Adarsh Kumar Goel, J.@mdashThis appeal has been filed by the Municipal Corporation, Amritsar - defendant against the decree restraining it
from recovering a sum of Rs. 20,115/- as penalty under the proviso to Section 195 of the Punjab Municipal Act, 1911. Appeal filed by the
appellant-defendant before the lower appellate court has been dismissed without going into the merits, on the only ground that no forma! decision
for filing the appeal had been taken by the Commissioner of the Corporation.
2. Learned counsel for the appellant submitted that the lower appellate court has committed an illegality in holding that the appeal filed by the
Corporation was not maintainable. He pointed out that in para 10 of the lower appellate court judgment, it was clearly observed that Yogesh
Chander who filed the appeal was duly authorised by the Commissioner, by way of delegating his power u/s 408(2) of the Punjab Municipal
Corporation Act, 1976 (for short 1976 Act). The Commissioner had delegated the powers vested in him u/s 394(e) and (h) of the Act and acting
on the said authority, Yogesh Chander had signed the memorandum of appeal, no further resolution was required. The relevant observations of the
lower appellate court are reproduced below :-
There is no doubt that in this case, Shri Yogesh Chander duly authorised by the Commissioner by way of delegating his powers under sub-section
(2) of Section 408 of the Punjab Municipal Corporation Act, to exercise the powers conferred on the Commissioner u/s 394(e) and (h) of the Act
and acting on behalf of the Commissioner, Shri Yogesh Chander signed the memorandum of appeal, but there is no documentary evidence on
record to show that the Commissioner ever decided to institute the present appeal.
Provisions of Section 408(2) and Section 394(e) and (h) of the 1976 Act are reproduced below :-
408. Delegation, -(1) xxx xxx
(2) The Commissioner may by order direct that any power conferred or any duly imposed on him by or under this Act shall, in such circumstances
and under such conditions, if any, as may be specified in the order, be exercised and performed also by any Corporation Officer or other
Corporation employee specified in the order.
394. Power to institute etc., legal proceedings and obtain legal advice. -
The Commissioner may-
xxx xxx xxx xxx
(e) defend any suit or other legal proceeding brought against the Corporation or against the Commissioner or a Corporation officer or other
Corporation employee in respect of anything done or omitted to be done by any one of them in his official capacity;
(h) institute and prosecute any suit or other legal proceeding or with the approval of the Corporation withdraw from or compromise any suit or any
claim for any sum not exceeding five hundred rupees which has been instituted or made in the name of the Corporation or of the Commissioner.
A perusal of the above provisions clearly shows that no separate resolution was required to be passed before filing of the appeal, Power had been
statutorily conferred on the Commissioner to file appeal and the said power could be and had been duly delegated to Yogesh Chander as found by
the lower appellate court itself. In this view of the matter, lower appellate court was not justified in non-suiting the Municipal Corporation without
deciding the appeal on merits. Decisions relied upon by the lower apeallate court, namely, Grih Chand v. Municipal Committee, Budhlada, 1979
P.L.R. 527 and Bawa Bhagwan Dass v. Municipal Committee and Ors., AIR 1943 Lah 318 have no application to the present case.
In view of the above, this appeal is allowed, decree of the lower appellate court is set aside and the case is remanded to the lower appellate court
for decision on merits in accordance with law. The parties through their counsel are directed to appear before the lower appellate court on
19.11.2001 for further proceedings. There will be no order as to costs,
3. Appeal allowed.