Madhya Pradesh High Court
Neha Lokre vs Indore Municipal Corporaiton. on 4 March, 2025
Author: Pranay Verma
Bench: Pranay Verma
1 WP-12683-2022
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
WP No. 12683 of 2022
(NEHA LOKRE Vs INDORE MUNICIPAL CORPORAITON. AND OTHERS )
Dated : 04.03.2025
Shri Vijay Kumar Asudani - Advocate for the petitioner.
Shri Kamal Nayan Airen - Advocate for the respondents.
This petition under Article 226 of the Constitution of India has been
preferred by the petitioner being aggrieved by the order dated 25.05.2022
(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.
02. 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 01.04.2023, W.P.
No.10074/2022 (Dilip Vaid and Others versus Indore Municipal Corporation
and Another) decided on 09.05.2022, W.A. No.1060/2019 (Prakash Chandra
Pandey Vs. State of M.P. and Others) decided by order dated 13.08.2019 and
of the Apex Court in Ishwar Singh Vs. State of Rajasthan and Others, 2005
(2) SCC 334.
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NAAGDEVE
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03. 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 Vs. State of Punjab and Another, AIR 1963
SC 1503 and of the Bombay High Court in Lalji Vs. State of Maharashtra
and Another, 2017 SCC OnLine Bom 7686.
04. I have considered the submissions of the learned counsel for the
parties.
05. 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
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(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) *****"
06. 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
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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.”
07. The respondents have brought on record an order dated 10.08.2020
(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.
08. 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)******”
09. 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
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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. 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. In Chairman, Indore Vikas Pradhikaran Vs. 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:
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(SCC p. 173, para 25)“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. 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
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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 25.05.2022 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.
(PRANAY VERMA)
JUDGE
Shilpa
Signature Not Verified
Signed by: SHILPA
NAAGDEVE
Signing time: 04-03-2025
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