BOMBAY MUNICIPAL CORPORATION Vs. RAMACHANDRA LAXMAN BLOASAY

JUDGEMENT

(1.) This is an appeal against the order passed by Mr. Justice K.T. Desai by which by directed the issue of a writ to appellant No. 1, the Bombay Municipal corporation, hereinafter referred to as the corporation requiring the corporation to forebear from discussing a resolution, in regard to Mr. Imre Nagy and is associates, of which a notice had been given by a councilor of the corporation. Dr. R. N. Kulkarni. The resolution was in the following terms: That the Municipal corporation of Greater Bombay have learnt with deep regret about the execution of Mr. Imre Nagy, a former Prime Minister doctrine of Panchasila enunciated by our country and accepted by other countries of the world. The corporation hereby express their horror at the execution under peculiar conditions of those fighters for freedom of their motherland who, by displaying great courage and steadfastness even at the cost of their lives in the cause of their country freedom have upheld the dignity of man and rendered great serve to the highest value of life, viz. Freedom That Mayor be requested to forward the Resolution through the State Government to the Union Government with a request to communicate the proper channels for being communicated to the families of the late Mr. Imre Nagy and his associates with an expression of the corporations sympathy in their sad bereavement. It was moved at a meeting of the corporation held on 10th July 1958. A point of order was then raised that the corporation had no power to discuss the resolution , as it was of a political nature and related to international affairs and as it had nothing to do with civic duties which it was said must necessarily relate to the life and welfare of the citizens of Bombay. The second appellant who was the Mayor of the corporation, at the time and who was the chairman of the meeting, then gave a considered and well reasoned ruling, by which he held that the resolution was in order. Thereafter the meeting of the corporation was adjourned. On 18th July 1958, the respondent who is also a councilor of the corporation, filed a petition in which he contended that the action of the corporation in discussing and passing the above resolution would be ultra vires the corporation. He therefore prayed for the issue of a writ of mandamus or prohibition or any of the appropriate writ, director or order, under Article 226 of the constitution, against the appellants, restraining the corporation from discussing or endorsing the said resolution. The petition was opposed by the appellants. The contended that the corporation had the right and the power to discuss and pass the said resolution under clause (k) of section 36 Clause (k) of section 63 of the Bombay Municipal corporation Act, hereinafter referred to as the Act. The appellants contentions were not accepted by Mr. Justice Desai. He came to the conclusion that the resolution proposed was beyond the ambit and powers of the corporation. He therefore issued a writ restraining the corporation from discussing the said resolution or passing the same This order is being challenged in the present appeal.

(2.) The Bombay Municipal corporation is constituted by the Bombay Municipal corporation Bombay Act. No. III of 1888 Being a creature of statute its powers are limited by the provisions of the act, by which it is created. It can therefore exercise only such powers as are specifically conferred upon it by or under the Act, or as are consequential to or incidental to the exercise of such powers. This position was not disputed during the course of arguments. It is therefore not necessary to cite any authority. I may, however, refer to the following passage from halsburys Laws of England, paragraph 129 in Volume IX, Third Edition: "Statuatary Corporations: The powers of a corporation created by statute are limited and circumscribed by the statutes which regulate it an extend no further than is expressly stated therein or is necessarily and properly required for carrying into effect the purposes of its incorporation or may be fairly regarded as incidental to or consequential upon, those things which the legislature has authorised. What the statute does not expressly or impliedly authorise is to be taken to be prohibited.

(3.) It is therefore necessary to consider the relevant provisions of the Act. The preamble to the Act states that it was enacted to consolidate and amend the law relating to the municipal government of Greater Bombay Section 4 of the Act specifies seven municipal authorities, which are charged with carrying out the provisions of the Act. Clause (a) mentions the corporation as being one of these authorities. The powers and functions of each of these authorities are specified in different provisions of the Act subsection (1) of section 5 states that the corporation shall consist of one hundred and thirty on councilors. Subsection (2) of this section provides. the corporation shall meet for the despatch of business and shall from time to time make such regulations which respect to the summoning, notice place, management and adjournment of such meetings, and generally with respect to the mode of transacting and managing the business of the corporation including the submission, asking and answering of questions under section 66A as they think hit, subject to the following conditions. (k) any councilor who desires at any meeting to bring forward any business, other than any questions under section 66A or to make any substantive proposition, which is not already specified in the notice of such meeting, shall give written notice of the same to the municipal secretary at least three clear days before the day fixed for the meeting and a supplementary announcement of the business or propositions, of which notice has been so given, shall be given by the said secretary in not less that one local daily newspaper not later than the day previous to the meeting. The appellants rely on this provision in support of their contention that the corporation is entitled to discuss the said resolution. Chapter III of the Act contains provision relating to the duties and powers of the municipal authorities. Section 61 of gives a list of obligatory duties of the corporation for which, it is, as stated in the section, incumbent of the corporation to make adequate provision by any means or measures which it is lawfully competent to them to use or to take. One of these duties, referred to in clause (q) of the section, is to maintain aid and suitably accommodate schools for primary education. Section 63 specifies what are called discretionary duties of the corporation in regard to which the corporation have a discretion. The section states. The corporation may, in their discretion provide from time to time, either wholly or partly, for all or any of the following matters, namely: (b) the furtherance of educational objects other than those mentioned in clause (q) of section 61: (k) any measure, not herein before specifically named, likely to promote public safety health, convenience or instruction. And with the previous sanction of the State Government, the corporation may make - (l) sucn contribution as they think fit towards any public ceremony or entertainment in Greater Bombay. The provision contained in clause (k) is strongly relied upon by the appellants in the present appeal. Sub section (1) of section 64 provides that the respective functions of the several municipal authorities shall be such as are specifically prescribed in or under the Act. sub section (2) of section 64 states that except as in this act otherwise expressly provided, the municipal government of greater Bombay vests in the corporation. Sub section (1) of section 66A provides: Subject to any regulations made in this behalf under section 36, a councilor may question the commissioner who shall answer any question concerning or connected with the administration of this act or the municipal government of greater Bombay. This provision draws a distinction between the administration of the Act and municipal government.