Modi, J. - (1.) THIS is a petition under Art. 226 of the Constitution.
(2.) THE case, as disclosed by the petitioner, is that she was the owner of a plot No. J 39 in 'c Scheme, (now known as Ashok Nagar) Jaipur, and she built a house thereon after obtaining proper sanction of the Municipal Council, Jaipur. As it happened, slight variations were made, as the construction proceeded, and these were objected to by the Municipal Council at the instance of respondents No. 3, Shri D. D. Goswami, who had his house on the adjoining plot. It was alleged that the Municipal Council compounded the action of the petitioner subject to payment of Rs. 101/-by order of the Chairman dated 24th October, 1956. THE money was remitted by the petitioner. Respondent No. 3, Shri D. D. Goswami filed a revision, which was heard by the Deputy Minister, Local Self Government, on 31-st January, 1957, but the petitioner was not informed of the decision. THE petitioner lived at Kanpur, and got information from his relations in Jaipur on 22nd April, 1957, that the overseer of the Municipal Council with police force and 20 other persons had come to the house of the petitioner, and started demolition of the front portion and the staircase, which action, if completed, would have resulted in the front portion of the building to collapse, and in causing injuries to the tenants who were occupying the house. THE work of demolition was, however, stopped by the personal intervention of one of the Ministers of the Government, and the petitioner learnt that the revision petition filed by respondent No. 3 to the Government had been allowed on the 17th April, 1957, and it was in pursuance of that order of the Government that the demolition of the petitioner's house had been undertaken. THE petitioner submitted that the order of the Government directing demolition of his building was illegal on various grounds mentioned in the petition, and should, therefore, be set aside. On behalf of the Municipal Council a reply was submitted that the Government had the power under its revisional-jurisdiction to set aside any order of the Municipal Council, and it was in exercise of such jurisdiction that the order of the Municipal Council compounding the unauthorised construction had been quashed, and an order was further passed by the Government that such unauthorised constructions should be demolished. Mr. D. D. Goswami also filed a reply in which he averred that he had brought to the notice of the Municipal Council that the petitioner, Mrs. Jain, was constructing contrary to the plan sanctioned by the Municipal Council, but the Chairman wrongly compounded the case, whereupon he filed a revision, and the Government, in exercise of revisional powers, decided to quash the order of compounding the case, and further directed demolition of the unauthorised construction, and the Government was competent to pass the orders which it did. Various copies of documents have been produced in the case, and it appears from a perusal thereof that on complaint by Shri Goswami to the Chairman, Municipal Council, on 10th September, 1956, the site was inspected by the building inspector, Satram Das, on 15th September, 1956. His report was as under: - "i have seen the site in the presence of the applicant (Shri D. D. Goswami) yesterday. The deviations from the sanctioned plan are as under- (a) Staircase is constructed on front side on west of the building which is within 15 ft. from the compound wall. (b) Balcony is constructed on the height of 13 ft. against 15 ft. from ground level as per sanctioned plan. The work has not been stopped, though legal notice was served under sec. 210 and action to dismantle the item No. (a) was taken. As per A. D. M. 's verbal orders given to the B. I. on 27/7 the dismantling operations were kept in abeyance. Letter to Secretary U. I. B. was written on 16. 8. 56 to intimate whether revised plan has been received, (but) no reply has yet been received. The Commissioner recommended action to be taken, whereupon the Chairman of the Municipal Council remarked on 19th September, 1956, that - "unauthorised construction be stopped at once and a reminder be sent to U. I. B. If the party does not stop the construction, action under sec, 210 be also taken. . . . . . The Overseer should report if the construction has been stopped or not. The Overseer reported on 24 September, 1956, that the construction had been completed, and the President, Municipal Council, directed action to be taken under sec. 210 of the City of Jaipur Municipal Act, 1943 (Act No. LIU of 1943 ). Sec. 210 authorises the Municipal Council to execute any work which the owner fails to execute when required to do so under the provisions of the Act. In the meanwhile, Mrs. Leela Jain, through her lawyer, requested the Municipal Commissioner by application dated 7th August, that she did not want to enter into litigation, and prayed that the case be compounded by imposing a reasonable penalty. The President of the Municipal Council inspected the site, and recorded the following order on 24th October, 1956: - "i have inspected the site and seen the record of the case as well. The applicant Shrimati Leela Devi has of course made some alterations in the original plan submitted by her. The construction, however, does not infringe any bye-law regarding construction. She has altered the plan without permission for which she has applied for compounding on 7. 8. 56. The Municipal Council can enforce the regulations of the Urban Improvement Board or not, is a doubtful matter. The case be, therefore, compounded for Rs. 101/- (One hundred one) only. The party be informed and compound money be realised. " This amount was deposited by the petitioner on 8th November, 1956. Shri Goswami filed a revision to the Government against the order of the Present, Municipal Council, dated 24th October, 1956, and the Government's order thereon communicated by the Assistant Secretary to the Government to the Municipal Council on 17th April 1957, is as follows: - "i am directed to say that Government after full consideration hold that the power of the Board for compounding a case should be exercised judicially. Wherever the construction has been made in contravention of the bye-laws of Urban Improvement Board and to the detriment of the neighbours, there does not seem to be justification for compromise. Under the I. P. C. only some affairs are compoundable and they are private crimes. Public crimes are not compoundable. Had the affair been between the Municipal Council and the owner of the house, it could have been compounded, but not where it affects any neighbours. The construction of the neighbours seems to have been adversely affected by the construction, and on his complaint it was decided by the Municipal Council that the construction be demolished. Under the circumstances the unauthorised construction should be demolished. The revision petition is, therefore, accepted, and the order of the Municipal, Council, Jaipur, is set aside. The unauthorised construction should be demolished. The parties concerned may be informed accordingly. " It was in pursuance of the above order of the Government that the Municipal Overseer and the servants proceeded to the spot to demolish the constructions made contrary to the plan which had been submitted and sanctioned by the Municipal Council. Learned counsel for the petitioner first contended that the order passed by the Municipal President On 24th October 1956, was not revisable by the Government. Learned counsel for the respondents relied on the Rajasthan City Municipal Appeals (Regulation) Act, 1950 (Act No. III of 1950), and urged that sec. 4 permitted revisions in all cases decided by any Municipal authority. A careful consideration of the provisions of the City of Jaipur Municipal Act, and the Rajasthan City Municipal Appeals (Regulation) Act, 1950, does not enlarge the scope for appeals and revision, but only purports to regulate such appeals as could be filed according to the provisions of the main Act. The present being not an order of the kind which was appellate or revisable under the Act was not one which could be revisable under Act No. III of 1950. Municipal Corporations were created in India for the purpose of increasing the association of the people in the administration and gradual development of self-governing institution with a view to progressive realisation of responsible Government in India, and the foundations of these institutions are to be found in the famous Resolution of Lord Ripon dated 18th May, 1822, and the recommendations of the Royal Commissions. One of the basic principal of these institutions is that the interference of the Government is to be as little as possible. Reference may be made to Keshri Mal vs. State of Rajasthan (1 ). The main Act provides for appeals in certain cases to the authority laid down in the Act, but there is very little control of the Government in the day to day administration of the Municipal affairs. Chapter XII relates to control of Government over the Municipality of the City of Jaipur. The power to suspend execution of any order or resolution of the Board is found in sec. 240, while the power to get a certain work executed which the Municipal Board is empowered to execute, is given in sec. 241. In either case, however, interference of the Government is restricted to certain circumstances which may then be existing. The power exercisable under sec. 240 can be done if the act to be done by the Municipal Board is causing or is likely to cause injury or annoyance to the public or to le|ad to a breach of the piece, or is unlawful. If the Government purports to act under sec. 241, it must be in the circumstance that the immediate execution of the act is necessary for the health or safety of the public. The other sections in this Chapter are not relevant for the purpose of this case. If we turn to Act No. III of 1959, the preamble shows that the enactment was made in order to provide for and secure uniformity on the forum for municipal appeals pertaining to the cities of Rajasthan. The relevant sections may here be quoted: - "3. First municipal appeals.- (1) Notwithstanding anything contained in any Municipal law, wherever such law provides for a Municipal appeal, the appeal shall, subject to the time limit prescribed therefor by such law, lie to and be brought before the Commissioner. (2) All municipal appeals pending at the commencement of this Act before any officer or authority other than the Commissioner shall be transferred to the Commissioner for disposal. (3) In any municipal appeal under this section, the Commissioner shall proceed in the manner provided for such appeal in the municipal law applicable thereto and the decision thereon of the Commissioner, shall subject to the provisions of sec. 4 and 5, be final and conclusive. (4) When an appeal under this section is pending at the commencement of this Actor has been thereafter preferred all proceedings to enforce the order appealed against and all prosecutions for a breach thereof may, by order of the Commissioner be suspended pending the decision of the appeal. 4. Second municipal appeals and revisions.- (1) Notwithstanding anything contained in any municipal law, no municipal appeal shall lie from any order passed in appeal under sec. 3. Provided that the Government may, of its own motion or on the application of a Municipal authority or any aggrieved person call for the record of any case for the purpose of satisfying itself as to the correctness, legelity or expediency of any order passed by a Commissioner, or a Municipal authority and may pass such orders therein as the Government may consider fit and reasonable. (2) Any municipal appeals from orders made in appeal by any officer or authority other than a Municipal authority, pending at the commencement of this Act, shall be transferred to the Government and be disposed of in accordance with the proviso to sub-sec. (1 ). (3) The provisions of sub-sec. (4) of sec, 3 shall mutatis mutandis apply also to appeals and applications under this section. " A careful consideration of sec. 3 would show that the forum is provided by that section in respect of appeals, which lay under the Municipal law of a particular city. This section did not enlarge the jurisdiction of the appellate court, but where appeals did lie according to law, the forum was provided. Under sec. 4, second appeals were done away with, and the proviso cannot be read so as to mean that even where no appeal lay, a revision could lie to the Government. According to the well known principles of interpretation, the proviso is to be read as a clog on the main section, but not as giving rights independent of it. Reference may be made to Madras & Southern Maharatta Ry. Co. Ltd. vs. Bezwada Municipality (2) and Sutlej Cotton Mills Ltd. vs. Commissioner of Income-tax (3), and Ram Narain Sons Ltd. vs. Asst. Commissioner of Sales Tax (4 ). In the first case it was held that the proper function of a proviso is to except and deal with a case which would otherwise fail within the general language of the main enactment, and its effect is confined to that case. In the second case it was held that the effect of a proviso is to qualify something already enacted which but for the proviso would be within it. In the last case their Lordships of the Supreme Court held it to be cardinal rule of interpretation that a proviso to a particular provision of a statute only embraces the field which is covered by the main provision. It carves out an exception to the main provision to which it has been enacted as a proviso and to no other.
(3.) THE effect of the proviso by reference to sec. 3 and 4, therefore, is that is cases where appeal is provided by the main Act, such appeal shall lie to the Commissioner. No appeal shall lie from an order of the Commissioner in appeal, but against such appellate decision a revision may lie to the Government. In order that a revision can lie, the first requisite is, therefore, that the order should be an appealable one. If the order is appealable, there can be an appeal to the Commissioner, and against the decision of the Commissioner a revision will lie to the Government. But if the order is not appealable, then there can be neither an appeal nor a revision to the Government. If this were not so, and the proviso to sec. 4 (1) be read as giving a power to the Government to exercise revisional jurisdiction in respect of every order passed by a Commissioner a Municipal Authority, the whole edifice of a Local Self-Government would tumble to pieces. Act III of 1950 was enacted to provide unformity of procedure, and it appears by reference sub-sec. (2) of sec. 4 that according to the Acts applicable to certain cities, appeal from an appellate order was also permissible. THE Government, however, did not propose to continue the provision of second appeals, and these second appeals were to be transferred to the Government to be disposed of as revisions. If every order of every municipal authority were to be treated as revisable by virtue of the proviso to sec. 4, the interference of the Government would be sought in every order made by any municipal authority, and the municipal affairs would come to be conducted not by Municipal Committee but by the Government. A careful consideration of these provisions, therefore does not leave any room for doubt that the order being not appealable, the Government had no power to revise the order of the Municipal President passed in the case, and the petitioner is entitled to succeed. THE order of the Government is without jurisdiction and must be quashed on this ground alone. It is not necessary to go into the other grounds raised in this petition. After the close of the arguments on 30th September, 1958, when the case was reserved for judgment, an application was submitted on behalf of the Deputy Government Advocate on 14th October, 1958, that the Chairman of the Board had no power to compound the matter. If this was so, this plea should have been raised in the replies filed by the respondents and canvassed at the time of arguments. Sec. 39 (d) authorises the Chairman, subject to the provisions of sec. 52 and the Rules, to perform such other executive functions as may be performed by or on behalf of the Municipal Board. Unless, therefore, the powers of the Chairman are limited by any direction under sec. 52 or under any of the Rules, the Chairman has the power to perform all functions of the Board, including the power to compound a case like the present. There is no affidavit in support of the application that any instrument had been issued by the Board under sec. 52 placing a curb on the general powers of the Chairman granted to him by sec. 39 as aforesaid, or that there are any rules which had restricted the exercise of such powers. There is no affidavit either that the Chairman did not exercise such functions in the past, or that if he did so, any objection was at any time taken by the Board or other competent authority. It may be mentioned that this was not also the ground on which the Government purported to pass the order, and the point not having been raised earlier at any stage, cannot now be permitted to be raised at this stage. As a result, the petition is allowed, and the order of the Government dated 17th April, 1957, is set aside. The petitioner will get her costs from respondent No. 3, who has been responsible for this litigation. .;