Ballavdas Agarwala Vs. Shri J. C.
Chakravarty  INSC 6 (15 January 1960)
CITATION: 1960 AIR 576 1960 SCR (2) 739
CITATOR INFO :
R 1968 SC 822 (10) R 1968 SC1339 (6,7) R 1969
SC 267 (5) R 1970 SC 7 (3)
Criminal Trial-Prosecution for offence under
Municipal Act--Authority to initiate prosecution Delegation of-If private
citizen can file complaint-Calcutta Municipal Act, 1923 (Ben. 111 of 1923) ss.
12 and 537.
The appellant was convicted of selling
adulterated butter under ss. 406 and 407 read with s. 488 of the Calcutta
Municipal Act as extended to the Municipality of Howrah on a complaint filed by
the Sanitary Inspector on January 2, 954 which was signed in token of sanction
by the Health Officer of the said municipality. The appellant contended that
the trial was vitiated for want of a valid sanction because at the relevant
time the Health Officer of the municipality did not have any power to sanction
the prosecution. Under the Act the power to institute 740 a complaint vested in
the Commissioners but they could delegate the power to the Chairman and the
Chairman could also by a general or special order in writing re-delegate the
power to the Vice-Chairman or to any municipal officer. The question of the
delegation of their power by the Commissioners was not specifically raised, but
it was urged that the Chairman had by certain subsequent orders revoked the
delegation in favour of the Health Officer. The first order passed by the
Chairman on February 6, 1948, delegated to the Vice-Chairman all his powers,
duties and functions in respect of seven departments including the Health
Department. The second order was passed on December 20,1949, by which the
Chairman delegated his powers and functions to the Health Officer to order
prosecution and to sign prosecution sheets in respect of cases concerning the
Health and Conservancy Departments. The third order was made on April 7, 1951,
on the eve of the new election, and stated: "Till the election of
Executives by the New Board I delegate all my powers and functions except those
that are delegated to the Vice-Chairman to the respective officers of
departments". After the election, the new Chairman passed an order on July
4, 1951, delegating all his powers, duties and functions in respect of six
departments including the Health Department to the Vice-Chairman. The last
order was passed on December 12, 1952, which said: "I hereby revoke my
order dated the 4th July 1951, so far as it relates to the Health Department
which shall henceforth be direct under my charge until further orders. This
will take effect from 15th December, 1952". The appellant urged that the
third order modified the second and placed a time limit on it and that the delegation
lapsed on the expiry of the time. The respondent contended that the third order
did not affect the second and that in any case the Health Officer could file
the complaint as a private citizen.
Held, (per S. K. Das and A. K. Sarkar, jj.)
that the Health Officer was not empowered as the duly delegated authority to
institute criminal proceedings against the appellant on the date on which he
made the complaint. The third order made by the Chairman on April 7, 1951,
modified the second order by making the delegation thereunder in favour of the
Health Officer effective only till the election of the new Executive. The
object of the third order was to leave the new Chairman free to pass his own
orders of delegation and not to fetter his discretion in any way. The orders
passed by the new Chairman did not delegate the power to the Health Officer.
Held, further, that a complaint under the
Calcutta Municipal Act, 1923, as applied to Municipality of Howrah, can only be
filed by the authorities mentioned therein and not by an ordinary citizen.
Section 537 of the Act provides that the Commissioners may institute, defend or
withdraw from legal proceedings under the Act; under S. 12 the Commissioners,
can delegate their functions to the Chairman, and the Chairman can in his turn
delegate the same to the Vice- Chairman or to any municipal 741 officer. The
machinery provided in the Act must be followed in enforcing its provisions, and
it is against the tenor and scheme of the Act to hold that S. 537 is merely
enabling in nature.
Nazir Ahmed v. King Emperor, (1936) L.R. 63
Sisir Kumar Mitter v. Corporation of
Calcutta. (1926) I.L.R. 53 Cal. 631, explained.
Keshabdeo Kedia v. P. Banerjee, Sanitary
Inspector, Howrah Municipality. A.I.R. (1943) Cal. 31 and State v. Manilal
Jethalal A.I.R (1953) Bom. 365,referred to.
Cole v. Coulten,2 Ellis & Ellis 695,
Buckler v. Wilson, (1896) 1 Q.B.D. 83, The Queen v. Stewart, (1896) 1 Q.B.D.
300 and Giebler v. Manning, (1906) 1 K.. B
709, held inapplicable.
The Queen v. Cubitt. (1889) 22 Q.B.D. 622,
Per Hidayatullah, 1. The sanction given by
the Health Officer was valid as the delegation of authority, to him by the
order of December 20, 1949, was not taken away by subsequent orders. The order
of December 20, 1949, which specially conferred the power to order prosecution
to sign prosecution sheets was a special order and was unaffected by the
general order of April 7, 1951. The later order put a time limit only on
delegations made under that order and not on orders made before.
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 159 of 1956.
Appeal from the Judgment and Order dated June
25, 1956, of the Calcutta High Court in Criminal Revision No. 870 of 1956,
arising out of the judgment and order dated May 5, 1956, of the Sessions Judge,
Howrah, in Criminal Petition 8 of 1956 against the judgment and order dated
February 20, 1956, of the Magistrate First Class, Howrah, in Case No. 1-C of
N. C. Chatterjee S. K. Kapur and Nanak Chand
Pandit, for the appellant.
S. C. Mazumdar, for the respondent.
1960. January 15. Judgment of S. K. Das and
A. K. Sarkar, JJ. was delivered by S. K. Das, J., Hidayatullah, J.
delivered a separate Judgment.
I S. K. DAS, J.-The appellant Ballavdas
Agarwala was the proprietor of a restaurant in the Railway premises at Howrah
Railway Station within the Municipality of Howrah, and his servant Shyamlal
Missir was in charge of that restaurant.
Under an agreement with the Railway
authorities, the appellant- 742 had taken out a vendor's license dated January
9,1952, by which he was permitted to sell or exhibit for sale sweetmeats,
betel, bidi, cigarettes etc., but not specifically including butter, at the
Howrah goods shed.
On December 2, 1953, during the currency of the
license, the Health Officer of the Howrah Municipality along with his Sanitary
Inspector and a peon visited the establishment and found that butter was being
sold from glass jars standing on a table between the customers and the vendor.
The appellant was then absent and Shyamlal was dealing with the customers.
The Sanitary Inspector then took three
samples from an one- pound slap of butter which was taken out of a glass jar
that was fully exposed to public view and which stood open on the selling
counter. The samples were taken -in clean bottles, sealed and labelled on the
spot under a seizure list which Shyamlal signed. A sum of Rs. 2 was also given
to Shyamlal as the price of the sample butter. One of the samples was later
sent to the Health Department of the Government of West Bengal for analysis and
report. The Public Analyst of West Bengal sent a report stating that the butter
in question was grossly adulterated and did not contain any butter fat, and
also contained a large excess of water. On January 2, 1954, the Sanitary
Inspector filed a complaint before the magistrate of Howrah asking for the
issue of summons to the appellant and his servant Shyamlal for an offence under
sections 488/406 and 407 of the Calcutta Municipal Act, 1923, as extended to the
Municipality of Howrah. The complaint was signed in token of sanction by the
Health Officer of the Municipality.
On the aforesaid complaint, the appellant and
his servant -were put on trial. Their defence was that it was not a case of
voluntary sale, nor of a sale of butter. The learned Magistrate who tried the
case in the first instance held that no case of selling adulterated butter was
made out, and the reason which the learned Magistrate gave for his finding was
that the butter purchased by the Sanitary Inspector was not purchased from the
jar from which butter was being sold to other customers. The learned Magistrate
acquitted both the accused persons.
743 The Administrator, Howrah Municipality,
then preferred an application in revision to the High Court of Calcutta. The
High Court set aside the order of acquittal and ordered a retrial by another
magistrate. At the retrial several points were taken on behalf of the appellant
one of which was that at the relevant time the Health Officer had no power to
sanction the prosecution. This time the trying magistrate found against the
appellant on all questions of fact, and on the question of sanction he referred
to certain orders of the Chairman of the Municipality and held that the power
delegated to the Health Officer by one of those orders had not been revoked
and, therefore, the Health Officer was competent to sanction the prosecution.
The appellant was accordingly convicted under
ss. 406 and 407 read with s. 488 of the Calcutta Municipal Act and sentenced to
a fine of Rs. 200/- or in default simple imprisonment for 30 days. The
appellant then moved the learned Sessions Judge of Howrah for a reference to
the High Court, but without success. An application in revision was then moved
in the High Court, but this was summarily dismissed by a Single Judge. From
that summary order of dismissal, the appellant asked for and obtained from a
Division Bench of the High Court a certificate for leave to appeal to this
Court under Article 134(1)(c) of the Constitution. While granting th
certificate Das Gupta, J.
giving the decision of the Division Bench
On the 4th July, 1951, in my opinion the
Health Officer of the Municipality had no longer in him the powers to order
prosecution in any case regarding the Health Department and that power was at
that time vested in the Vice-Chairman of the Municipality Shri Sankar Lal
Mukherjee, as a result of delegation by the Chairman by the order, Exhibit-D.
On the 12th December, 1952, the new Chairman Shri K. C. Datta passed a further
order revoking his previous order dated 4th July, 1951, so far as it related to
the Health Department.
The position, therefore, after 12th December,
1952, was that the Chairman of the Howrah Municipality 744 himself was the only
person complent to exercise the powers of Commissioners under Section 537 of
the Calcutta Municipal Act.
If, therefore, the proceedings unless
instituted by the Commissioners in accordance with Section 537 of the Calcutta
Municipal Act cannot form the legal basis of any conviction for contravention
of any provision of that law, the conviction in this case must be held to have
no legal basis." He expressed the view that the question of the true
import and effect of the provisions of s. 537 of the Calcutta Municipal Act, 1923
was a question of general public importance which should be settled by this
The present appeal has come to us on the
On behalf of the appellant it has been argued
that (1) the appellant was not responsible for the sale, because the licence
did not authorise the sale of butter and (2) there was no " adulteration
" of butter, because there was no butter fat in the sample analysed. On
these two points we are in agreement with the conclusion reached by our learned
brother Hidayatullah, J. and we do not think it necessary to repeat what he has
said in support of that conclusion.
We proceed now to consider the question of
the power and authority of the Health Officer to sanction the prosecution in
the present case. On this question we have reached a conclusion different from
that of our learned brother. It is not disputed before us that the sanctioning
of prosecution for selling or storing adulterated food is a matter which
concerns the Health Department of the Municipality and any delegation of powers
in respect of the Health Department will include the power to sanction
prosecution for selling adulterated food, unless otherwise expressly stated in
the order of delegation.
In the High Court, at the stage of the
application for a certificate for leave to appeal, counsel for the Municipality
relied on s. 51 of the Bengal Municipal 745 Act, 1932 for his contention that
the Chairman was entitled to exercise all the powers vested in the
Commissioners and could delegate his powers to any other Municipal Officer.
It appears now that the relevant section is
s. 12 of the Calcutta Municipal Act, 1923 as applied to Howrah. Under
sub-section (1) of s. 12, the Commissioners may by a resolution passed at a
special meeting delegate to the Chairman any of their powers, duties and
functions 'under the Calcutta Municipal Act, 1923 as in force in the
Municipality of Howrah or under the Bengal Municipal Act, 1884 or under any
rule or bye-law made there under. Under sub-section (2), the Chairman may by a
general or special order in writing re-delegate to the Vice-Chairman or any
Municipal officer any of the powers, duties or functions which have been
delegated to him by the Commissioners. We may, therefore, proceed on the basis,
as did the High Court with reference to s. 51 of the Bengal Municipal Act, 1932
that the Commissioners could delegate to the Chairman their powers under s. 537
by a resolution passed at a special meeting, and the Chairman in his turn could
redelegate those powers, by a general or special order, to the Vice-Chairman or
a Municipal officer. The question before us is-did he do so by a valid,
subsisting order at the relevant time ? The relevant date is the date of the
complaint which was made on January 2, 1954. Therefore, we have to see what the
position was on that date. The first difficulty in the way of the respondent is
that it led no evidence in this case to show that the provisions of s. 12(1) of
the Calcutta Municipal Act, 1923 were complied with, and the Commissioners by a
resolution passed at a special meeting delegated their powers under s. 537 to
the Chairman. Even if we ignore this difficulty on the ground that no question
regarding the powers of the Chairman was raised and, therefore, no evidence was
given on the point, there is a second and, in our opinion, insuperable
difficulty. An Order Book of the Chairman of the Howrah Municipality containing
extracts of orders passed by the Chairman of the Municipality from May 9, 1938
to April 22, 1957, was 95 746 filed in the case. This book is, however, of very
little use to us. It does not give the terms of the orders nor their dates. It
contains a reference to orders under other sections, but not under s. 537. The
five orders with which we are concerned were exhibited separately and to those
we now turn. The first order is the one dated February 6, 1948, by which the
then Chairman of the Howrah Municipality delegated to the Vice Chairman all his
powers, duties and functions as Chairman in respect of seven departments
including the Health Department. This was followed by a second order passed on
December 20, 1949, which was in the following terms :
" I hereby delegate my powers and
functions to the Health Officer to order prosecution, to sign prosecution
sheets in respect of cases concerning the Health and Conservancy
Departments." The third order came on April 7, 1951, on the eve of the new
election. This third order, so far as it is relevant for our purpose, stated:
" Till the election of Executives by the
New Board I delegate all my powers and functions except those that are
delegated to the Vice-Chairman to respective officers of departments." The
exact date on which the new election took place is not known, but it is
admitted that sometime between April 7, 1951 and July 4, 1951, the New
Executives had come into being. On July 4, 1951 the New Chairman passed the
following order :
" I hereby delegate to the
Vice-Chairman, Sri Sankar Lal Mukherjee, all my powers, duties and functions as
Chairman in respect of the following departments which are placed under his
1. Assessment Department (Except power under
Section 146 C. M. Act.
2. Health Department.
3. Building Department.
4. Lighting Department.
5. Accounts Department.
6. Cash Department.
The fifth order was passed on December
12,1952 which said 747 I hereby revoke my order dated the 4th July, 1951, so
far as it relates to the Health Department which shall henceforth be direct
under my chargeuntil further orders. This will take effect from 15th December,
1952." The question before us is-what is the effect of the aforesaid five
orders ? It is clear that by the order dated February 6, 1948, the Chairman
delegated his powers to the Vice-Chairman in respect of the Health Department,
and by the next order dated December 20, 1949, he delegated his powers to the
Health Officer in respect of certain particular matters, such as, ordering
prosecution and signing complaints concerning the Health and Conservancy
On April 7, 1951, however, the Chairman
passed another order which imposed a time limit by the expression: "Till
the election of the Executives by the new Board." The question is if this
time limit affected the operation of the second order dated December 20, 1949
so that it would come to an end with the election of the new Executives, and
the position thereafter would be governed by the orders dated July 4, 1951, and
December 12, 1952. Ex Facie, it appears to us that the order dated April 7,
1951, affects the operation of the second order dated December 20, 1949. The
two orders, placed side by side, cannot stand together unless the earlier order
is read as modified by the latter order. The earlier order delegated the power
of the Chairman in respect of some particular matters mentioned therein to the
Health Officer ; the latter order states that it delegates all the powers of
the Chairman to respective officers of Departments till the election of the new
Executives. We have emphasised the word ' all' occurring in the latter order,
as it must include the particular powers referred to in the earlier order. It
cannot be that in the same field the two orders will operate-one un- limited
and the other limited by a time factor. It has, however, been submitted to us
that they do not operate in the same field and three reasons have been given firstly,
it is said that the order dated April 7, 1951, is a general order which
does-not affect the order dated 748 December 20, 1949, which is a special order
and for this, the principle of generalia specialibus non derogant is invoked;
secondly, it is said that the time limit imposed by the order dated April 7,
1951, related to such delegation as is made by that order itself; and thirdly,
it is said that if the time limit imposed by the order dated April 7, 1951,
applies even to earlier administrative orders, then there would be great
inconvenience by such orders coming abruptly to an end as the new Executives
come into existence.
We shall now deal with these reasons. We do
not think that the question is one of the application of the principle of
generalia specialibus non derogant. Apart from any doubt that may arise as to
whether such a principle is applicable to orders by which the Chairman red
legated powers delegated to him by the Commissioners, we think that the real
answer to the question must be found in the words used in the order. The order
dated April 7, 1951, makes an exception in favour of the Vice-Chairman ; it
says "except those that are delegated to the Vice-Chairman." This
obviously has reference to the delegations already made in favour of the
Vice-Chairman, because the order makes no new delegation in favour of the
Vice-Chairman. It states in terms that the time limit applies to all
delegations except those made in favour of the Vice-Chairman. Only one
exception is made, and if the intention was that there would be other
exceptions, the order would have said so. The order does not say so; on the
contrary, it is expressed in language of the widest amplitude to include within
itself all delegations of power except those made in favour of the
We are not impressed by the argument of
administrative inconvenience. Obviously, the object of the order of April 7,
1951, was to leave the new Chairman free to pass his own orders of delegation
and not to fetter the discretion of the new Executives in any way ; that is why
in the matter of delegation a time limit was imposed.
We do not have in the records full details of
all orders of delegation made by the new Chairman. We 749 have only two orders
dated July 4, 1951, and December 12, 1952. By order dated July 4, 1951, the new
Chairman delegated his powers to the Vice-Chairman in respect of six
departments including the Health Department, though the earlier delegation in
favour of the Vice-Chairman was not subject to any time limit. The order dated
December 12, 1952, is important. It not merely revoked the order dated 4, 1951,
but said that "the Health Department shall hence-forth be direct under my
charge until further orders." If earlier special orders regarding the
Health Department were subsisting on December 12, 1952, the Chairman would not
have used the words which he used on that date.
We are, therefore, of the view that in the
absence of a fresh order of delegation of which there is no evidence in the
record, the Health Officer of the Howrah Municipality was not empowered as the
duly delegated authority to institute criminal proceedings against the
appellant on the date on which he made the complaint.
Whether as an ordinary citizen he could file
the complaint takes us to the next question-are the provisions s. 537 merely
enabling or are they obligatory in the sense that no legal proceeding under the
Calcutta Municipal Act, 1923 as in force in the Municipality of Howrah, can be
instituted except in accordance with the provisions of that Act ? It is
necessary to read at this stage s. 537. It is in these terms:
"The Commissioners may- (a)institute,
defend, or withdraw from legal proceedings under the Calcutta Municipal Act,
1923, as in force in the Municipality of Howrah or under any rule or byelaw
made there under;
(b)compound any offence against the Calcutta
Municipal Act, 1923, as in force in the Municipality of Howrah or against any
rule or bye-law made there under which, under any enactment for the time being
in force, may lawfully be compounded;
(c)admit, compromise or withdraw any claim
made under the Calcutta Municipal Act, 1923, as in 750 force in the
Municipality of Howrah or under any rule or bye-law made there under; and (d)
obtain such legal advice and assistance as they may from time to time think it
necessary or expedient to obtain for any of the purposes referred to in the
foregoing clauses of this section, or for securing the lawful exercise or
discharge of any power or duty vesting in or 'imposed upon the Commissioners or
any Municipal officer or servant.
On behalf of the appellant it has been urged
before us that the provisions of s. 537 are obligatory, and the principle
invoked in aid of this construction is that adopted by the Privy Council in
Nazir Ahmad v. King Emperor (1) viz. that where a power is given to do a
certain thing in a certain way, the thing must be done in that way or not at
all. In other words, the argument of learned counsel for the appellant is not
that the word 'must' must necessarily be read for the word may' in s. 537, but
that if a legal proceeding is to be instituted under the Municipal Act in
question, it must be done in accordance with the provisions of the Act and not
otherwise. On behalf of the respondent, however, the contention is that s. 537
is merely enabling in nature, as the use of the word may' shows, and the
general principle embodied in the Code of Criminal Procedure of taking
cognisance of an offence on a complaint by even a private person is not in any
way affected by s. 537.
These are the rival contentions which fall
for consideration and we are of the view that the construction put on the
section- on behalf of the appellant is the sounder and more acceptable
The section talks of various acts which the
Commissioner may do and these acts have been put in four categories under
clauses (a), (b), (c) and (d). We are primarily concerned with clause (a),
which talks of three things-" institute, defend, or withdraw from legal
proceedings under the Calcutta Municipal Act, 1923." It can hardly be
doubted that the section does not compel the Commissioners to institute, defend
or withdraw from legal proceedings; for example, (1) (1936) L.R. 63 I.A. 372 at
751 clause (d) says "obtain such legal
advice and assistance as they may from time to time think it necessary or
expedient to obtain etc." This obviously shows that the Commissioners are
not compelled to obtain legal advice. In the context, the use of the word may'
is therefore appropriate. But the question still remains-if the Commissioners
wish to do any of the acts mentioned in s. 537, must they do so in accordance
with the provisions of the Act ? We think that they must; otherwise s. 537
becomes clearly otiose. What is the necessity of s. 537 if the Commissioners
can do the acts mentioned therein independent of and in,% manner other than
what is laid down therein? Learned counsel for the respondent suggested that s.
537 was enacted by way of abundant caution to enable the Municipality, a body
corporate, to spend money on the institution of legal proceedings etc. We are
not impressed by this argument. Like all other Municipal Acts, the Calcutta
Municipal Act, 1923 has a section (section 5) which constitutes the
Municipality into a body corporate and there are detailed provisions about
Finance, Loans, Accounts, Taxation etc. Section 84 of the Calcutta Municipal
Act, 1923 lays down:
" 84 (1) The moneys from time to time
credited to the Municipality shall be applied in payment of all sums, charges
and costs necessary for carrying out the purposes of this Act, or of which the
payment is duly directed or sanctioned by or under any of the provisions of
(2)Such money shall likewise be applied in
payment of all sums payable out of the Municipal Fund under any other enactment
for the time being in force." Obviously, therefore, no other separate
provision for expenditure of money in connection with the acts mentioned in s.
537 was necessary by way of abundant caution. We are, therefore, unable to
accept as correct the reason given by learned counsel for the respondent for
the insertion of s. 537.
There are other provisions of the Act which
also throw some light on the question. Section 531 752 provides for the
appointment of Municipal Magistrates' for the trial of offences under the Act
and the rules or bye- laws made there under. Section 532 provides for
cognisance of offence by Municipal Magistrates having jurisdiction in Calcutta;
section 533 gives power to hear a case in the absence of the accused person; section
534 prescribes a period of limitation for prosecution and section 535 says who
can make a complaint of the existence of any nuisance.
Under s. 535 the complaint can be made either
by the Municipality or any person who resides or owns property in Calcutta. The
above provisions are followed by ss. 537, 538 and 539. Section 537 gives power
to the Municipality to institute legal proceedings etc.; s. 538 deals with
suits against the Municipality and s. 539 provides the usual indemnity clause.
An examination of the aforesaid provisions
shows that the Calcutta Municipal Act,, 1923 provides inter alia for a
machinery for proceedings before Magistrates and other legal proceedings. All
these provisions can have one meaning only, viz. that the machinery provided in
the Act must be followed in enforcing these provisions. It would, we think, be
against the tenor and scheme of the Municipal Act to hold that s. 537 is merely
enabling in nature, and that any private person may institute legal proceeding
provisions of the Act.
We now turn to such authorities as have been
brought to our notice. We may, say at once that no decision directly in point
has been brought to our notice. It is well to remember, however, that the
phraseology adopted in different Municipal Acts is not the same. Some Municipal
Acts have adopted a phraseology which leaves no doubt in the matter;
e.g. s. 375 of the Bihar and Orissa Municipal
Act, 1922 which says-"No prosecution for any offence shall be instituted
without the order or consent of the Commissioners Section 353 of the Bengal
Municipal Act, 1884 was in similar terms. Having regard to the phraseology so
adopted, there are decisions which say that the sections there considered were
753 obligatory and sanction or consent of the Commissioners was necessary. We
have, however, seen no decision directly bearing on s. 537 of the Calcutta
Municipal Act, 1923 except one (to which, we shall presently refer), and that
decision was given in an entirely different context.
We may refer first to some decisions which
deal not with a Municipal Act but other Acts. Sections 82 and 83 of the Indian Registration
Act, 1908 have given rise to a divergence of views, which need not detain us: see
Gopi Nath v. Kuldip Singh (1) Nga Pan Gaing v. King Emperor(2) and Emperor v.
Muhammad Mehdi and Others (3). We do not think that the said provisions in the
Indian Registration Act, 1908 are in pari materia, and the decisions given on
the terms of those sections are not of much assistance in solving the problem
before us. There is a decision of this Court on which learned counsel for the
respondent has placed some reliance. Dr. Sailendranath Sinha and Another v. Josoda
Dulal Adikary and Another(4). That decision dealt with ss. 179 and 237 of the
Indian Companies Act, 1913 and it was held that there was nothing in those
sections which indicated that if a liquidator took action without a direction
of the court, that action would be illegal or invalid. The decision proceeded
on the terms of the sections there considered and is of no help in construing
s. 537 of the Calcutta Municipal Act, 1923.
Now, we come to the decisions under the
Municipal Act. In Sisir Kumar Mitter v. Corporation of Calcutta it was observed
"Section 537 of the Calcutta Municipal
Act, as we read it, is merely an enabling section, and the powers given there
under to do the various acts specified therein can, in our opinion, only be
exercised in accordance with the provisions of the- Code of Criminal
Procedure." Learned counsel for the respondent relies on these
observations in support of his contention that the (1) (1885) 1 L.R. 11 Cal.
566. (2) (1926) I.L.R. 4 Rangoon 437.
(3) (1934) I.L.R. 57 All. 412. (4) A.I.R.
1959 S.C. 51.
(5) (1926) I.L.R. 53 Cal. 631.
96 754 provisions of s. 537 are merely
enabling provisions. It is worthy of note, however, that the precise question
for decision in that case was entirely different. The question there raised was
whether the provisions of s. 248 of the Criminal Procedure Code were affected
or abrogated by s. 537 of the Calcutta Municipal Act. What happened in that
case was that the Sanitary Inspector of the Corporation as the complainant
filed a petition of withdrawal but the magistrate rejected the application. On
a later date the accused was absent, and a warrant of arrest was issued against
him. The accused then moved the High Court, and the main ground taken was that
the magistrate should have allowed the withdrawal; because s. 537 of the
Calcutta -Municipal Act must be held to have modified the provisions of s. 248
of Criminal Procedure Code and taken away the discretion of the magistrate not
to permit withdrawal of the case. This contention was negatived, and it was
held that s. 248 of Criminal Procedure Code was- neither abrogated nor modified
by s. 537 of the Calcutta Municipal Act. It was incidentally observed that the
Corporation being a creature of the statute, it was necessary to give it
specific power to institute, defend or withdraw from legal proceedings. We do
not read the decision as deciding the question if a private person can
institute a legal proceeding under the Calcutta Municipal Act independent of
the provisions of that Act. It decided merely the short point that s. 248 of
Criminal Procedure Code was not modified nor abrogated by s. 537 of the
Calcutta Municipal Act; this clearly was right, because s. 537 does not compel
the Municipality to to withdraw from a legal proceeding nor does it impose any
obligation on the Court to accept such withdrawal. The other observation made
therein appear to us to be obiter, and it is unnecessary for us to consider the
correctness of those observations, though learned counsel for the appellant
relying on The Minister of Works and Planning v. Henderson and Others (1) has
contended that the mere fact of incorporation without reservation confers on a
body corporate the privilege of suing and the liability to be sued.
(1) (1947) 1 K.B. 91.
755 The next decision is that of Keshabdeo
Kedia v. P. Banerjee, Sanitary Inspector, Howrah Municipality(1). This -related
to s. 535 of the Calcutta Municipal Act, and it was held that a magistrate was
not entitled to act under s. 535(2) upon a complaint filed by the Sanitary
Inspector in his personal capacity in the absence of anything to show that he
was authorised by the Chairman of the Municipality or was complaining on behalf
of the Municipality or resided or owned property in Calcutta. This decision
helps the appellant to the extent that it holds that the right of a private
person to make a complaint is cut down by s. 535.
In The State v. Manilal Jethalal (2), ss. 481
and 69 of the Bombay Provincial Municipal Corporations Act (59 of 1949) came in
for consideration. Section 481 of that Act gave the Commissioner power to
"take", or withdraw from, proceedings in respect of an offence
committed under the Act. The complaint in that case was filed by the Jilla
Inspector, and the argument was that he was not authorised by the Commissioners
to "take" proceedings. This argument was dealt with in the following
"Now, it is quite true that the object
of s. 69, sub-s. (1), is to empower the Commissioner to delegate his powers
under the Act to other Municipal officers, with a view that the Commissioner
may not himself be burdened with duty of deciding whether any action should be
taken against a person, who, it is alleged, has committed an offence either
against the Act or the rules. It is also true that whenever the Act gives any
power to a Commissioner, the power must be exercised by him, or by an officer,
to whom the Com- missioner's power is delegated under the provisions of s. 69.
But we do not think that it would be correct to restrict the meaning of the
words "take proceedings" to actually filing a complaint. The object
of s. 481 is that whenever it is alleged that any person has committed an
offence under the Municipal Act, or under the rules framed under the Act, he
should not be prosecuted, unless either the Commissioner himself (1) A.I.R.
(1943) Cal. 31.
(2) A.I.R. (1953) Born. 365.
756 or some responsible officer has had an
opportunity of applying his mind to the question as to whether a prosecution
should or should not be instituted. But once this has been done, there does not
seem to be any particular necessity for requiring. that, if it is decided to
prosecute, the complaint must actually be lodged by the Commissioner, or the
officer, to whom his powers are delegated. It is quite true that that words
" take proceedings" may mean to lodge the complaint oneself. But we
think that that is not the only meaning which can be given to these words. It
also means to do an act by which a prosecution would be lodged." This
decision also help the appellant in so far as it lays down that whenever the
Act gives any power to a Commissioner, the power must be exercised by him, or
by an officer, to whom the Commissioner's power is delegated. The decision
proceeded, however, on a somewhat wide meaning given to the words " take
proceedings" that part of the decision,, as to the correctness of which we
say nothing, does not concern us here, because the words used in s. 537 -of the
Calcutta Municipal Act are different.
Our attention has been drawn to four English
decisions where a private person was held competent to make a complaint in
respect of (1) consumption of refreshments in places of public resort, (2) sale
of margarine" (3) acts of cruelty to animals and (4) sale of unsound meat:
Cole v. Coulton (1);
Buckler v. Wilson (2); The, Queen v. Stewart
(3); Giebler v. Manning (4). All these four decisions proceeded on the terms of
the statutes under which the offences were alleged to have been committed and
it was held that those statutes did not contain any provisions which made it
obligatory that the complaint should be made by a particular authority in a
particular manner. They do not really help the respondent to establish his contentions
that in spite of s. 537, Calcutta Municipal Act, a private person can institute
a legal proceeding under the said Act. They take us back (1) 2 Ellis &
Ellis 695; 121 E.R. 261. (2) (1896) 1 Q.B.D.
(3) (1896) 1 Q.B.D. 300. (4) (1906) 1 K.B. 709.
751 to the point from which we started;
namely, what is the true nature and import of s. 537 of the Calcutta Municipal
Act. If it is obligatory in the sense explained earlier, the appellant is
entitled to succeed. If it is merely enabling, then the respondent is entitled
to succeed. The decision in The Queen v. Stewart (1)on which learned counsel
for the respondent strongly relied, dealt with the provisions of the Diseases
of the Animals Act, 1894.
Lindley, L.J. said:
" Reading those sections together, they
in fact affirm the right of any person to prefer an information in most
significant terms. Is there anything in the Act or the Order which so clearly
restricts that right that we ought to say that in this case no one but the
borough council had the right to take proceedings? I can find nothing of the
kind." Giebler v. Manning (2) was decided on the terms of s. 47, sub-s.
(2) of the Public Health (London) Act, 1891 and the question was-could a
private person institute proceedings under s. 47, sub-s. (2) ? -Lord Alverstone
C. J. answered the question in the following observations:
" Having regard to the object of the
statute, the protection of the public against the offering of diseased meat for
sale, I think that if it had been intended to limit the right to take
proceedings for the recovery of penalties to a limited class of persons, such
as medical officers and sanitary inspectors, words would have been introduced
into the section taking away from private persons the right to lay informationís
under the section." Lastly, there is the decision in The Queen v. Cubitt
This was a case under the Sea Fisheries Act,
1883 (46 and 47 Vict. c. 22), s. 11 of which said: "The provisoes of this
Act............ shall be enforced by seafishery officers." It was held
that the effect of the above words was that no one except a sea-fishery officer
could prosecute for an offence against the Act and a rule calling upon the
justices to hear and determine a summons for an offence against the Act taken
out by a private individual, was discharged. Lord Coleridge, C. J. observed:
(1) (1896) 1 Q.B.D. 300. (2) (1906) 1 K.B.
(3) (1889) 22 Q.B.D. 622.
758 any one may enforce the Act, s. 11 is
useless. I do not think that negative words are required to exclude proceedings
by persons other than sea-fishery officers. For instance, if an Act provided
that the Attorney-General was to sue for a penalty, no one else could sue for
it; it is obvious that if everyone could sue for the penalty the
Attorney-General could sue for it, so that on that view of the statute the
clause enabling him to sue would be unnecessary and useless." On a parity
of reasoning, if anybody can institute a legal proceeding under the Calcutta
Municipal Act, s. 537 -thereof becomes practically useless. Even without that
section, the Municipality could do the acts specified therein, and it is
difficult to understand the necessity of a provision like s. 537 unless the
intention was to confer a power on the Municipality which power must be
exercised in accordance with the provisions of the Act and not otherwise.
It was faintly suggested that the absence of
a complaint by the Commissioners or the Chairman or a duty delegated authority
was a mere error or irregularity which could be cured under s. 537 Criminal
-Procedure Code. Our attention was also drawn to s. 79 of the Calcutta
Municipal Act, 1923.
In the view which we have taken the absence
of a proper complaint was not a mere defect or irregularity; it affected
jurisdiction and initiation of proceedings.
For these reasons, we allow the appeal and
set aside the conviction and sentence passed against the appellant. The fine,
if paid, must be refunded to the appellant.
HIDAYATULLAH J.-In this appeal which has been
filed on a certificate of fitness under Art. 134 (1)(c) of the Constitution
granted by the Calcutta High Court, the appellant challenges his conviction
under ss. 406 and 407 read with s. 488 of the Calcutta Municipal Act as applied
to Howrah, and the sentence of fine of Rs. 200 (in default, simple imprisonment
for 30 days).
The appellant, Ballabhdas Agarwala, is the
proprietor of a chain of restaurants, and one such restaurant is at the Howrah
Railway Station. He had 759 entered into an agreement with the railway, and had
taken out a vendor's licence No. 54 of 1951 dated January 9, 1952, by which he
was permitted to sell or exhibit for sale, sweetmeats, betel, bidi, cigarettes,
tea, cake, bread and biscuits and parched gram at Howrah goods shed between
January 6, 1951 and December 31, 1953.
On December 2,1953, the Health Officer, a
Sanitary Inspector and a peon of the Howrah Municipality visited the
restaurant, whore the servant of the appellant, one Shyamlal Missir, was in
charge. Onthe counter, there was a jar containing " butter ". This
,butter " was being sold to customers. TheSanitary Inspector took three
samples of this " butter " from an one-pound slab and put them into
three clean bottles, which were sealed and labelled. Missir was paid Rs. 2 as
the price. One bottle was left with Missir as required by the rules. Of the
remaining -two bottles, one was sent for analysis of the sample, to the Public
Analyst, West Bengal. On the report of the Analystthat the sample did not
contain any butter fat at alland contained an excess of water, the Health Officeraccorded
sanction for the prosecution of the appellant and Missir. The complaint was
signed by the Sanitary Inspector as well as the Health Officer.
The case was tried summarily, and the
Magistrate acquitted both the accused, because, in his opinion, the samples
were taken not from the jar from which butter was being sold to the other
customers but from another jar. The High Court, however, set aside the order,
and the case was retried. It resulted in the conviction and sentence of the
appellant, as stated above. The Sessions Judge (appellate jurisdiction) who was
moved by a criminal motion rejected the motion. The appellant then moved the
High Court in revision, but Debabrata Mookerjee, J. dismissed it summarily. The
appellant applied for and obtained certificate of fitness under Art. 134 (1)
(c) of the Constitution and filed this appeal.
Three points were argued before us. The first
was that by the terms of the agreement and licence the appellant was not
authorised to sell butter, and 760 thus he was not responsible for the sale in
question. It was contended that the sale might have been made by Missir on his
own account. This contention is without substance.
That there was a sale of the seized article
at the restaurant of the appellant goes without saying. Sections 406 and 407 of
the Calcutta Municipal Act make the sale of adulterated or misbranded article
an offence, and every person who sells such article directly or indirectly,
himself or by any other person is liable. Even though such sale might be
outside the permit of the vendor's licence, the seized article was, in fact,
sold. The words of the sections vicariously fasten the responsibility on
-masters for the acts of the servants, and the maxim, qui facit per alium facit
per se applies. The finding is that the sale was for and on behalf of the
proprietor, and in view of the -clear words of the section, he would be
Next, it was argued that this was not a case
of adulteration " at all, because there was, in fact, no butter fat, in the
sample analysed. Reference was made to a decision of the Punjab High Court in
Mangal Mal v. The State (1) in support of the contention that the prosecution
for the sale of " adulterated " butter was defective. No doubt, the
ordinary sense of " Adulteration " connotes the mixing of deleterious
or other substance with the main basic article; but the definition in the Act
has been widened to include even those articles where the contents do not
include the basic substance either wholly 'or partly. In view of the
definition, this line. of criticism was rightly not pressed.
The last point is the main argument in this
case, on the strength of which the certificate was obtained. The argument is
that the complaint presented to the Court in this case was by an unauthorised
person and was thus no complaint at all. The argument embraced a consideration
of certain sections of the Calcutta Municipal Act, 1923, as applied to Howrah
and of the Bengal Municipal Act, 1932, and the notifications issued under them.
The first section to which reference (1) A.I.R. 1952 Pun. 140.
761 was made is s. 537 of the Calcutta
Municipal Act in its application to Howrah Municipality. It reads thus:
"The Commissioners may- (a) institute,
defend or withdraw from legal proceedings under the Calcutta Municipal Act,
1923, as in force in the Municipality of Howrah or under any rule or by-law
made there under;
(b) compound any offence against the Calcutta
Municipal Act, 1923, as in force in the Municipality of Howrah or against any
rule or by-law made there under which, under any enactment for the time being
in force, may lawfully be compounded;
(c) admit, compromise or withdraw any claim
made under the Calcutta Municipal Act, 1923, as in force in the Municipality of
Howrah or under any rule or by-law made there under; and (d) obtain such legal
advice and assistance as they may from time to time think it necessary or
expedient to obtain, for any of the purposes referred to in the foregoing
clauses of this section, or for securing the lawful exereise or discharge of
any power or duty vesting in or imposed upon the Commissioners or any municipal
officer or servant.
" It is contended for the appellant that
the Commissioners are the only body of persons who could have instituted the
complaint. In reply, it is pointed out that under s. 12 of the Calcutta
Municipal Act as applied to Howrah, the Commissioners can delegate their
functions to a Chairman by a resolution passed at a special meeting, and the
Chairman can also by a general or special order in writing, re-delegater any of
the delegated powers to the Vice-Chairman or to any municipal officer. This
power of delegation authorises both the Commissioners as well as the Chairman
to delegate or re-delegate, as the case may be, their powers under the Bengal
Municipal Act also. The Divisional Bench of the Calcutta High Court referred to
s. 51 of the Bengal Municipal Act, 1932 as enabling delegation, but that
section has no application, in view of the provisions of s. 542 of the Calcutta
Municipal Act, which repeals s. 51 of the Bengal 97 762 Municipal Act in its
application to the Howrah Municipality.
I have thus only s. 12 of the Calcutta
Municipal Act in its application to the Howrah Municipality to consider, and as
summarised above, it permits delegation of powers from the Commissioner to the
Chairman and from the Chairman to the Vice-Chairman or any other officer of the
It was by virtue of this section that the
Chairman was presumably delegated the powers of the Commissioners, though no proof
has been given in this case. No point was made of the lack of this evidence,
and I need say nothing about it.
If it had been raised, the prosecution would
have led evidence, if available. But without this objection having been raised
at an appropriate stage, it is impossible to say now that it is well-founded.
It is, however, in the re- delegation of the powers from the Chairman to the
other officers of the Municipality that the question, whether such delegation
was existing on the date on which the prosecution was initiated against the
appellant, has arisen.
A number of notifications must now be set
out, because it is contended that the later notifications rescind or modify
those issued earlier:
"Howrah Municipality order.
I hereby delegate to the Vice-Chairman, Dr.
Beni Chandra Dutta, all my powers, duties and functions as Chairman in respect
of the following departments which are placed under his charge:- 2. Health
The 6th February, 1948. S. K.
I hereby delegate my powers and functions to
the Health Officer to order prosecution, to sign prosecution sheets in respect
of cases concerning the Health and Conservatory Departments.
763 The 20th December, 1949. S. K. Mukherjee,
III Howrah Municipality.
Order, Till the election of Executives by the
New Board I delegate all my powers and functions except those that are
delegated to the Vice-Chairman to respective officers of departments.........
The 7th April, 1951. S. K. Mukherji,
I hereby delegate to the Vice- Chairman, Sri
Sankar Lal Mukherji, all my powers, duties and functions as Chairman in respect
of the following departments which are placed under his charge.
2. Health Department.
The 4th July, 1951. K. C. Dutta, Chairman.
" It is admitted in this case that the election of the Executives by the
New Board took place between April 7, 1951 and July 4, 1951.
I hereby revoke my order dated the 4th July,
1951, so far as it relates to Health Department which shall henceforth be
direct under my charge until further orders. This will take effect from 15th
The 12th December, 1952. (Sd.) K. C. Dutta,
Chairman. " This was the position of the Orders on December 2, 1953 (the
date of the offence) and also on January 5, 1954, when the complaint was filed.
Now, the municipal corporation is a
collection of persons, and is invested with a legal personality by the statute
under which it is created. The statute 764 gives it perpetual succession and a
power to act in many ways. Among, its multifarious functions is an inherent
power to sue or be sued by its corporate name, but the statutes creating such
corporations aggregate provide expressly for such power. In the absence of
provision to the contrary, the body corporate in such matters must act as a
corporation. The inconvenience of having the entire body to meet and -decide
upon every individual case is apparent, and the law, therefore, provides for
delegation of the functions of the body corporate to the Chairman. Even there,
the burden on the Chairman's time would be enormous, and thus the law enables
him to re-delegate, in his turn, his delegated powers to others. Section 12 of
the Calcutta Municipal Act enables the Chairman to delegate his powers, duties
or functions to the Vice-Chairman or to any municipal officer. Such officers
are to be distinguished from mere servants who carry out orders but do not
exercise definite Municipal do. This distinction was made in Abbott's
Corporations, Vol. 11, p. 1456 etc., and is to be found reflected also in the
Act under consideration.
An officer of the municipality must himself
perform his them to others, unless expressly authorised in this behalf. The Act
does not so empower the officers to delegate their functions in their turn, and
thus an officer to whom the power is delegated by the Chairman must perform
them himself. A glance at the Act under consideration will show the numerous
functions with which the Act invests the Chairman. In addition, the Chairman is
invested with the functions delegated by the Commissioners. In most municipalities
(if not all), the Chairman maintains an order book in which he designates the
officers to 'whom his functions are delegated. In the present case, there are
extracts from the orders of the Chairman from May 9, 1938 to April 22, 1957
(Ex. A). These extracts show only the powers and functions delegated to the
Engineer, Water Works Overseers, and they run the course of thirteen pages of
small print in the Paper Book and involve one hundred 765 and thirty-seven
special delegations. If the whole book were to be before us, these special
delegations will show an enormous number of specially delegate,. powers.
These functions cannot be performed by any
but the officers concerned and are not taken away every time the Chairman
passes an order investing by a general order his functions, in the
Vice-Chairman, or withdraws them from him. Notification No. 11 quoted above was
a special delegation, and would presumably figure in the order book as an item
in the duties of the Health Officer specially delegated to him. After this
delegation, it was the Health Officer and Health Officer alone who could
exercise this power.
It is contended, however, that the Order of
April 7, 1951 (No. 111) led to the cancellation of the Order of December 20,
1949 (No. 11), or at least imposed a time limit till the election of the new
Board. I am afraid this is not a correct interpretation of the No doubt, the
Chairman stated that he delegated all his powers and functions to the
respective officers of the departments till the election of the new Board; but
the officers of the Department are invested with both administrative and
special powers. In my opinion, a distinction must be made between delegation of
a power to do special acts by a special order, and delegation of a general
character which can only be interpreted generally as applicable to
administrative control. Section 12 itself contemplates two kinds of orders, and
it cannot be gainsaid that the Order of December 20, 1949 (No. 11) was a
special Order, while the Order of April 7, 1951, was a general one.
The first Order (No. 1 dated February 6,
1948) delegated all the powers of the Chairman in respect of the Health and
other Departments to the Vice- Chairman. It did not mean that the order book
(Ex. A) came to an end; nor did it mean that from February 6, 1948, it was the
Vice-Chairman who alone could do all that is mentioned in the thirteen pages
printed in the Paper Book and what is presumably there regarding other
departments. Delegation of administrative powers is one thing, and delegation
of 766 power to do some specific act or acts is quite another. The general
order in favour of the Vice-Chairman (No. 1) would not cut down the special
orders of the Chairman. The general order cannot be read as special, because
generalia verba sunt generaliter intelligenda, and generalities never derogate
from specialties. It only granted the residuary powers which were not covered
by the special delegations from time to time. No doubt, the word used is
"all", but the whole intent and purpose of the delegation must be
borne in mind. Qui haeret in litera haeret in cortice. (Broome's Legal Maxims,
9th Edn., p. 443). The rules of interpretation of statutes only follow rules of
interpretation of deeds and instruments and not vice versa.
To hold otherwise would mean that after the
order of February 6, 1948 (No. 1), all functions, duties and powers including
those specifically mentioned in the order book came to be centred in the
Vice-Chairman. It was he alone who could inspect and examine house drains (s.
275), approve the site and position of the cesspools (s. 279), issue or serve
notices (s. 503), inspect the service pipes (R. 5 (3)), examine the water pipes
(R. 6)so on and so forth. And yet, this would be the effect of the Order of
February 6, 1948, if the effect of the Order of April 7, 195 1, on the Order of
December 20, 1949, is, as is claimed. It may be contented that if that is the
effect of the Order, we can declare it to be so ; but one reaches this result
only if one disregards the distinction between special and general orders, and
there is no principle of interpretation on which it can be rested.
The special delegation order of December 20,
1949, could only come to an end if it was withdrawn either expressly or by
necessary implication. No doubt, it was a delegation by Mr. s. K. Mukherjee,
and he ceased to hold office later; but the delegation made by him would not
fall by that reason alone. The delegation was not personal to Mr. Mukherjee but
was made by virtue of office and it could only cease to be operative if
cancelled in the same manner by the same officeholder or his successor. It was,
however, argued that it came to an end because of a time limit imposed by 767
the Chairman by his Order of April 7, 1951 (No. 111). That Order stated that
powers and functions except those delegated to the Vice-Chairman were to be
exercised till the election of the Executives by the new Board. But the
time-limit was imposed on powers delegated by that Order. This is clear from
the language employed :
" Till the election of Executives by the
New Board I delegate all my powers and functions...... to respective officers
of departments." The contention is that this Order had the effect of
imposing a time-limit on all delegations made even before. This general order
did not have this effect on a special order for the reasons stated. The
delegation of the power to order prosecution and to sign prosecution sheets was
specially conferred by the Order of December 20, 1949 (No. 11), and was not
revoked by the general order which could not be read specially ; nor was it
intended that this power was to have a time limit. By "officers of the
department" was not meant the officers on whom special powers were
conferred to do special acts. The Order quoted above is in general terms, and
puts a time limit on the delegation made by that order. It says nothing about
delegations of a special kind already in existence, or that the general order
was to be in suppression of all special orders. It does not, in terms, seek to
affect them either expressly or even by implication. In my opinion, the special
delegation made by the Order of ]December 20, 1949 (No. 11), remained
unaffected, and thus enables the Health Officer to file the complaint.
In this view of the matter, it is unnecessary
to decide whether s. 537 of the Calcutta Municipal Act is merely enabling or
mandatory, and whether in the absence of a proper delegation, the Health
Officer or other officers of the Municipality or any private person could have
initiated the prosecution in such a case.
I would, therefore, hold that the appeal has
no force, and that it should be dismissed.
ORDER OF COURT In view of the judgment of the
majority the appeal is allowed.