Mangulal Chunilal Vs. Manilal Maganlal
& ANR [1967] INSC 273 (23 November 1967)
23/11/1967 SIKRI, S.M.
SIKRI, S.M.
SHELAT, J.M.
HEGDE, K.S.
CITATION: 1968 AIR 822 1968 SCR (2) 401
CITATOR INFO :
R 1968 SC1339 (7)
ACT:
Bombay, Provincial Municipal Corporation Act,
1949 ss. 69 and 481-- Filing of complaint, who can-"Take
proceedings," meaning of.
HEADNOTE:
The appellant-licence inspector, filed a
complaint against the respondent. The appellant had obtained permission to file
the complaint from the Deputy Health Officer, who had been delegated the powers
under s. 69(1) of the Bombay Provincial Municipal Corporation Act, 1949, by the
Municipal Commissioner. The respondent was convicted, but, the High Court in
revision, set aside the conviction. In appeal to this Court, the appellant
contended that there was no limiting words in the order delegating the power to
the Deputy Health Officer that he should file a complaint himself 'and not
authorise others; and that- power to take proceedings includes power to
authorise others to institute proceedings in the context of the Act. Dismissing
the appeal, HELD : Only the authorities mentioned in s. 481 read with s. 69
could launch proceedings, against persons charged with offenses under the Act
or the rules, regulations or bye-laws made under it. A person who files a
complaint under the Act must show that he has the authority to file that
complaint and that authority cannot be conferred upon by an erroneous
interpretation long acquiesced. [406 D-F] The words "take
proceedings" cannot be interpreted. to mean "order proceedings to be
taken" because the word "take" is an English word and only a
meaning which it bears in the English language can be ascribed to it. [406 B-C]
Ballavdas Agarwal, v.j. C. Chakravartv, [1960] 2 S.C.R. 739, T. P. Thakur v.
Ratilal Motild Patel, [1968] 1 S.C.R. 455, followed.
Sitite v. Mainilal Jethalal, (1953)55 B.L.R.
377, disapproved.
CRIMINAL APPELLATE JURISDICTION : Criminal
Appeal No.
59 of 1965.
Appeal from the judgment and order dated
November 9, 1964 of the Gujarat High Court in Criminal Revision Application No.
145 of 1964.
B. R. Agaarwala, for the appellant.
R. H. Dhebar, for respondent No. 2.
The Judgment of the Court was delivered by
Sikri, J. This appeal by certificate granted by the High Court of Gujarat is
directed against the judgment and order of the said High Court in Criminal
Revision Application No.
145 of 1964 402 whereby the High Court
allowed the application and set aside the conviction and sentence of Manilal
Maganlal, one of the respondents before us. The only point involved in this
appeal is whether the licence inspector, Mangulal Chunilal, was competent to
file the complaint under s. 37 6 (1) (d) (i), read with s. 392 (1) (a), of the
Bombay Provincial Municipal Corporation Act, 1949, hereinafter referred to as
the Act.
The relevant facts are not now in dispute and
are as follows On October 10 , 1963, Mangulal Chuniial, licence inspector,
filed a complaint against Manilal Maganlal, hereinafter referred to as the accused,
alleging that the accused had carried on the work of blacksmith by
manufacturing machinery, spare parts and safe cupboards, without obtaining
licence. At the end of the complaint it was stated :
"I have obtained permission for filing
this complaint from the Medical Officer of Health by order no. dated
1-10-63." The licence inspector had applied to the Deputy Health Officer,
Ahmedabad Municipal Corporation, to accord permission to file the complaint as
offence under s. 392 (1) (a) of the Act had been committed. The Deputy Health
Officer noted:
"Permission is granted under Section
481(1)(a) of Chapter 30 of the Bombay Provincial Municipal Corporation Act of
1949 to file complaint for the offence committed in breach of the provisions of
law as shown in the above report." The Deputy Health Officer (including
Deputy Health Officer.
Food and Licence Branch) had been delegated
certain powers under S. 69(1) of the Act by the Municipal Commissioner.
The powers delegated to the Deputy Health
Officer include .
"Power to take proceedings against Sec.
481 (1) any person who charged with (a) (i) (iii) Any offence (i) Under section
392(i) and/or 392(2) of the B.P.M.C. Act 1949 for breach of provisions
mentioned in section below -- 164, 184(1)(a), 233(1), 297, 376, 377(1) 381,
383, 384".
403 It was contended before the High Court
that the complaint had been filed by the Licence Inspector whereas the
delegation under s. 69 of the Act was to the Deputy Health Officer to take
proceedings as provided in s. 481 of the Act. It was contended that the
expression 'take proceedings" in s. 481 means instituting in complaint and
does not mean causing a complaint to be filed. Raju, J., who heard the
revision, accepted this contention. He declined to follow the judgment of the
Bombay High Court in The State v. Manilal Jethalal(1) in which it had been held
that the words "take proceedings" meant "order proceedings to be
taken." The learned counsel for the appellant contends (1) that the
decision of the Bombay High Court in The State v. Manilal Jethalal(1) was
binding on the learned Judge in view of the full bench decision in State of
Gujarat v. Gordhandas Keshavji Gandhi(2); (2) that power to take proceedings
includes power to authorise others to institute proceedings in the context of
the Act and (3) that there were no limiting words in the order delegating the
power to the Deputy Health Officer that he should file a complaint himself and
not authorise others.
The respondents are unfortunately not
represented before us.
This Court has already held in T. P. Thakur
v. Ratilat Motilal Patel(1) that the judgment of the Full Bench of the Gujarat
High Court in State of Gujarat v. Gordhandas Keshavii Gandhi (2 ) was binding
on Raju, J. Following that judgment we hold that Raiu, J., was not entitled to
dissent from the judgment of the Bombay High Court in The State v. Manilal
Jethalal(1-).
Before dealing with the main point raised
before us it is necessary to set out the relevant provisions of the Act :
"S. 69(1). Subject to the provisions of
sub- sections (2) and (3), any of the powers, duties or functions conferred or
imposed upon or vested in the Commissioner or the Transport Manager by or under
any of the provisions of this Act may be exercised, performed or discharged,
under the control of the Commissioner or the Transport Manager, as the case may
be and subject to his revision and to such conditions and limitations, if any,
as may be prescribed by rules, or as he shall think fit to prescribe in a
manner not inconsistent with the provisions of this Act or rules, by any
municipal officer whom the Commissioner or the Transport Manager generally or
specially empowers by order .lm0 (1) (1953) 55 B.L.R. 377. (2) (1962) 3 Guj.
T-.R, 269.
(1)[1968] 1 S.C.R.455.
404 in writing in this behalf; and to the
extent to which any municipal officer is so empowered the word
"Commissioner" and the words "Transport Manager" occurring
in any provision in this Act, shall be deemed to include such officer.
S. 481.(1) The Commissioner may- (a) take, or
withdraw from proceedings against any person who is charged with- (i) any
offence against this Act or any rule, regulation or by-law;
(ii) any offence which affects or is likely
to affect any property or interest of the Corporation or the due administration
of this Act;
(iii) committing any nuisance whatever;
(b) compound any offence against this Act or
any rule, regulation or by-law which under the law for the time being in force
may legally be compounded, (c) defend any election petition brought under
section 16;
(d) defend, admit or compromise any appeal
against a ratable value or tax brought under section 406;
(e) take, withdraw from or compromise.
proceedings under sub-section (2) -of section
402. sub-sections (3) and (4) of section 439 and sections 391 and 41 6 for the
recovery of expenses or compensation claimed to be due to the Corporation;
(f) withdraw or compromise any claim for a
sum not exceeding five hundred rupees against an), person in respect of a
penalty payable under a contract entered into with such person by the
Commissioner, or, with the approval of the Standing Committee, any such claim
for any sum exceeding five hundred rupees;
(g) defend any suit or other legal
proceedings brought against the Corporation or against the Commissioner or a
municipal officer or servant in respect of anything done or omitted to be done
by them, respectively, in their official capacity;
(h) with the approval of the Standing
Committee, admit or compromise any claim, suit or legal proceeding brought against
the Corporation or against the Com 405 missioner or a municipal officer or-
servant, in respect of anything done or omitted to be done as aforesaid;
(i) with the like approval, institute and
prosecute any suit or withdraw from or compromise any suit or any claim other
than a claim of the description specltied in clause (f), which has been
instituted or made in the name of the Corporation or the Commissioner;."
It is not disputed that s. 69 enables the Commissioner- to delegate powers
duties or functions conferred or imposed upon him or vested in him to a
municipal officer. The Commissioner having delegated his powers to the Deputy
Health Officer, the question arises whether it is the Deputy Health Officer or
the Licence Inspector who should take proceedings against the accused within
the meaning of s. 481 (1) (a). It is not disputed that under subcls. (b), (c),
(d), (f) (g), (h) and (i) of s. 481 (1), the various actions contemplated in
these sub-clauses would have to be taken by the delegate himself. In other
words, he would have to institute a suit within sub-cl. (i) and admit or-
compromise any claim. suit or legal proceeding within sub-cl. (b), but it is
said that the word "take" has been deliberately used in sub-cls. (a)
and (e) to enable the delegate to entrust initiation of proceedings to another
person because otherwise it would be impossible to carry on the administration
of the municipality. It is said that thou- sands of complaints have to be filed
and it would be casting undue burden on the Deputy Health Officer to sign all
the complaints. We are not impressed by this argument.It is true that the word
"take" has various meanings but no dictionary or authority has been
placed before us to show that the word can mean "cause to be taken".
It seems to us that the word "take" was used because if the word
institute" had been used it may not have been appropriate to cover all
proceedings that can be taken under s. 481 (1)(a).
Bavdakar, J., had observed in The State v.
Manilal jetha- lal(1) :
" One can see easily why the words
"take" are used. It was desired to combine in one clause the two
powers, the power to launch proceedings and the power to withdraw proceedings,
and if the words "withdraw from proceedings" were used, it was not
easy to use the words ' order proceedings to be taken" in combination with
the words "withdraw proceedings." We are unable to accept this as
correct.
Bavdekar, J.. further observed (1) (1953) 55
B.L,R. 377-379.
406 "If the Legislature had in such a
case really wanted that the complaint should actually be either of the
Commissioner or an officer empowered by him, it would have been perfectly easy
to use the words which find place in several Acts, for example, "except
upon a complaint in writing of the Commissioner or an officer to whom he has
delegated his powers." It is true that if the language suggested by him
had been used no dispute would have arisen. But we are not free to interpret
the words "take proceedings" to mean "order proceedings to be
taken" because the word "take" is an English word and we can
only ascribe to it a meaning which it bears in the English language.
The learned counsel for the appellant says
that since the decision of the Bombay High Court in The State v. Manilal
Jethalal(1) no other decision has taken any other view and we should not
disturb the view which has prevailed since that decision. We are unable to
accept this contention.
This is not a case where a series of
decisions have taken a particular view and that view has been widely accepted
and various rights have accrued to parties acting on that view.
A person who files a complaint under the Act
must show That he has the authority to file that complaint and that authority
cannot be conferred upon him by an erroneous Interpretation long acquiesced in.
This Court held in Ballaivdas Agarwala v. J. C. Chakravarty(2) that a complaint
under the Calcutta Municipal Act, 1923, could only be filed by the authorities
mentioned therein and not by an ordinary citizen. Similarly, here it seems to
us that only the authorities mentioned in s. 481, read with s. 69, can launch
proceedings against persons charged with offenses under the Act or the rules,
regulations or bye-laws made under it.
This Court noticed the decision of the Bombay
High Court in Manilal Jethalal's case(1) in Ballavdas Agarwala v. J. C. Chakravarty(2)
and observed :
"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." We may mention that Hidayatullah, J., observed at p. 764 in
Ballavdas Agarwala's case (2 ) :
"An officer of the municipality must
himself perform hi-, duties created by statute or bye-law. He cannot delegate
them to others, unless expressly authorised in (1) (1953) 55 B.L.R. 377-379.
(2) [1960] 2 S.C R. 739.
407 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." We
agree with the above observations of Hidayatullah, J. On this point there does
not seem to have been any difference of opinion between him and the majority;
he differed only on the question whether on the facts in that case there was in
fact a delegation or not.
For the aforesaid reasons we dismiss the
appeal and maintain the order passed by the High Court.
Y.P. Appeal dismissed.
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