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TMI Blog1960 (1) TMI 42X X X X Extracts X X X X X X X X Extracts X X X X ..... ry 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 labeled on the spot under a seizure list which Shyamlal signed. A sum of ₹ 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. 2. On the aforesaid complaint, the appellant and his servant were put on trial. Their defence was that it was not a case of v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 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 himself was the only person competent 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. 6. 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 Court. 7. The present appeal has come to us on the aforesaid certificate. 8. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 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 Chairman of the Howrah ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ond 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 unlimited 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 gene ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 henceforth 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. 17. 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. 18. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 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, 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 a 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 537 is merely enabling in nature, and that any private person may institute a legal proceeding under the Municipal Act independent and irrespective of the provisions of the Act. 24. 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 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 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. 25. We may refer first to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llowed 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 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 cor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fficer 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. 29. Our attention has been drawn to four English decisions where a private ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 30. Lastly, there is the decision in The Queen v. Cubitt (1889) 22 Q.B.D. 622 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 sea-fishery 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 : If 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. 31. On a parity of reasoning, if anybody can institute a legal proceeding under the Calcutta Municipal Act, s. 537 thereof becomes practica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o bottles, one was sent for analysis of the sample, to the Public Analyst, West Bengal. On the report of the Analyst that the sample did not contain any butter fat at all and contained an excess of water, the Health Officer accorded sanction for the prosecution of the appellant and Missir. The complaint was signed by the Sanitary Inspector as well as the Health Officer. 37. 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 re-tried. 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 a certificate of fitness under Art. 134(1)(c) of the Constitution and filed this appeal. 38. Three points were argued before us. The first was that by the terms of the agreement and licence, the appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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 exercise or discharge of any power or duty vesting in or imposed upon the commissioners or any municipal officer or servant. 41. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and Conservatory Departments. The 20th December, 1949. S. K. Mukherjee, Chairman. 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, Chairman. IV. Howrah Municipality. Order. 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. V. Howrah Municipality. Order. 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 December, 1952. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 and thirty-seven special delegations. If the whole book were to be before us, these special delegations will show an enormous number of specially delegated powers. 45. 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. II 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. 46. It is contended, however, that the Order of April 7, 1951 (No. III) led to the cancellation of the Order of December 20, 1949 (No. II), 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 Order. No doubt, the Chairman stated that he delegated all his powers and fu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... effect of the Order of April 7, 1951, 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. 49. 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 office-holder or his successor. It was, however, argued that it came to an end because of time-limit imposed by the Chairman by his Order of April 7, 1951, (No. III). 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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