# BALLAVDAS AGARW ALA v. SHRIJ.C.CHAKRAVARTY

- **Citation:** [1960] 2 S.C.R. 739
- **Court:** Supreme Court of India
- **Decided:** 1960
- **Case number:** Criminal Appeal No. 159 of 1956
- **Bench:** S. K. Das, A. K. Sarkar, M. Hidayatullah
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/ballavdas-agarw-ala-v-shrij-c-chakravarty-1773
- **Pages:** 29

## Headnote

Criminal Trial-Prosecution for offence under Municipal Act--
Authority to initiate prosecution Delegation of-If private citizen
can file complaint-Calcutta Municipal Act, r923 (Ben. III of r923)
SS. I2 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 z, 1954 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 ta
sanction the prosecution. Under the Act the power to institute
.T anitary I5·
740
SUPREME COURT REPORTS [1960 (2)]
z960
a complaint vested in the Commissioners bnt they could delegate
the power to· the Chairman and the Chairman could also by a
BallavdasAgarwala general or special order in writing re-delegate the power to the
v.
Vice-Chairman or to any municipal officer. The question of the
Shri
delegation of their power by the Commissioners was not specifiJ. C. Chakravarty cally 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 passe.d 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
ExecutiYes 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, r952, 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 O\Vn
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 ~uthorities 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 dele$ate the same to the Vice-Chairman or to any municipal
•
<
;.
-
-
-
S.C.

## Text

_Characters 0–39,791 of 64,267. This is a partial read: ask again with offset=39791 for what follows._

•
-
-
S.C.R.
SUPREME COURT REPORTS
739
having been executed, the present suit filed. on October
18, 1939, is barred in so far as those properties are
concerned, and the Devasthanam cannot get possession
of them.
R. Muthammal
(Died)
Para1neswari
Both the Courts below have concurred in holding
Thayammal
that M. Picha Pillai must have got possession other- 5 b
v..
.
•
•
u raman1aswam1
wise than by execution of the decree, because even
Devasthanam
D.W. 2 not very friendly to the Devasthanam admitted
that M. Picha Pillai was at the time of his death in Hidayatullah J.
possession of all the suit properties. The two Courts
below also adverted to the fact that for the years,
Faslis 1338and1339 the 10th defendant paid the taxes,
and this would not happen if the heirs of M. Picha
Pillai were not in enjoyment. The fact that the patta
stood in the names of the original j~dgment-debtors
would not indicate anything, because mutations sometimes lag behind change of possession. In view of the
fact that the two Courts below have agreed on the
finding and there is evidence to support it, we see no
reason to interfere.
The question of mesne profits was not pressed,
and no other point having been argued, we hold that
the appeal has no merits. It will, accordingly, be
dismissed with costs.
Appeal dismissed.
BALLAVDAS AGARW ALA
v.
SHRIJ.C.CHAKRAVARTY
(S. K. DAS,' A. K. SARKAR and M. HIDAYATULLAH, JJ.)
Criminal Trial-Prosecution for offence under Municipal Act--
Authority to initiate prosecution Delegation of-If private citizen
can file complaint-Calcutta Municipal Act, r923 (Ben. III of r923)
SS. I2 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 z, 1954 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 ta
sanction the prosecution. Under the Act the power to institute
.T anitary I5·
740
SUPREME COURT REPORTS [1960 (2)]
z960
a complaint vested in the Commissioners bnt they could delegate
the power to· the Chairman and the Chairman could also by a
BallavdasAgarwala general or special order in writing re-delegate the power to the
v.
Vice-Chairman or to any municipal officer. The question of the
Shri
delegation of their power by the Commissioners was not specifiJ. C. Chakravarty cally 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 passe.d 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
ExecutiYes 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, r952, 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 O\Vn
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 ~uthorities 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 dele$ate the same to the Vice-Chairman or to any municipal
•
<
;.
-
-
-
S.C.R ..
SUPREME COURT REPORTS
741
officer.
The machinery provided in the Act must be followed in
If16o
enforcing its provisions, and it is against the tenor and scheme
of the Act to hold that s. 537 is merely enabling in nature.
Ballavdas Agarwala
Nazir Ahmed v. King Emperor, (1936) L.R. 63 I.A. 372.
v.
referred to.
Skri
Sisir Kumar Mitter v. Corporation of Calcutta. (1926) I.L.R. J.C. Chakravart>
53 Cal. 631, explained.
Keshabdeo Kedia v. P. Banerjee, Sanitary Inspector, Howrah
Municipality. A.LR. (1943) Cal. 31 and State v. Manilal Jethalal
A.LR. (1953) Born. 365, referred to.
Cole v. Coulten, 2 Ellis & Ellis 695, Buckler v. Wilson, (1896)
I Q.B.D. 83, The Queen v. Stewart, (1896) l Q.B.D. 300 and Giebler
v. Manning, (1906) l K. B 709, held inapplicable.
The Queen v. Cubitt. (1889) 22 Q.B.D. 622, relied on.
Per Hidayatullah, J. 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, l95L 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
1954:.
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.
S. K. DAS, J.-The appellant Ballavdas Agarwala
f
S. K. Das].
was the proprietor o 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
SUPREME COURT REPORTS "[1960 (2)]
z960
had taken out a vendor's license dated January 9,
B
-A
1 1952, by which he was permitted to sell or exhibit for
allavdas
garwa a
l
b
l b"d"
·
b
v.
sa e sweetmeats,
ete ,
1 1, cigarettes etc.,
ut not
Shri
specifically including butter, attbe Howrah goods shed.
]. c. Chakravarty On December 2, 1953, during the currency of the
--
license, the Health Officer of the Howrah.Municipality
s. K. Das J.
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
-
c.ustomers 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
\vhich 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
j
Howrah. The complaint was signed in token of
I
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 butfor was being sold to other
customers. The learned Magistrate acquitted both the
accused persons.
~
..
S.C.R.
SUPREME COURT REPORTS
743
The Administrator, Howrah Municipality, then
x96o
preferred an application in revision to the High Court
a-·
1
H . h C
"d
h
d
fBallav as,,garwa a
of Calcutta. The
1g
ourt set as1 e t e or er o
v
acquittal and ordered a retrial by another magistrate.
Sh.ri
At the retrial several points were taken on behalf J. c. Chakravarty
of the appellant one of which was that at the relevant
time the Health Officer had no power to sanction the
s. K. Das J.
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 the certificate
Das Gupta, J. giving the decision of the Division
Bench said:
"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 Dep~rtment and that power >vas 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
SUPREME COURT REPORTS [1960(2)]
'960
himself was the only person compent to exercise the
B ll d-A
1 powers of Commissioners under Section 537 of the
a av as
garwa a
. .
v.
Calcutta Mummpal Act.
1 c c~h~i
1
If, therefore, the proceedings unless instituted by
·
· ~avor Y the Commissioners in accordance with Section 537 of
s. K. Das J.
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 que~tion 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.-
The present appeal has come to us on the aforesaid
certificate.
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 Municipa~
'
-
--
...
--•
-
S.C.R.
SUPREME COURT REPORTS
745
Act, 1932 for his contention that the Chairman was
I 960
entitled to exercise all the powers vested in the Ballavdo1s Agaiwala
Commissioners and could delegate his powers to any
v.
other Municipal Officer. It appears now that the
Shri
relevant section is s. 12 of the Calcutta Municipal Act, J. c. Chakravarty
1923 as applied to Howrah. Under sub-section (1) of
-
s. 12, the Commissioners may by a resolution passed at s. K. Das J.
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 thereunder. Under
sub-section (2), the Chairman may by a general or
special order in writing redelegate 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 221 19571 W&&
9S
746
SUPREME COURT REPORTS
[1960 (2
1960
filed in the case.
This book is, however, of very little
-A
, use to us. It does not give the terms of the orders nor
Ballavdas
garwa~a
. d
I
.
.c
v.
their ates.
t contams a re;erence to orders under
Shri
other sections, but not under s. 537. The five orders
J. c. Chakravarty with which we are concerned were exhibited separately
and to those we now turn. T be first order is the one
5 · K. Das J.
dated February 6, 1948, by which the then Chairman
of the Howrah Municipality delegated to the Vice
Chairman all bis powers, duties and functions as
Chairman in respect of seven departments including
the Health Departn;ient. 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 pl,ace is
not known, but it is admitted that some time 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 charge:
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:'
'
-
I
•
..
-r
I -
S.C.R.
SUPREME COURT REPORTS
747
"I hereby revoke my order dated the 4th July,
I96°
1951, so far as it relates to the Health Department
-
which shall henceforth be direct under my charge until BallavdasAgarwala
further .orders.
This will take effect from 15th
s:~i
December, 1952."
]. c. Chakravarty
The question before us is-what is the effect of the
aforesaid five orders ? It is clear that by the order
5 · H. Das J.
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 Departments.
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 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 general order which does not affect the order dated
748
SUPREME COURT REPORTS [1960(2)]
r96o
December 20, 1949, which is a special order and for
11
-
1 this, the principle of generalia specialibus non derogant
Ba auda:~garwa a is invoked; secondly, it is said. that the time limit
Shri
imposed by the order dated April 7, 1951, related to
J. c. Chakrauarty such delegation as is made by that order itself; and
thirdly, it is said that if the time limit imposed by the
5· I<. Das J.
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
redelegated 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 term.s 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 othe:r exceptions, the order would
have said so.. The order does not say so; on the
contrary, it is expressed in language of the widest
i!,mplitude to include within itself all delegations of
power except those made in favour of the ViceChairman.
We are not impressed by the argument of administrative inconvenience. Obviously, the objeot 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
•
.-
... l -
•
•
S.C.R.
SUPREME COURT REPORTS
749
have only two orders dated July 4, 1951, and Decemz960
her 12, 1952. By order dated July 4, 1951, the new
-
·
Chairman delegated his powers to the Vice-Chairman Ballavdas Agarw"la
in respect of six departments including the Health
s~ri
Department, though the earlier delegation in favour J. c. Chakravarty.
of the Vice-Chairman was not subject to any time
limit. The order dated December 12, 1952, is imports. K. Dai].
ant. 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.
· 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 lega.l
proceedings under the Calcutta Municipal Act, 1923,
as in force in the Municipality of Howrah or under
any rule or byelaw made thereunder;
(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
thereunder which, under any enactment for the
time being in force, may lawfully be compounded;
(c) admit, compromise or withdraw any claim
made under the Ualcutta 1\'[unicipal Act, 1923, as in
r960
Ballavdas Agarwala
v.
Shri
]. C. Chakravarty
S. K. Das].
750
SUPREME COURT REPORTS [1960 (2))
force in the Municipality of Howrah or under any
rule or bye-law made thereunder; 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 construction.
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 38'r.
\
-
,
-
-
-
-
S.C.R.
SUPREME COURT REPORTS
751
clause (d) says "obtain such legal advice and assistance
I960
as they may from time to time think it necessary or B 11 d-A
la
•
.
.
a av as
garwa
or expedient to obtam etc." This obv10usly shows
v.
that the Commissioners are not compelled to obtain
Shri
legal advice. In the context, the use of the word J. c. Chakravarty
'may' is therefore appropriate. But the question still
remains-if the Commissioners wish to do any of the
5· K. Das f.
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 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 0f the provisions of this Act.
(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. 531.
There are other provisions of the Act which also
throw some light on the '-question. Section 531
752
SUPREME COURT REPORTS [1960(2)]
196o
provides for the appointment of Municipal Magistrates
JJallaudasAgarwalafor the trial of offences under the ~ct and the :ules or
v.
bye-laws made thereunder. Sect10n 532 provides for
ShYi
cognisance of offence by Municipal Magistrates having
J. c. Chakrauarty jurisdiction in Calcutta; section 533 gives power to
hear a case in the absence of the accused perso1~ ;
s. K. Das f.
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 ma.de 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
tha.t any private person may institute a legal proceeding under the Municipal Act independent and irrespective of the 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 :ao 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 tha.t the sections there considered were
'
'-
-
L
r
-
-
S.C.R.
SUPREME COURT REPORTS
753
obligatory and sanction or consent of the CommisI910
sioners was necessary. We have, however, seen no
-
decision directly bearing on s. 537 of the Calcutta Ballavdas AgarwMla
Municipal Act, 1923 except one (to which we shall
5~~;
presently refer), and that decision was given in an J. '" Chakrararty
entirely different context.
We may refer first to some decisions which deal
s. K. Das f.
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 (9) 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 1Jhe 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 Muuicipal
Act. In Sisir Kumar Mitter v. Corporation of Calcutta
( 5) it was observed :
"Section 537 of the Calcutta Municipal Act, as
we read it, is merely an enabling section, and the
powers given thereunder 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) I.L.R. II Cal. 566.
(2) (1926) I.L.R. 4 Rangoon 437.
(3) (193-t) l.L.R. 57 All. 412.
(f) A.I.R. 1959 S.C. 51.
(5) (1926) I.L.R. 53 Sal. 631.
96
754
SUPREME COURT REPORTS [1960(2))
z960
provisions of s. 537 are merely enabling provisions.
B 11
d-::;-
1 It is worthy of note, however, that the precise question
a av •:. garwa a for decision in that case was entirely different. The
Sh>i
question there raised was whether the provisions of
]. c. Chakravarty s. 248 of the Criminal Procedure Code were affected
or abrogated by s. 537 of the Calcutta Municipal Act.
· 5· K. Das J.
"What happened in that case was that the Sanitary
Inspector of ~he 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 obligatioμ 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.
(I) (1947) l K.B. 91.
\
-
-
•
....
S.C.R.
SUPREME COURT REPORTS
755
The next decision is that of Keshabdeo Kedia v.
I960
P. Banerjee, Sanitary Inspector, Howrah Municipa- 8 11 d-A
1
l .
) Th'
l
d
3
f h C l
M
. . 1 a av as
garwa a
ity1(1 •
rn re ate to ei. 5 5 o t e a cutta umcipa
v.
Act, and it was held that a magistrate was not entitled
shri
to act under s. 535(2) upon a complaint filed by the J. c. Chakravarty
Sanitary Inspector in his personal capacity in the
absence of anything to show that he was authorised
5· K. Das f.
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 ~omplaint 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 observations :
"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 Commissioner'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 Commi~sioner himself
(1) A.LR. (1943) Cal. 3r.
(2) A.LR. (1953) Born. 36,s.
756
SUPREME COURT REPORTS [1960 (2)]
r960
orr some responsible officer has had an opportunity of
-
applying his mind to the question as to whether a
Ballavdadg.,wala prosecution should or should not be instituted. But
5:,;
onee this has been done, there does not seem to be
J. c. Chakrava1ty any particular necessity for requiring that, if it is
decided to prosecute, the coviplaint must actually be
5· K. Das J.
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 powrir must be exercised by
him, or by an officer, to whom the Commissioner's
power is delegated. Th8 decision proceeded, however,
on a somewhat wide meaning given to the words
" take proceedings" that part of the decisim1, as to
the correctness of which we say nothing, does not
concern us here, because the words used in s.