Case Note & Summary
The petitioner, Kishanlal Udaylal Jain, through his power of attorney holder, filed a Criminal Writ Petition under Article 227 of the Constitution of India and Section 482 of the Code of Criminal Procedure, 1973, seeking quashing of criminal proceedings in CCF No.4100562/SS/15 pending before the 41st Metropolitan Magistrate, Shindewadi, Dadar, Mumbai. The proceedings arose from a notice issued by the Assistant Engineer (B&F) of the 'A' Ward, Mumbai Municipal Corporation, under Section 381 of the Mumbai Municipal Corporation Act. The petitioner contended that the Assistant Engineer was not authorized to issue the notice as the powers under the Act are vested in the Commissioner, and there was no evidence of proper delegation of those powers to the Assistant Engineer. The petitioner relied on the decision in Vasant S. Naik v. Municipal Corporation of Greater Mumbai & Anr., 2009 (1) Bom. C.R. (Cri.) 157, which held that such notices are invalid without proper delegation. The court, after hearing the parties, found that the respondent/Municipal Corporation failed to demonstrate that the Assistant Engineer had the requisite authority. Consequently, the court held that the notice was not legally sustainable, and the criminal proceedings based on it were an abuse of the process of law. The court allowed the petition, quashed the criminal proceedings, and made the rule absolute.
Headnote
A) Municipal Law - Delegation of Powers - Section 381 Mumbai Municipal Corporation Act - Validity of Notice - The Assistant Engineer (B&F) issued a notice to the petitioner without establishing that the Commissioner's powers were properly delegated to him - The court held that unless delegation is proved, the notice is invalid and criminal proceedings based on such notice cannot be sustained (Paras 3-5).
B) Criminal Procedure - Quashing of Proceedings - Section 482 Cr.P.C. - Abuse of Process - The court quashed the criminal proceedings pending before the 41st Metropolitan Magistrate, Dadar, Mumbai, as the notice forming the basis of the complaint was issued without authority - Held that continuation of proceedings would be an abuse of the process of law (Paras 5-6).
Issue of Consideration
Whether the notice issued by the Assistant Engineer (B&F) of the Mumbai Municipal Corporation was legally sustainable in the absence of proper delegation of powers from the Commissioner under the Mumbai Municipal Corporation Act.
Final Decision
The court allowed the petition, quashed and set aside the criminal proceedings in CC No.4100562/SS/15 pending before the 41st Metropolitan Magistrate, Shindewadi, Dadar, Mumbai. Rule made absolute.
Law Points
- Delegation of powers must be strictly proved
- Notice under Section 381 must be issued by authorized officer
- Criminal proceedings cannot be sustained on invalid notice
Case Details
2019 LawText (BOM) (07) 133
Criminal Writ Petition No.3335 of 2017
Mr. Samir A Vaidya for the Petitioner, Ms. Prachi Tatake a/w Mr. Kunal Waghmare for Respondent No.1/BMC, Mr. Vinod Chate, APP for the Respondent/State
Mumbai Municipal Corporation for Greater Mumbai through R V Pradhan, Senior Legal Assistant, 'A' Ward, Mumbai & State of Maharashtra
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Nature of Litigation
Criminal Writ Petition seeking quashing of criminal proceedings pending before the 41st Metropolitan Magistrate, Dadar, Mumbai.
Remedy Sought
Quashing of CC No.4100562/SS/15 pending before the 41st Metropolitan Magistrate, Shindewadi, Dadar, Mumbai.
Filing Reason
The notice issued by the Assistant Engineer (B&F) of the Mumbai Municipal Corporation was without proper delegation of powers from the Commissioner.
Previous Decisions
The petitioner relied on Vasant S Naik v. Municipal Corporation of Greater Mumbai & Anr., 2009 (1) Bom. C.R. (Cri.) 157.
Issues
Whether the Assistant Engineer (B&F) was authorized to issue notice under Section 381 of the Mumbai Municipal Corporation Act without proper delegation of powers from the Commissioner.
Whether the criminal proceedings based on such notice should be quashed under Section 482 Cr.P.C.
Submissions/Arguments
Petitioner argued that the Assistant Engineer was not authorized to issue the notice as powers are vested with the Commissioner and no delegation was proved.
Petitioner relied on Vasant S Naik v. Municipal Corporation of Greater Mumbai & Anr. to support the contention.
Respondent/Municipal Corporation failed to demonstrate proper delegation of powers.
Ratio Decidendi
A notice issued under Section 381 of the Mumbai Municipal Corporation Act by an officer who is not properly delegated with the powers of the Commissioner is invalid, and criminal proceedings based on such notice cannot be sustained and are liable to be quashed under Section 482 Cr.P.C. to prevent abuse of process.
Judgment Excerpts
The learned counsel appearing for the Petitioner Mr. Samir Vaidya submits that the Assistant Engineer (B&F), 'A' Ward, Mumbai Municipal Corporation was not authorized to issue notice inasmuch as the powers under the Mumbai Municipal Corporation are vested with the Commissioner.
In support of the aforesaid contention, the learned counsel for the Petitioner has placed reliance upon the observations made by this Court (Coram : Karnik D.G., His Lordship then was) in the matter of Vasant S Naik v/s. Municipal Corporation of Greater Mumbai & Anr.
Procedural History
The petitioner filed Criminal Writ Petition No.3335 of 2017 before the High Court of Judicature at Bombay seeking quashing of criminal proceedings in CCF No.4100562/SS/15 pending before the 41st Metropolitan Magistrate, Shindewadi, Dadar, Mumbai. The petition was heard on 4th July 2019 and allowed.
Acts & Sections
- Mumbai Municipal Corporation Act: Section 381
- Code of Criminal Procedure, 1973: Section 482
- Constitution of India: Article 227
