Judgment:
P.D. Dinakaran, C.J.
1. The appellant has come up in appeal being aggrieved by the order passed by the learned Single Judge dated 19.09.2007 in W.P. No. 7585/2007 dismissing the petition as bereft of merit.
2. Petitioner is a lessee of vacant land situated at the junction of commissariats road and Markham Road, Shoolay, having taken the same on lease for a period of 99 years from the respondent Corporation under a registered lease deed dated 25.01. 1956. The said land was leased to the petitioner for putting up a Kalyana Mantapa. The petitioner, for various reasons could not put up the Kalyanamantapa till date. The Deputy Commissioner of Bangalore Mahanagara Palike ('BBMP' for short) purporting to terminate the lease issued notice to the petitioner on 31.10.1987 under the Karnataka Public Premises (Eviction of Unauthorised occupants) Act 1974 ('Act' for short) calling upon the petitioner to show cause why an eviction order should not be made. Petitioner replied to the said notice on 19.11.1987. However, the BBMP instituted the proceedings under the Act.
2.1 The objections raised by the petitioner notwithstanding, the competent officer under the Act passed an order of eviction Under Section 5(1) of the 'Act' by the order dated 28.05.1994. Aggrieved by the order, petitioner filed an appeal before the Civil Court, Bangalore in M.A. 50/1994. The said appeal was allowed by the civil Court on 02.06.1997. The 'BBMP' approached this Court in W.P. 33417/1997. This Court allowed the writ petition and remitted the matter back to the Court below for fresh disposal. On remand, the Court below passed the order dated 17.02.2007 dismissing the appeal filed by the appellant herein and giving three months time to vacate the premises. This order dated 17-2-07 was impugned before learned Single Judge. The learned Single Judge having dismissed the writ petition by order dated 19-9-07, the petitioner is before us in this writ appeal.
3. We have heard Sri. Tarakaram, learned senior counsel appearing for appellant and perused the records.
4. The only point urged before the learned Single Judge by the learned Counsel for the petitioner is that the determination of the permanent lease and the consequent direction by the Commissioner to vacate the premises is without authority of law inasmuch as, the original lease deed was executed by the Corporation, whereas the notice determining the lease is issued by the Commissioner.
5. The learned single Judge, on appreciation of the submission with reference to the provisions of the Act, came to the conclusion that the Commissioner has the requisite power to determine the lease acting Under Section 5 of the Act. The learned Senior counsel, having reiterated the same ground before us, it is imperative that we refer to the relevant provisions of the BBMP Act to determine the issue raised by the learned Senior Counsel.
6.1. Section-2(6) of the BBMP Act defines the Corporation as 'Corporation means a Corporation established under this Act.' Section-64 of the BBMP Act stipulates the functions of the Commissioner thus:
64. Functions of the Commissioner: (1) Subject, whenever it is this Act expressly so directed, to the approval or sanction of the Corporation or the Standing Committee concerned and subject also to all other restrictions, limitation and conditions imposed by this Act or by any other law for the time being in force, the executive power for the purpose of carrying out the provisions of this Act and of any other law for the time being in force which imposes any duty or confers any powers on the Corporation shall vest in the commissioner, who shall also:
(a) Perform all the duties and exercise all the powers imposed or conferred upon him by or under this Act or by any other law for the time being in force;
(b) xxxx
(2) Any powers, duties and functions conferred or imposed upon or vested in the Corporation by any other law for the time being in force shall, subject to the provisions of such law, to be exercised, performed or discharged by the Commissioner.
(emphasis supplied)
6.2. A conjoint reading of Section 64(1) and (2) of the BBMP Act makes it obvious that the executive power for the purpose of carrying out the provisions of the Act is vested in the Commissioner. He shall perform all the duties and exercise all the powers under the Act. The Legislature having framed the provisions of the BBMP Act delegating the powers to the executive for carrying out the policy and advance the purposes of the Act, the executive authority so authorised is entitled to perform the duties and exercise all the powers necessary to advance the legislative policy.
6.3. The Apex Court had occasion to deal with the question whether the Legislature could delegate to the Executive Authority ancillary and subordinate powers necessary for carrying out the policy and purposes of the Act as may be necessary to make the Legislation complete, effective and useful. The Apex Court answered the issue thus:
Under the Constitution, the power to legislate is with the legislature. The said power of making laws, therefore, cannot be delegated by the legislature to the executive. In other words, a legislature can neither create a parallel legislature nor destroy its legislative power. The essential legislative function must be retained by the legislature itself. Such function consists of the determination of legislative policy and its formulation as a binding rule of conduct. But it is also equally well settled that once the essential legislative function is performed by the legislature and the policy has been laid down, it is always open to the legislature to delegate to the executive authority ancillary and subordinate powers necessary for carrying out the policy and purposes of the Act as may be necessary to make the legislation complete, effective and useful.
(emphasis supplied)
6.4. As such, the Commissioner of BBMP being the Chief Executive has the power and authority to determine the lease and pass the order impugned in the writ petition. The exercise of the power by commissioner as aforesaid not being called in question on any other premise, the challenge to the order impugned in the writ petition has to fail. Therefore, for the reasons stated above, we do not find any merit in this appeal and it is accordingly dismissed.