version when petitioner 1 served a notice, Ex. P. 2, upon the Executive Officer of the Municipal Board, Bhopal on 24-8-1954. In case the sewing machine belonged to petitioner 1 and not to petitioner 2, the latter would have alleged from the very beginning that the attached machine belonged to his son, who was separate in business, and was consequently not liable to attachment and sale for payment of dues said to be payable by petitioner 2. No other inference can be drawn from the above documents except that the attached machine, in fact, does not belong to petitioner 1 but is the property of petitioner 2. In other words, the petitioners intentionally mentioned wrong facts in the petition and when the present allegations are not accepted, it will have to be held that even petitioner 1 had no interest or right in the attached machine and consequently did not have a right to move this Court for a writ under Art. 226 of the Constitution. On this ground the petition would be liable to dismissal on merits. 8. To get over this difficulty it was urged on behalf of the petitioners that this Court should pass a suitable order on taking into consideration, the correct facts, namely, that the sewing machine belonged to petitioner 2 Shankerlal and was not liable to attachment. No party can be allowed to depart from the pleadings and to subsequently I urge that the facts were not such as were mentioned in the petition. Consequently, this contention of the learned Counsel cannot be accepted. However, such an argument will show beyond doubt that the petitioners had intentionally concealed material facts so as to obtain an ex parte order or a rule nisi in their favour and thereby avoid the sale of the machine which was permissible under the provisions of the Bhopal Municipalities Act. Consequently, this contention of the learned Counsel cannot be accepted. However, such an argument will show beyond doubt that the petitioners had intentionally concealed material facts so as to obtain an ex parte order or a rule nisi in their favour and thereby avoid the sale of the machine which was permissible under the provisions of the Bhopal Municipalities Act. When the petitioners do not come to the Court with clean hands, intentionally suppress material facts, knowingly make misleading statements and do not give correct information to the Court and thereby abuse the process of the Court, it becomes a fit case in which the discretionary powers under Art. 226 of the Constitution should not be exercised in favour of such a party. The misleading statements were not only with regard to the ownership of the attached machine but were also made on other points. In para 2 of the petition it was alleged that the business of petitioner 1 was separate from that of his father, petitioner 2. This does not appear probable considering that both the father and the son had been acting together from the beginning to the end in order to avoid the liability to pay the arrears and also to avoid the sale of the sewing machine for realisation of the amount due to the Municipal Board. In para 2, it was alleged that no amount was payable to the Municipal Board by petitioner 2. On the other hand, in his application dated 8-7-1954, Ex. N. 6, Shankerlal petitioner 2, clearly admitted that it was due to the mistake of another person to whom he had transferred the shop that a sum of Rs. 135/- remained unpaid. He also applied that he would have the matter settled on the return of that person and meanwhile his sewing machine may not be sold. Similarly in his statement dated 6-8-1954 Ex. N. 7, petitioner 2 stated that he was willing to pay the amount for which his machine had been attached but he may be excused from the payment of the penalty. The liability was impliedly admitted in the application Ex. N. 2 and N. 9 also. This would, therefore, indicate that the liability of petitioner 2 for payment of the arrears was not in dispute at the time the present petition was moved. The liability was impliedly admitted in the application Ex. N. 2 and N. 9 also. This would, therefore, indicate that the liability of petitioner 2 for payment of the arrears was not in dispute at the time the present petition was moved. But the petitioners in order to obtain a rule nisi mentioned wrong facts in para 3 of the petition. Similarly in para 4 it was wrongly alleged that the sewing machine belonged exclusively to petitioner 1. This has already been commented upon above and must be regarded to be an incorrect statement. Another suppression of fact is on a point which may be said to be of a controversial nature, whether the possession of petitioner 2 was as a lessee or as a licensee. This question will be considered subsequently. 9. The above will show that the petitioners had intentionally misrepresented facts so that they may be successful in postponing the sale of the sewing machine, knowing fully well that the arrears including the penalty were payable by petitioner 2 and that it was for the realisation of this amount of arrears that the respondent had under the law attached the sewing machine prior to its sale, as the arrears were not paid within the period noted in the notice served that very day. A petitioner invoking the extra-ordinary powers of the Court under Art. 226 of the Constitution must come with clean hands and should not suppress any relevant facts from the Court, otherwise the extra-ordinary powers under Art. 226 would be abused by the litigants. It is necessary for the protection of the Courts themselves that they should not exercise their discretion in favour of a party responsible for suppression, misrepresentation or misstatement of facts. As is held above, the petitioners had intentionally suppressed and misstated material facts and consequently disentitled themselves to a writ of Mandamus or any other kind of writ or order under Art. 226 of the Constitution. A similar view was taken in Asiatic Engineering Co. v. Achhru Ram, 1951 All 746 (AIR V 38) (FB) (A). 10. Even on merits, on consideration of the other points raised in the petition it cannot be allowed. The first and most important point for consideration is that if petitioner 2 is in occupation of the land as a lessee or as a licensee. v. Achhru Ram, 1951 All 746 (AIR V 38) (FB) (A). 10. Even on merits, on consideration of the other points raised in the petition it cannot be allowed. The first and most important point for consideration is that if petitioner 2 is in occupation of the land as a lessee or as a licensee. If the transaction amounts to a lease or the status of petitioner 2 was that of a lessee, the Municipal Board could enforce payment only by making an application before the Collector under S. 263, Bhopal Municipalities Act, or by instituting a civil suit, and not by proceeding under S. 265 (i.e. Chapter VI) of the Act by themselves attaching the property of the defaulter. Sections 263 and 265 of the Act run as below :- S. 263(1) Where any sum is due on account of rent from a person in respect of land vested in or entrusted to the Management of the Board, the Board may apply to the Collector to recover any arrears of such rent as if it were in arrear of land revenue. (2) The collector on being satisfied that the sum is due shall proceed to recover it as an arrear of land revenue. S. 265(1) The Board may charge fees to be fixed by bye-law or public auction or by agreement for the use or occupation (otherwise than under a lease) of any immovable property vested in or entrusted to the management of the Board including any public street or place of which it allows the use or occupation, whether by allowing a projection (i.e. Chabutara or Chajja etc.) thereon. 2. Such fees may either be levied along with the fee charged under S. 265 for the sanction, licence or permission or may be recovered in the manner provided by Chapter VI. The application of either of the two Sections depends on whether the agreement for the use or occupation of the immoveable property amounts to a lease or not. If it is a lease, the fees cannot be recovered in the manner provided by Chapter VI, i.e. cannot be realised by the Municipal Board without approaching the Collector under S. 233 of the Act or by filing a civil suit. But if the transaction does not amount to a lease, the Board can proceed under Chapter VI. If it is a lease, the fees cannot be recovered in the manner provided by Chapter VI, i.e. cannot be realised by the Municipal Board without approaching the Collector under S. 233 of the Act or by filing a civil suit. But if the transaction does not amount to a lease, the Board can proceed under Chapter VI. Another difference would be that in the first case the amount payable would in the eye of law be rent, while in the other a fee. 11. The agreement Ex. N. 4 was executed by Shankerlal petitioner 2, only and a perusal thereof will indicate that the contract did not amount to a lease but was a mere licence for which a fee and not rent was payable. If this agreement is read by itself, it will neither be a lease nor a licence. But if it is read along with the order of the chairman dated 26-1-1948, Ex. N. 1, allotting the land to Shankerlal the transaction will amount to a licence. The agreement Ex. N. 4 runs as below :- "I Shankerlal, Tailor son of Laxmichand, resident of Power House Road Bhopal - Whereas I have taken from the Nazool Section of the Municipal Board, Bhopal, a piece of land situate on the Power House Road, Railway Station, Bhopal measuring 12' x 16', for the establishment of a shop for temporary use, on payment of a fee amounting to Rs. 5/- per month therefore, I agree that by the 5th of every month I will myself deposit the contractual fee in the Nazool Section, after getting a receipt, and if I do not deposit the fee by the date, I would deposit a penalty of annas two per rupee. I will not be entitled to keep another person as a sub-tenant on increased rent, nor will I give possession of the land to any other person in any manner. If the Municipal Board required the land at any time for its own requirements or for a Government use, I will give possession to the Municipal Board after vacating the land without any objection or refusal, on receipt of 15 days' notice. The Municipal Board will not be bound to indicate the nature of the requirement in the notice. If the Municipal Board required the land at any time for its own requirements or for a Government use, I will give possession to the Municipal Board after vacating the land without any objection or refusal, on receipt of 15 days' notice. The Municipal Board will not be bound to indicate the nature of the requirement in the notice. If I myself vacate the land or the Department gets it vacated, in both the conditions I will be bound to give written information of the vacation of the land to the Municipal Board two days prior to the vacation. On the breach of any of the above conditions, the Municipal Board will have the right to have the land vacated from my possession and to recover the damages or losses suffered by it including penalty from me or from my properties. 12. The above will, therefore, show that the land was given for running the business but for temporary use, and the amount payable was referred to as a fee and not rent. Petitioner 2 had used the word 'fee' in his application also. In the order of allotment and. at other places the respondent also used this very word. The wording of the agreement therefore, suggests that it was at the most licence and not a lease. It was, however, urged on behalf of the petitioner that the contract was nothing but a lease as exclusive possession was given to petitioner 2. My attention was also drawn to an important difference between a lease and a licence, namely, that in case of licence there was no transfer of any interest in the property and consequently if the other party was in exclusive possession of the land, its position would be as a lessee and not as a licensee. Some controversy may have existed if petitioner 2 had raised permanent or quasi-permanent structure on the land, suggesting thereby that his possession over the land, was exclusive, and no other person could have the right to occupy or to pass over the land. But the applications Exs. N. 8 and N. and of petitioner 2 clearly indicate that the land was generally lying vacant. In these applications petitioner 2 referred to the transfer of the land to one Shambhoo Dayal Saxena and in this connection mentioned that since June 1952, the plot was lying vacant. But the applications Exs. N. 8 and N. and of petitioner 2 clearly indicate that the land was generally lying vacant. In these applications petitioner 2 referred to the transfer of the land to one Shambhoo Dayal Saxena and in this connection mentioned that since June 1952, the plot was lying vacant. The tailoring shop of the petitioners was thus no shop worth the name, though it may be that they had raised some kind of temporary structure or it can be that they used to run their business on the open land and raised some kind of protection only during the summer and the rains. The position of the petitioners would thus be similar to vegetable sellers etc. who carry on their business on a vacant land without any interest in the land being transferred to them. When the land was used by the petitioners in the above manner, other persons frequenting in the area could easily pass over it; of course, without disturbing the petitioners from running their tailoring business thereon. When there was no transfer of any interest in the land, the agreement would at the most amount to a licence and not to a lease. 13. In this connection a reference may also be made to illustration (b) of S. 56, Indian Easements Act, which contemplates a licence to erect and use temporary grain sheds on land. By erecting temporary sheds the land usually remains in the sole occupation of the licensee and consequently for temporary structures or for temporary use the exclusive possession of the occupant cannot be the safe guide in determining his status. In the present case also the land was given for a temporary use and apparently the petitioner did not erect any kind of structure. Consequently, his status would be of a licensee and not of a lessee, with the result that the Municipal Board could proceed under S. 265, Bhopal Municipalities Act, i.e. could recover the fee in accordance with the provisions of Chapter VI of the Act. 14. Chapter VI, Bhopal Municipalities Act permits the attachment of moveable properties of the defaulter in execution of a warrant of attachment issued under S. 141 of the Act, after a bill as contemplated by S. 138 and a notice of demand under S. 140 of the Act had been served upon the defaulter. 14. Chapter VI, Bhopal Municipalities Act permits the attachment of moveable properties of the defaulter in execution of a warrant of attachment issued under S. 141 of the Act, after a bill as contemplated by S. 138 and a notice of demand under S. 140 of the Act had been served upon the defaulter. It may, however, be noted that the presentation of a bill is not very necessary in view of Sub-S. (2) of S. 138 of the Act. In the petition both the petitioners had alleged that no notice was served upon them prior to the attachment of the sewing machine. The respondent denied this allegation and in his written-statement referred to the notice of demand which was issued but was not personally served upon petitioner 2. The affidavit filed by the respondent has not been admitted. Consequently, this part of its assertion is not supported by a statement on affidavit. Further, the respondent did not prove the notice of demand said to have been served by substituted service. But the procedural defects in attachment would be cured under S. 147, Bhopal Municipalities Act, which clearly provides that no distress or sale made under the Act shall be deemed unlawful on account of any error, defect, or want of form in the bill, notice, warrant of distress, etc. The result, therefore, is that when the attachment, if permissible, was made for an amount due from the defaulter, any defect in the mode of attachment will not be of any help to the person in default. In these circumstances, it will not be proper for this Court to grant any relief to petitioner 2 when it is found that petitioner 2 was in default having not paid the fees and the penalty. 15. It was also urged on behalf of the petitioners that the warrant of attachment was not signed by the Chairman or by any duly authorised person, as required under S. 141(2), Bhopal Municipalities Act, that the sewing machine being a tool of artisan was not attachable under S. 143(2)(b) of the Act, and that as the Municipal Board was not properly constituted, the Executive Officer and other officials of the Board could not function. It was thus contended that the attachment of the sewing machine of petitioner 2 was illegal and without any authority. It was thus contended that the attachment of the sewing machine of petitioner 2 was illegal and without any authority. None of these points were referred to in the petition and, in fact, were taken up for the first time at the time of the hearing or the petition. To allow the petitioners to raise a fresh point, specially one of fact, for the first time during the arguments would be to cause a great prejudice to the respondent, who will not have any opportunity to meet out the latest version either by producing the original documents or by filing an affidavit. In my opinion, therefore, any facts not clearly brought out in the petition or in the affidavits accompanying thereto, should not be allowed to be raised subsequently. A similar view was taken in 'Maganlal Jiva Bhai v. Govt. of Bombay', 1953 Bom. 59 para 4 (AIR V 40) (B); 'Joseph v. Assistant Excise Oommr.', 1953 Tra. C. 146, para 18 (AIR V 40)(C); and Atulya Kumar v. Director of Procurement and Supply', 1953 Cal 548 (558) (AIR V 40) (D). 16. In the petition it was nowhere alleged that the warrant of attachment was signed by a person who was not the chairman or the Executive Officer of the Board, nor was he an officer to whom the Board had delegated its powers by a resolution. Consequently, it will not now be open for the petitioners to say that the warrant of attachment had not been signed by a competent officer. The notice under S. 143(4) of the Bhopal Municipalities Act (Ex. P. 1) does not also indicate the designation, of the person who signed this notice. Thus it cannot be held that the attachment was made under the authority of a person not authorised under the Law. It may also be noted that the warrant of attachment was not produced or proved by either of the parties. Further a defect in attachment would as already indicated above, be cured under S. 147 of the Act. 17. Similarly, it was not pleaded at any stage prior to the arguments that the sewing machine was a tool of artisan and was consequently not liable to attachment under S. 143(2)(b) of the Act. Further a defect in attachment would as already indicated above, be cured under S. 147 of the Act. 17. Similarly, it was not pleaded at any stage prior to the arguments that the sewing machine was a tool of artisan and was consequently not liable to attachment under S. 143(2)(b) of the Act. Had the point been raised in the petition, the respondent could have an opportunity to show by producing documents or by filing affidavit that the petitioners possessed many sewing machines and the present machine was not in use for business purposes. It is also doubtful if all the machines in possession of a tailor can be regarded to be tools or artisan. 18. The third point that the Executive Officer and the other officials of the Municipal Board were functus officio for the time the Municipal Board was not properly constituted does not at all appeal to me. Section 6, Bhopal Municipalities Act runs as below : "In every Municipality, there shall be a Municipal Board and even such Board shall be a body corporate by the name of the Municipal Board of the place by reference to which the Municipality is known, having its members appointed one after the other, a common seal, subject to any restriction or qualification imposed by this or any other enactment, vested with the capacity of suing and being sued in its corporate name, of acquiring, holding and transferring properties moveable and immovable and of entering contracts." This Section will clearly indicate that the Municipal, Board is to have a perpetual succession and will be vested with the capacity of suing and being sued in its corporate name. When the law lays down that there will be perpetual succession, namely, that the members would be appointed or elected one after the other, the Board will be deemed to function even if the Courts of law subsequently give a, decision that the Constitution of the Board at one stage was not proper. Further when the Board created under S. 6 of the Act is vested with the capacity of suing and being sued in its corporate name, it would mean that the officials of the Board can continue to function even if for a certain period the Board was not properly constituted. Further when the Board created under S. 6 of the Act is vested with the capacity of suing and being sued in its corporate name, it would mean that the officials of the Board can continue to function even if for a certain period the Board was not properly constituted. The effect of improper constitution of the Board would be that any resolution passed or bye-law framed by such improperly constituted Board would not be legal and enforceable but the Executive Officer or other officials will be free to exercise such powers as are conferred upon them under the Bhopal Municipalities Act or under any other enactment or under resolution of the Board or an order of the Chairman passed at the time when the Board was properly constituted. The powers and duties of the Executive Officer are laid down in the Bhopal Municipalities Act and in exercise of these powers the Executive Officer could continue to function even if it is presumed for the sake of argument that one member constitution of the Board was not legal. Under S. 40 of the Act the Executive Officer could delegate powers to any employee of the Board, of course with the consent of the Chairman. I am told that prior to the constitution of the one-member Board the Executive Officer had delegated certain powers including the powers under Chapter (sic) of the Act to the Superintendent Nazool Section. To satisfy myself if such a delegation had been made, I called upon the Municipal Board respondent to file a certified copy of the order. A copy has been filed in compliance of my direction which shows that on 8-2-1948 the Executive Officer moved the Chairman for his consent to the delegation of certain powers including the powers under Ss. 138, 140, 141, 144 (1) and (2); and 145 of the Act; the Chairman gave his consent. After the Chairman gave his consent no further orders were passed by the Executive Officer. This would be a mere irregularity. It may, however, be noted that the petitioners never pleaded that the warrant of attachment had been signed by the Superintendent of the Nazool Section or that the attachment and other action was taken under his orders, nor is there any document to load me to such an inference. This would be a mere irregularity. It may, however, be noted that the petitioners never pleaded that the warrant of attachment had been signed by the Superintendent of the Nazool Section or that the attachment and other action was taken under his orders, nor is there any document to load me to such an inference. Consequently, even if the delegation of powers was not properly made in favour of the Superintendent Nazool Section, that would be no ground for granting a writ in favour of the petitioners. 19. In view of the fact that the writ petition is liable, to dismissal on various grounds, it is not necessary to consider the validity of the Bhopal Municipalities (Amendment) Act 1954 (Act X of 1954) and the Notification No. 52 dated 31-10-1952 in the present proceeding. 20. Before the notice of this petition was served upon the Government Advocate the petitioners were called upon to say whether they still pressed para 7 of the petition, keeping in mind that if the petition was dismissed, they would be liable to pay costs not only of the respondent. Municipal Board, Bhopal but also of the Government Advocate, who would be heard on the constitutionality of Act X of 1954. A statement was then made on behalf of the petitioners that they were pressing para 7 of the petition. In these circumstances the petitioners would be liable to pay the costs of both the Municipal Board and of the state of Bhopal, i.e. to the Government Advocate. 21. The writ petition is hereby dismissed with costs. The petitioners are ordered to pay the costs of both the Municipal Board and the State of Bhopal. Counsel's fee payable to the Municipal Board and also to the Government Advocate is fixed at Rs. 75/- if certified, or the amount shown in the certificate, whichever is less. Petition dismissed.