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2025 DIGILAW 161 (MP)

Neha Lokre v. Indore Municipal Corporaiton

2025-03-04

PRANAY VERMA

body2025
ORDER 1. This petition under Article 226 of the Constitution of India has been preferred by the petitioner being aggrieved by the order dated 25.5.2022 (Annexure P/9) passed by respondent No.2, the Building Officer, Municipal Corporation, Indore under the provisions of section 307 of M.P. Municipal Corporation Act, 1956 (hereinafter referred to as the ‘Act, 1956’) read with Rule 7(3)(a) of M.P. Bhoomi Vikas Rules, 2012. 2. A preliminary objection has been raised by learned counsel for the respondents to the effect that the petitioner is having an alternate and efficacious remedy of challenging the impugned order by preferring an appeal under section 403 of the Act, 1956 before the Commissioner hence this petition is not liable to be entertained. Reliance has been placed by him on the decision of this Court in W.P. No.6910/2023 (Sushila Devi Gupta and Others versus State of M.P. and Others) decided on 1.4.2023, W.P. No.10074/2022 (Dilip Vaid and Others versus Indore Municipal Corporation and Another) decided on 9.5.2022, W.A. No.1060/2019 (Prakash Chandra Pandey v. State of M.P. and Others) decided by order dated 13.8.2019 and of the apex Court in Ishwar Singh Vs. State of Rajasthan and Others, 2005 (2) SCC 334 . 3. Learned counsel for the petitioner has, however, submitted that the impugned order has been passed by respondent No.2 as the delegatee of the Commissioner, Municipal Corporation hence appeal to the Commissioner would not be maintainable. Under section 307(1) of the Act, 1956, it is the Commissioner who passes the order and if the same has been passed by respondent No.2, it would be deemed to be an order passed by the Commissioner himself hence appeal would not lie to him against an order passed by his delegatee. Reliance has been placed by him on the decision of the apex Court in Roop Chand v. State of Punjab and Another, AIR 1963 SC 1503 and of the Bombay High Court in Lalji v. State of Maharashtra and Another, 2017 SCC OnLine Bom 7686. 4. I have considered the submissions of the learned counsel for the parties. 5. The impugned order has been passed in exercise of power under section 307 of the Act, 1956. Thereunder the authority conferred the power of taking action is the Commissioner. It has not been provided that the power can be exercised by the Commissioner or any other officer of the Corporation. 5. The impugned order has been passed in exercise of power under section 307 of the Act, 1956. Thereunder the authority conferred the power of taking action is the Commissioner. It has not been provided that the power can be exercised by the Commissioner or any other officer of the Corporation. For ready reference section 307 of the Act, 1956 is reproduced below :-- “307. Power to require removal or alteration of work not in conformity with byelaws or any scheme or any other requirement.-- (1) If any building is erected or re-erected in contravention of any town planning scheme mentioned under section 291 or of any building byelaws made under section 427, the Commissioner without prejudice to his right to take proceedings for a fine in respect of the contravention, may by notice require the owner either to pull down or remove the work or, if he so elects, to effect such alteration therein as may be necessary to make it comply with the said scheme or byelaws. (2) If a building is erected or re-erected (a) without any sanction as required by section 293 (1), or (b) when sanction has been refused, or (c) in contravention of the terms of any sanction granted, or (d) when sanction has lapsed under section 300, the Commissioner, unless he deems it necessary to take proceedings in respect of such building or work under section 294, 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 subscribed by him or by an agent duly authorised by him in that behalf and addressed to the Commissioner, to show sufficient cause why such building or work shall not be removed, altered or pulled down, or (b) shall require the said person on such day and at such time and place as shall be specified in such notice to attend personally or by an agent duly authorised by him in that behalf, and show sufficient cause why such building or work shall not be removed, altered or pulled down. (3) If such person shall fail to show sufficient cause, to the satisfaction of the Commissioner, why such building or work shall not be removed, altered or pulled down, the Commissioner may remove, alter or pull down the building or work and the expenses thereof shall be paid by the person. (4) If the plans are approved] by the Commissioner and the approval is communicated to the person intending to build the house or if the plans are rejected by the Commissioner but no notice of their rejection is given to person intending to build the house within the prescribed period it shall not be open to the Commissioner to give a notice under sub-sections (1) and (2) on the ground that building is erected or re-erected in contravention of any scheme or byelaws or any other requirements under this chapter. (5) *****” 6. Section 69(4) of the Act, 1956 provides that Municipal Officers may be empowered to exercise the powers of Commissioner. The same is as under :-- “69. Functions of several municipal authorities.-- ---------------------- 4) Municipal Officers may be empowered to exercise the powers of Commissioner.-Any of the powers, duties or functions conferred or imposed upon or vested in the Commissioner by this Act may be exercised, performed or discharged under the Commissioner’s control, and subject to his superintendence and , to such conditions and limitations if any as he may think fit to prescribe, by any municipal officer whom the Commissioner may generally or specially empower in writing in this behalf.” 7. The respondents have brought on record an order dated 10.8.2020 (Annexure R/3) whereby in exercise of power under section 69(4) of the Act, 1956 power vested in the Commissioner under the Act, 1956 has been delegated in favor of respondent No.2. It is not disputed between the parties that respondent No.2 has passed the impugned order in capacity of a delegatee of the Commissioner. 8. The objection raised by the respondents that an appeal would lie against the order passed by respondent No.2, before the Commissioner is founded upon section 403(1) of the Act, 1956 which is as under :-- “403. It is not disputed between the parties that respondent No.2 has passed the impugned order in capacity of a delegatee of the Commissioner. 8. The objection raised by the respondents that an appeal would lie against the order passed by respondent No.2, before the Commissioner is founded upon section 403(1) of the Act, 1956 which is as under :-- “403. Appeal against the order of the Commissioner and subordinate officers.-- (1) Any person aggrieved by an order passed by an officer subordinate to the Commissioner, under this Act or under any rule or byelaw made thereunder may appeal to the Commissioner within thirty days of the date on which the order is conveyed to him. (2)******” 9. In the case of Roop Chand (supra) , the question which arose before the apex Court was when the Government delegates its power to an officer and the officer pursuant to such delegation makes an order, is the order an order of the officer or of the Government? The question was answered by holding that the power when delegated remains the power of the Government, for the Government can only delegate the power given to it by the statute and cannot create any independent power in the officer. When the delegatee exercises the power, he does so for the Government. An order passed by an officer on delegation is an order of the Government itself. It was held as under :-- “11. The question then arises, when the Government delegates its power, for example, to entertain and decide an appeal under section 21(4), to an officer and the officer pursuant to such delegation hears the appeal and makes an order, is the order an order of the officer or of the Government? We think it must be the order of the Government. The order is made under a statutory power. It is the statute which creates that power. The power can, therefore, be exercised only in terms of the statute and not otherwise. In this case the power is created by section 21(4). That section gives a power to the Government. It would follow that an order made in exercise of that power will be the order of the Government for no one else has the right under the statute to exercise the power. In this case the power is created by section 21(4). That section gives a power to the Government. It would follow that an order made in exercise of that power will be the order of the Government for no one else has the right under the statute to exercise the power. No doubt the Act enables the Government to delegate its power but such a power when delegated remains the power of the Government, for the Government can only delegate the power given to it by the statute and cannot create an independent power in the officer. When the delegate exercises the power, he does so for the Government. It is of interest to observe here that Wills, J. said in Huth v. Clarke [LR (1890) 25 QBD 391] that “the word delegate means little more than an agent”. An agent of course exercises no powers of his own but only the powers of his principal. Therefore, an order passed by an officer on delegation to him under section 41(1) of the power of the Government under section 21(4), is for the purposes of the Act, an order of the Government. If it were not so and it were to be held that the order had been made by the officer himself and was not an order of the Government — and of course it had to be one or the other — then we would have an order made by a person on whom the Act did not confer any power to make it. That would be an impossible situation. There can be no order except as authorized by the Act. What is true of section 21(4) would be true of all other provisions in the Act conferring powers on the Government which can be delegated to an officer under section 41(1). If we are wrong in the view that we have taken, then in the case of an order made by an officer as delegate of the Government’s power under section 21(4) we would have an appeal entertained and decided by one who had no power himself under the Act to do either. Plainly, none of these things could be done.” 10. Plainly, none of these things could be done.” 10. In Chairman, Indore Vikas Pradhikaran v. Pure Industrial Coke and Chemicals Limited and Others, 2007 (8) SCC 705 , the Apex Court held that when a delegatee exercises power relying upon or on the basis of power conferred upon it by the delegator, such an act performed by the delegatee would be deemed to be that of the delegator. It was held as under :-- “90. There cannot be any doubt whatsoever that even a delegatee exercises its power relying on or on the basis of its power conferred upon it by the delegator, its act would be deemed to be that of the principal as has been held by this Court in State of Orissa v. Commr. of Land Records & Settlement [ (1998) 7 SCC 162 ] . This Court held : “25. We have to note that the Commissioner when he exercises power of the Board delegated to him under section 33 of the Settlement Act, 1958, the order passed by him is to be treated as an order of the Board of Revenue and not as that of the Commissioner in his capacity as Commissioner. ————” (Emphasis in original)” 11. In Ishwar Singh (supra), it was held by the apex Court that the person delegating does not denude himself of the power delegated. Delegation also implies the power to withdraw delegation. Delegation of power does not imply parting with authority. The delegating authority will retain the power to act concurrently on matters within the area of delegating authority except in so far as it may already have become bound by an act of its delegatee. If an authority delegates the power to act, it shall be deemed to be an act of the delegator. In such a situation, there is no scope for revision or review of the order of the delegatee by the delegator. 12. In the present case also the power under section 307 of the Act, 1956 has been delegated by the Commissioner to the Building Officer pursuant to which the impugned order has been passed by him. In such a situation, there is no scope for revision or review of the order of the delegatee by the delegator. 12. In the present case also the power under section 307 of the Act, 1956 has been delegated by the Commissioner to the Building Officer pursuant to which the impugned order has been passed by him. Though the power has been delegated by the Commissioner to the Building Officer, but despite such delegation, the power delegated remains the power of the Commissioner himself since the Commissioner can only delegate the power given to him by the Act, 1956 and cannot create an independent power in the Building Officer. In exercising the power, the Building Officer has done so for the Commissioner. The order passed under section 307 of the Act, 1956 by the Building Officer, on delegation made to him under section 69(4) of the Act, 1956 is for the purpose of the Act, an order of the Commissioner himself. Since the order has been passed by respondent No.2 as delegatee of the Commissioner and is an order of the Commissioner himself, an appeal against his own order would not lie to the Commissioner. 13. In all the cases which have been relied upon by the learned counsel for the respondents, the fact situation was different. Therein an order was passed by an authority subordinate to the Commissioner not as a delegatee but exercising independent power conferred under the Act, 1956. In such circumstances, it was held that appeal against order of such an officer would lie before the Commissioner. The same is not the case in the present matter. 14. In view of the aforesaid discussion, it is held that against the impugned order dated 25.5.2022 passed by respondent No.2, an appeal before the Commissioner, Municipal Corporation shall not lie. The preliminary objection as raised by the learned counsel for the respondents is hence rejected. List after four weeks. I.R. to continue, till the next date of hearing.