Harish Tandon, J. - (1.) A short but interesting point is raised in this Revisional Application touching the competence and/or powers of the Special Officer (Building) to discharge the statutory duty and function of the Municipal Commissioner vested under Section 400(1) of the Kolkata Municipal Corporation Act, 1980 as delegatee. An action has been taken against the Petitioner under Section 400(1) of the said Act alleging that they have illegally and unauthorizedly undertaken the construction work in violation of the different provisions of the said Act and the Rules framed thereunder. The Special Officer (Building) is acting as a delegatee to the Municipal Commissioner and hearing the proceeding and passing orders for demolition in the event such construction violates any of these statutory provisions. Such order is amenable to be challenged before the Building Tribunal by way of an appeal and against the Appellate Order further challenge can be made before the High Court under Article 227 of the Constitution of India. This is how the matter has come up before this Court and a point is raised at the behest of the Petitioner on the validity of the powers exercised by the Municipal Commissioner under Section 48 of the said Act.
(2.) THE object and the purpose behind the incorporation of the Kolkata Municipal Corporation Act was to amend and consolidate the law relating to municipal affairs in the city of Kolkata. The said Act contains the exhaustive provisions relating to constitution of the Corporation, powers and functions of the Municipal Authorities, election of the Councillors, conduct of business, maintenance of the municipal records, imposition of taxes and recovery thereof and providing civil amenities including the town plannings and maintenance of the buildings and so on so forth. Before proceeding to address the core issue as above, it would be relevant and profitable to narrate the different provisions of the said Act. Section 2 of the said Act contains the definition Clause assigning meaning of the different words or expressions used in the said Act for the purpose of interpretations and the meaning thereof. Section 3 of the Act postulates the Municipal Authorities for the purpose of carrying out the provision of the said Act and to be comprised of the Corporation, Mayor -in -Council and the Mayor. Sub -section (2) of Section 4 of the Act specifies the Corporation as a body corporate with perpetual succession and a common seal and may sue or be sued in such name. It shall be so appointed by notification issued by the State Government to take charge of the Municipal Government of Kolkata to be known as Kolkata Municipal Corporation. It is relevant to record that the expression "Calcutta" has been substituted by the word "Kolkata" by Section 5 of the West Bengal Capital City (Change of Name) Act, 2001, which came into force from 1st day of January, 2001. Section 5 of the Act relates to constitution of the Corporation which consists of 141 elected Councillors and such persons having special knowledge or experience in municipal administration as the State Government may nominate from time to time. However, the restriction was imposed upon such persons not to have a right to vote in the meeting of the Corporation. Sub -section (2) of Section 5 mandates that the said 141 Councillors shall be elected by the Constituencies and for the purpose of the same each word described in Schedule II of the Act shall constitute the Constituency. Out of those elected Councillors one member shall be elected at the first meeting of the Corporation as Mayor and one member as Chairman. Section 8 of the Act provides that the Mayor -in -Council consisting of Mayor, the Deputy Mayor and not more than 10 (ten) other elected members of the Corporation shall be responsible to the Corporation and shall transact the business which shall be determined by the Corporation by Regulations.
(3.) THE entire argument is advanced on the provision contained in Chapter III and IV of the Act and therefore it is necessary to quote the relevant Sections for better understanding and determination of the issue indicated above: - - "S. 14. Offices of the Corporation. - - - - (1) Save as otherwise provided in the Act, the Corporation shall have the following officers, namely: (a) the Municipal Commissioner, (b) such number of Joint Municipal Commissioners as the Mayor -in -Council may, from time to time, determine, (c) the Controller of Municipal Finances and Accounts, (d) the Chief Municipal Auditor, (e) the Municipal Engineer -in -Chief, (f) such number of Deputy Municipal Commissioners and Chief Municipal Engineers as the Mayor -in -Council may, from time to time, determine, (g) the Chief Municipal Architect and Town Planner, (h) the Chief Municipal Health Officer, (i) the Chief Municipal Law Officer, and (j) the Municipal Secretary. (2) The Municipal Commissioner, a Joint Municipal Commissioner, the Controller of Municipal Finances and Accounts and the Chief Municipal Auditor referred to in sub -section (1) shall be appointed - - (a) by the State Government in consultation with the Mayor -in -Council, by notification, from amongst persons who are or have been in the service of Government, or (b) if so directed by the State Government, by the Mayor -in -Council in consultation with the State Public Service Commission, or (c) by the Mayor -in -Council, with the prior approval of the State Government, from amongst officers who are or have been in the service of the Corporation: Provided that the appointment of officers under clause (a) shall be on such terms and conditions and for such period, not exceeding five years in the first instance, as the State Government may determine: Provided further that the State Government may, in consultation with the Mayor -in -Council, extend the period of appointment from time to time, so, however, that the total period of extension shall not exceed five years. (3) The other officers referred to in clauses (e) to (j) of sub -section (1) shall be appointed - - - (a) by the Mayor -in -Council in consultation with the State Public Service Commission, or (b) by the State Government in consultation with the Mayor -in -Council, by notification, from amongst persons who are or have been in the service of Government, if the Mayor -in -Council so decides: Provided that no Government employee above 60 years of age shall be appointed. (4) The method of, and the qualifications required for, recruitment, and the terms and conditions of service including conduct, discipline and control, of officers appointed by the Mayor -in -Council shall be such as may be prescribed. (5) Notwithstanding anything contained in the foregoing provisions of this section, the State Government may, at any time in the case of any person appointed under clause (a) of sub -section (2) as the Municipal Commissioner or as a Joint Municipal Commissioner or as the Controller of Municipal Finances and Accounts or as the Chief Municipal Auditor or appointment under clause (b) of sub -section (3), terminate his appointment as such: Provided that if, in the case of any such officer, the Mayor -in -Council so decides, the State Government shall terminate the appointment of such officer. (6) Notwithstanding anything contained in sub -section (2) or sub -section (3), prior approval of the State Government shall be necessary in the case of appointment of a person not recommended by the State Public Service Commission. S.15. Salary and other conditions of service of Municipal Commissioner and other officers. - - - (1) The officers appointed under clause (a) of sub -section (2), or clause (b) of sub -section (3), of section 14 shall be paid out of the Municipal Fund such salary and allowances as may, from time to time, be determined by the State Government. (2) Leave may be granted by the State Government to the officers appointed under clause (a) of Sub -section (2), or clause (b) of sub -section (3), of section 14 on the recommendation of the Mayor and where such leave is granted to any such officer, the State Government shall appoint another person to officiate in his place. (3) If any of the officers referred to in sub -section (1) is in the service of Government, the Corporation shall make such contribution towards his leave allowances, pension and provident fund as may be required by or under the conditions of his service under Government or the terms and conditions of his service under the Corporation, as the case may be, to be paid by or for him. (4) If any of the officers referred to in sub -section (1) of section 14 is not an officer in the service of Government, his leave allowances, superannuation or retirement gratuity or pension and the proportions of his pensionary or provident fund contribution payable respectively from his salary and from the Municipal Fund shall be governed by rules: Provided that - (a) the amount of leave and leave allowances, gratuity or pension shall in no case, except with the special sanction of the State Government, exceed the amount admissible to Government servants of equivalent rank; and (b) the conditions of grant of such leave and the conditions of superannuation or retirement shall in no case, except with the special sanction of the State Government, be more favourable than those for the time being applicable to such Government servants. S.16. Filling of casual vacancies in the posts of officers appointed by the State Government. - -If any vacancy occurs in the office of any of the officers referred to in clause (a) of sub -section (2), or clause (b) of sub -section (3), of section 14 by reason of death, resignation, removal or otherwise, the State Government may in consultation with the Mayor -in -Council, appoint another person to officiate in his place for a period not exceeding six months. S.17. Establishment of the Corporation and schedule of posts. - -(1) The posts of officers and employees of the Corporation, other than those referred to in sub -section (1) of section 14, shall constitute the establishment of the Corporation. (2) The Corporation shall, by regulation, classify the posts of officers and employees constituting the establishment of the Corporation into four categories, namely, category A post, category B post, category C post and category D post, on the basis of the scales of pay of such posts. (3) The Corporation shall maintain a schedule of posts which shall include the designation and the number of posts under each designation of officers and employees constituting the establishment of the Corporation and the schedule shall be in three parts of which Part I shall include category A posts, Part II shall include category B posts and Part III shall include category C posts and category D posts. (4) Every year the Municipal Commissioner shall place before the Mayor -in -Council for its consideration the schedule of posts along with the proposals, if any, for such changes therein as he may consider necessary: Provided that no upward revision of the size of the establishment of the Corporation shall be made without the prior sanction of the State Government. (5) The Mayor -in -Council shall, after consideration of the schedule of posts along with the proposals, if any, for changes therein, place the same along with its recommendations, if any, before the Corporation for approval before the presentation of the budget estimate to the Corporation by the Mayor. (6) The Municipal Commissioner shall revise the schedule of posts as approved by the Corporation. (7) The Mayor -in -Council may sanction any category C post or category D post for a period not exceeding six months. S.18. Appointing authorities. - -Subject to the other provisions of this Act, the appointing authority in respect of the posts of officers and employees constituting the establishment of the Corporation shall be, - - (a) in the case of category A posts, the Municipal Commissioner, (b) in the case of category B posts, a Joint Municipal Commissioner, and (c) in the case of category C posts and category D posts, such officer or officers of the Corporation as the Municipal Commissioner may, with the prior approval of the Mayor -in -Council, designate in this behalf. S.19. Appointment to category A posts, category B posts, category C posts and category D posts. - -(1) Appointment to a category A post or a category B post shall be made on the recommendation of the Municipal Service Commission. (2) Appointment to a category C post or a category D post shall be made in such manner as may be determined by regulation. (3) Notwithstanding anything contained in sub -section (1), prior approval of the State Government shall be necessary in the case of appointment of a person not recommended by the Municipal Service Commission. S.20. Service Regulations. - -The method of, and the qualifications required for, recruitment to category A posts, category B posts, category C posts and category D posts and the terms and conditions of service of persons appointed thereto including pension, gratuity and provident fund shall be determined by regulations. S.23. Age of superannuation of officers and employees of the Corporation. - -Notwithstanding anything in this Chapter or elsewhere in this Act or in any rules or regulations made thereunder, the age of superannuation of officers and employees of the Corporation shall be determined by the State Government and no such officer or employee shall, after retirement, be reemployed in any post without the prior sanction of the State Government. S.24. Dispensation of consultation with State Public Service Commission or Municipal Service Commission. - - - Notwithstanding anything contained in this Chapter, it shall not be necessary to consult the State Public Service Commission or the Municipal Service Commission, as the case may be, in the case of appointment of a person as an officer or employee of the Corporation, - - (a) if the person to be appointed is or has been in the service of Government, or (b) if the post to be filled up is for a term of six months, or (c) if the period for which the appointment is made does not exceed six months. S.25. Dismissal of officers and employees of the Corporation under certain circumstances. - -(1) If any officer or employee of the Corporation is habitually in debt or acquires directly or indirectly by himself or by any officer or employee of the Corporation any share or interest in any contract with or on behalf of the Corporation, such officer or employee shall be dismissed by his appointing authority: Provided that for the purpose of this sub -section, any debt owed by an officer or employee of the Corporation to a co -operative society or a body corporate constituted or established by or under any enactment in force for the time being shall not be taken into consideration: Provided further that nothing in this sub -section shall apply to the acquisition by an officer or employee of the Corporation of any share or interest in any company, incorporated under any enactment in force for the time being, which contracts with or is employed by the Corporation. (2) If any officer or employee of the Corporation is, after the commencement of this Act, convicted of an offence against the State or of an offence involving moral turpitude and is sentenced either to rigorous imprisonment for any term or to simple imprisonment for a term of not less than six months, he shall be deemed to have been dismissed from the service of the Corporation with effect from the date of such conviction. (3) If the conviction resulting in the dismissal of an officer or employee of the Corporation under sub -section (2) is set aside by a competent court, such officer or employee shall be deemed to have been suspended from the service of the Corporation from the date of conviction till the date on which the conviction is set aside. (4) The State Government may, of its own motion or on receipt from an officer or employee of the Corporation deemed to have been dismissed under sub -section (2), an application accompanied by a certified copy of the judgement relating to the conviction resulting in such dismissal, by order in writing, exempt such officer or employee from the operation of sub -section (2) and thereupon such officer or employee shall be deemed to have been suspended from the service of the Corporation from the date of conviction until his release on the expiry of the term of imprisonment. (5) An application under sub -section (4) may be made to the State Government within two months from the date of conviction. Such application shall be disposed of by the State Government within three months of its receipt. Explanation. - -The expression "offence against the State" shall mean an offence included in Chapter VI or Chapter VII of the Indian Penal Code (45 of 1860). S.26. Constitution of Municipal Service Commission. - -(1) The Corporation shall, as soon as may be after the commencement of this Act, constitute a Municipal Service Commission consisting of - (a) a Chairman, and (b) three other members. (2) The Chairman and one of the other members shall be nominated by the Corporation on the recommendation of the Mayor -in -Council, the two members, one of whom shall be an officer of the Department of Scheduled Castes and Tribes Welfare of the State Government, shall be nominated by the State Government. (3) The Chairman and other members shall hold office for a term of (four years or till attaining the age of sixty -two years, whichever is earlier). (4) A person who holds office as Chairman or other member of the Municipal Service Commission shall, on the expiration of his term of office, be ineligible for appointment to any post under the Corporation. (5) The qualifications for appointment as Chairman or other member of the Municipal Service Commission shall be such as may be provided by regulations. (5A) Notwithstanding anything to the contrary contained elsewhere in this Act or in any other law for the time being in force, the Municipal Service Commission constituted under sub -section (1) shall also select such personnel for the Howrah Municipal Corporation constituted under the Howrah Municipal Corporation Act, 1980 (West Ben. Act LVIII of 1980), or (the Municipal Corporations constituted under the West Bengal Municipal Corporation Act, 2006 (West Ben. Act XXXIX of 2006), or any Municipality or Notified Area Authority or Industrial Township Authority constituted under the West Bengal Municipal Act, 1993 (West Ben. Act XXII of 1993) as the State Government may, by notification, determine from time to time. (5B) Notwithstanding anything contained in this section the Municipal Service Commission shall also select such personnel for such posts in the organizations or agencies or authorities under the Control of Department of Municipal Affairs and Department of Urban Development, Government of West Bengal as the State Government may, by notification, determine from to time.) (6) The Corporation shall by regulations provide for - - (a) the salaries, allowances, if any, and conditions of service of the Chairman and other members of the Municipal Service Commission; (b) the manner in which the Municipal Service Commission shall perform the duties imposed upon it by or under this Act; (c) the number of officers and other employees of the Municipal Service Commission and their salaries and allowances; and (d) the terms and conditions of service including discipline, control and conduct of officers and other employees of the Municipal Service Commission. S.28. General powers of the Corporation. - -Subject to the provisions of this Act and the rules and the regulations made thereunder, the municipal government of (Kolkata) shall vest in the Corporation. S.33. Executive power of the Corporation to be exercised by Mayor -in -Council. - -(1) Subject to the provisions of this Act and the rules and the regulations made thereunder, the executive power of the Corporation shall be exercised by the Mayor -in -Council. (2) All executive actions of the Mayor -in -Council shall be expressed to be taken in the name of the Corporation. S.39. Powers and functions of the Municipal Commissioner. - -(1) The Municipal Commissioner shall be the principal executive officer of the Corporation and shall, subject to the supervision and control of the Mayor, - - (a) exercise the powers and perform the functions specifically conferred or imposed upon him by or under this Act or by any other law in force for the time being; (b) assign the duties, and supervise and control the acts and proceedings, of all officers and employees of the Corporation. (2) All officers and employees of the Corporation shall be subordinate to the Municipal Commissioner. S.45. Contracts. - -(1) Subject to the other provisions of this Act, the Corporation may enter into and execute all such contracts as it may consider necessary or expedient under, or for any of the purposes of, this Act. (2) With respect to any contract under sub -section (1), the following provisions shall have effect - (a) every contract shall be executed on behalf of the Corporation by the Municipal Commissioner or such other officer of the Corporation as the Mayor -in -Council may direct or authorise from time to time; (b) no such contract which under the provisions of this Act cannot be entered into without the approval or sanction of any authority or officer under this Act shall be entered into by any officer referred to in clause (a) until and unless such approval or sanction has been duly obtained; (c) no contract involving an expenditure exceeding ten thousand rupees or such higher amount as the Mayor -in -Council may fix shall be entered into by any officer referred to in clause (a) unless the same has been previously approved by the Mayor -in -Council; (d) every contract involving an expenditure exceeding two thousand rupees but not exceeding ten thousand rupees or such higher amount as may be fixed under clause (c) entered into by an officer referred to in clause (a) shall be reported by such officer to the Mayor -in -Council within one month of such contract. S.46. Manner of execution of contracts. - -(1) The manner of execution of contracts under this Act shall be determined by regulations. (2) No contract which is not entered into in accordance with the provisions of this Act or any regulation made thereunder shall be binding on the Corporation. S.48. Delegation of powers and functions. - -(1) The Corporation may by resolution delegate, subject to such conditions as may be specified in the resolution, any of its powers or functions to the Mayor -in -Council. (2) The Mayor -in -Council may by order delegate, subject to such conditions as may be specified in the order, any of its powers or functions to the Mayor or to the Municipal Commissioner. (3) Subject to such standing orders as may be made by the Mayor -in -Council in this behalf, - - (a) the Mayor may by order delegate, subject to such conditions as may be specified in the order, any of his powers or functions to the Deputy Mayor or the Municipal Commissioner; (b) the Municipal Commissioner may by order delegate, subject to such conditions as may be specified in the order, any of his powers or functions including the powers or functions under section 397, sub -section (1) of section 400 and sub -section (1) of section 411 to any other officer or any employee of the Corporation; and (4) Notwithstanding anything contained in this section, the Mayor -in -Council, the Mayor, the Municipal Commissioner, or the other officer referred to in clause (c) of sub -section (3), shall not delegate - - (a) any of its or his powers or functions delegated to it or him under this section, or (b) such of its or his powers or functions as may be prescribed. S.49. Doubts as to powers or functions of municipal authorities. - -If any doubt arises as to whether any particular power or function appertains to any municipal authority or the Municipal Commissioner, the Mayor shall refer the matter to the State Government and the decision thereon of the State Government shall be final.";