1. Final judgement and order dated 21/22.11.2000 passed by the High Court of the
Judicature at Bombay in Writ Petition No. 1649 of 1997
The Corporation, the Standing Committee or any other committee, as the case
may be, shall obtain and take into consideration the remarks of the
Commissioner before making any resolution.
If the Commissioner is of the opinion that the resolution passed or decision
taken or any of the Committee is against the provisions of any law, for the time
being in force or may lead to wastage of municipal funds or seeks to divert the
funds allocated for any of the obligatory duties of the Corporation to some other
purpose or is against the policy of the State Government, he may, before
implementing the decision , seek the direction from the State Government and
the State Government shall, within forty five days from the date of the receipt of
such reference may by the Commissioner, issue direction to the Commissioner
whether such decision should be implemented or not and the direction disused
by the State Government shall be binding on the Corporation, or the concerned
Committee, as the case may be.
According to Section 451 of the BPMC Act, 1949, the execution of any
resolution of the corporation which is likely to lead to breach of peace or to
cause annoyance to the public, or to lead to abuse or misuse of or to cause waste
of municipal funds against the interests of the public, the State government is
empowered to suspend the execution of such resolution. The commissioner can
therefore refer this matter to the State government explaining the uproar in Pune
due to this perverse resolution of the standing committee. The government can
then apply its mind and take a view.
It is interesting to note that section 111 (for BMC) specifically says that
corporation shall hold the municipal fund in trust for the purposes of the Act
subject to the provisions contained in the Act. This means that the
Commissioner and all other municipal authorities are ‘trustees’ of the municipal
fund and they have to act as responsibly as trustees do.
“The Commissioner, in his capacity as a municipal authority, is charged with the
duty of and held responsible for implementing the decision of the Corporation,
the Standing Committee, the improvements Committee, the BEST Committee
and the Education Committee. If the Commissioner were merely a ministerial
officer, then this duty of the Commissioner would have been absolute. As we
read the entire provisions of he Act, we are not satisfied that the Commissioner
is merely a ministerial officer charged with the duty of implementing any or all
resolutions of the Corporation. In fact, it appears to us that the Commissioner,
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2. who is appointed by the State Government normally, is the watchdog appointed
by the State Government to keep a check on the actions of the Corporation and
ensure that the finances of the Corporation and legality of its actions are under
control. If not, he has been given independent powers under the Act to take
certain actions. The opening words of sub-section (3) says, “Subject, whenever
it is in this Act expressly so directed, to the approval or sanction of the
Corporation or the Standing Committee or the Improvements Committee, or the
Education Committee and subject also to all other restrictions, limitations and
conditions imposed by this Act, the entire executive power for the purpose of
carrying out the provision of this Act vests in the Commissioner…” Far from
treating the Commissioner as a ministerial officer at the beck and call of the
Corporation, the Act vests the entire executive power for carrying out the
purposes of the Act in the Commissioner subject to what is stated in the opening
words of sub-section (3). Conversely, clause (e) holds the Commissioner
responsible for implementing the decision of the Corporation, the Standing
Committee and other committees referred to therein. Thereafter comes the
proviso that “the Corporation, the Standing Committee or any other committee,
as the case maybe, shall obtain and take into consideration the remarks of the
Commissioner, before making any resolution.”
It is inconceivable that this mandatory requirement can be fulfilled in any
manner other than by a written requisition made to the Commissioner calling
upon him to offer his remarks on a proposed resolution, a written reply by the
commissioner giving his remarks and thereafter consideration thereof at a
properly called meeting. We are unable to accept the contention that the proviso
will be complied with if remarks called orally, and that too when the
Commissioner, accidentally or incidentally, happened to be present at meeting
and the Commissioner is called upon to make off-the-cuff remarks. Every
resolution passed by the Corporation has serious consequences, the councillors
or the Commissioner, are trustees of municipal property and municipal funds.
They must behave in a manner consonance with the discharge of this onerous
obligation cast upon them. Nothing short of serious consideration of the remarks
after calling for them from the Commissioner would discharge this obligation.
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