# K. M. KANAVI v. THE STATE OF MYSORE

- **Citation:** [1968] 3 S.C.R. 821
- **Court:** Supreme Court of India
- **Decided:** 1968-04-18
- **Case number:** Criminal Appeal No. 145 of 1965
- **Bench:** Snau, Smil.AT, V. Bbargava
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/k-m-kanavi-v-the-state-of-mysore-4347
- **Pages:** 8

## Headnote

821
Bombay Municipal Boroughs A.ct,
(18 of 1925)-Section 23A.(2),
(3) and s. 200(1)-Prosecution and conviction of miring President for
disobeying orders of State Government to hand ov~r charge--Procedure
prescribed by s. 200( 1) mandatory.
Section 23A(3) of the Bombay Municipal Boroughs Act, 1925, makes
it an offence if a retiring President to whom a direction has been issued
by the Staie Go~ern'!'ent to hand over charge of his office does not com•
ply ";!th such direct!on and under s. 200(1)
the authorities who "may
direct any . prosecution for punishment of any person offending against
the provisions of the Act are !he Standing Cominittee and the Chief
Officer.
The appellant who was removed from the office of Presidentship re1fused to obey the order of the State Government directing him to hand
over charge to the newly elected President.
He was prosecuted and Convicted for an offence under s . .23A(3 ), not on the direction of the Standing Committee or the Chief Officer as required by s. 200(1) but on a
complaint filed at the instance of the State Government by the newly
elected President. The High Court, dismissing revision application against
the order of conviction, took the view that s. 200( 1) was only an enabling provision and it could not be held to be exhaustive of the authorities
who could make directions for .initiation of such . proceedings. In appeal
to this Court,
HELD : The conviction must be set aside. The Scheme of the Act
and the purpose of s. 200 ( 1) make it clear that if any proceeding for
punishment of any person for contravention ·of any of the provisions of
the Act is to be instituted, it must be instituted in the manner laid down
in s. 200( 1) of the Act and in that manner only. The word "may" was
intended to give a discretion to the Standing Committee or the Chief
Officer to make directions for taking proceedings. only when they considered it appropriate that such a direction should be made ·and to avoid
compelling the Standing Committee or the Chief Officer to make· such
directions in all cases. rl the interpretation of the High Court were to be
accepted it would mean that this provision
was totally unnecessary. because, there would. be no need to confer power on the Standing Com·
mittee or the Chief Officer to make such
directions if such directions
could be made or proceedings instituted at the instance of any private
individual. 1826 C-D. Fl
Ballt.vdass A.garwala v. Shri 1. C, Chokravarty, [1960) 2 S.C.R. 739
Mangulal Chunilal v. Manilal Magan/al and Another, Criminal
Appeal
No. 59 of 1965 decided on 23-11-1967, followed :
The State v. Monllal lethalal, (19S3) SS B.L.R. 377, referred to.
Section 200(1), as it stands at present. is clearly applicable even to a
proceeding for punishment i:Jf a retiring President under s. 23A( 3) even
though it might
look
anomalous
that
the
prosecution
in
such
822
SUPREME COURT REPORTS
(1968) 3 S.C.R.
circumstances bas to be ordered by the Chief Officer wbo was his subordi·
A
nate at least during the time when he was working as the President. 1be
remedy lies in suitable amendment of s. 200( I). (828 El

## Text

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K. M. KANAVI
v.
THE STATE OF MYSORE
April 18, 1968
(S. M, Snau, J. M, Smil.AT AND V. BBARGAVA, JJ.)
821
Bombay Municipal Boroughs A.ct,
(18 of 1925)-Section 23A.(2),
(3) and s. 200(1)-Prosecution and conviction of miring President for
disobeying orders of State Government to hand ov~r charge--Procedure
prescribed by s. 200( 1) mandatory.
Section 23A(3) of the Bombay Municipal Boroughs Act, 1925, makes
it an offence if a retiring President to whom a direction has been issued
by the Staie Go~ern'!'ent to hand over charge of his office does not com•
ply ";!th such direct!on and under s. 200(1)
the authorities who "may
direct any . prosecution for punishment of any person offending against
the provisions of the Act are !he Standing Cominittee and the Chief
Officer.
The appellant who was removed from the office of Presidentship re1fused to obey the order of the State Government directing him to hand
over charge to the newly elected President.
He was prosecuted and Convicted for an offence under s . .23A(3 ), not on the direction of the Standing Committee or the Chief Officer as required by s. 200(1) but on a
complaint filed at the instance of the State Government by the newly
elected President. The High Court, dismissing revision application against
the order of conviction, took the view that s. 200( 1) was only an enabling provision and it could not be held to be exhaustive of the authorities
who could make directions for .initiation of such . proceedings. In appeal
to this Court,
HELD : The conviction must be set aside. The Scheme of the Act
and the purpose of s. 200 ( 1) make it clear that if any proceeding for
punishment of any person for contravention ·of any of the provisions of
the Act is to be instituted, it must be instituted in the manner laid down
in s. 200( 1) of the Act and in that manner only. The word "may" was
intended to give a discretion to the Standing Committee or the Chief
Officer to make directions for taking proceedings. only when they considered it appropriate that such a direction should be made ·and to avoid
compelling the Standing Committee or the Chief Officer to make· such
directions in all cases. rl the interpretation of the High Court were to be
accepted it would mean that this provision
was totally unnecessary. because, there would. be no need to confer power on the Standing Com·
mittee or the Chief Officer to make such
directions if such directions
could be made or proceedings instituted at the instance of any private
individual. 1826 C-D. Fl
Ballt.vdass A.garwala v. Shri 1. C, Chokravarty, [1960) 2 S.C.R. 739
Mangulal Chunilal v. Manilal Magan/al and Another, Criminal
Appeal
No. 59 of 1965 decided on 23-11-1967, followed :
The State v. Monllal lethalal, (19S3) SS B.L.R. 377, referred to.
Section 200(1), as it stands at present. is clearly applicable even to a
proceeding for punishment i:Jf a retiring President under s. 23A( 3) even
though it might
look
anomalous
that
the
prosecution
in
such
822
SUPREME COURT REPORTS
(1968) 3 S.C.R.
circumstances bas to be ordered by the Chief Officer wbo was his subordi·
A
nate at least during the time when he was working as the President. 1be
remedy lies in suitable amendment of s. 200( I). (828 El
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
145 of 1965.
Appeal by special leave from the judgment and order dated
January 15, 1965 of the Mysore High Court in Cr. Revision
B
Petition 299 of 1964.
H. R. Gokhale and R. B. Datar, for the appellant.
R. Gopalakrishnan, and S. P. Nayar, for the respondent.
The Judgment of the Court was delivered by
Bhargna, J. The appellant, K. M. Kanavi, was the President
of the Municipal Borough of Gadag Betgeri froll) 11th January,
1960 to 15th March, 1963. He was removed from the President·
ship on i5th March, 1963 by an Order passed by the Government of Mysore for neglect of duty and incapacity under section
21 (2) of the Bombay Municipal Boroughs Act, 1925 (No. XVIH
of 1925) (hereinafter xeferred to as "the Act") which was applicable to Gadag Betgeri, even though it was situated in the State
of Mysore, because it was earlier a part of the State of Bombay.
On the next day, i.e., on 16th March, 1963, the Government
passed an order superseding the Borough.
The appellant filed
two writ petitions challenging these two orders of his removal and
supersession of the Borough.
The order - of supersession was
quashed by the High Court of Mysore by its judgment dated 10th
April 1963 in Writ Petition No. 492/1963 reported in The President, Gadag-Betgeri Municipal Borough v. State of Mysore(').
Thereafter, elections were held for !he office of the President, because the appellant had ceased to be the President under the order
of removal.
One Malashetti was elected as the President of the
Borough on 22nd April, 1963. On 25th April, 1963, the new
President asked the appellant to hand over all the papers, documents and property belonging to the Municipal Administration.
On 2nd May, 1963, the appellant sent three keys and two files
of papers by registered parcel to the new President.
The new
Pre.oident returned it on the ground that those articles had not been
delivered to him in person by the appellant and he considered it
unsafe to take delivery of the registered parcel. When sending
this parcel, the appellant wrote an accompanying letter in which
he specifically stated that he was retainin~ certain papers as they
were needed by him for his writ petition which was pending against
his order of removal.
Thereafter, on 20th June, 1963, the Slate
Government made an order under sub-s. (2) oj s. 23A of the
Act directing the appellant to hand over charge of all the paper•
(1) [1964) !. M. L.J. 147.
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K. M. KANAVI v. STATE (Bhargava, J,)
823
and properties which were in his possession to the new President.
He was also asked to hand over an iron cupboard with its keys
and contents which were with him.
This Government Order was
served on the appellant on 9th July, 1963. The appellant did
not comply with the Order and, consequently, on 21st September,
1963, the Government of Mysore sent an order to the Divisional
Ofmmissioner directing him to take necessary action under section
23A of the Act to prosecute the appellant, since he had d~fied
the Government Orders and had refused to hand over charge of
the papers and properties of the Borough to the newly elected
President.
The Divisional Commissioner, in turn, wrote to the
Deputy Commissioner on 5th October, 1963, requesting him to
take immediate action under s. 23A(3) of the Act tg prosecute
the appellant.
The Deputy Commissioner then passed an order
authorising the n~ly elected President of the Borough to be the
formal complainant in respect of this prosecution which had been
ordered by the Government and to file a criminal complaint
against the appellant.
This order was made by the Deputy Commissioner on 24th December, 1963.
The new President, Malashetti, thereupon filed a complaint against the appellant for an
offence punishable under s. 23A(3) of the Act.
The complaint
itself is dated as 3rd January, 1964, but the judgment of the High
Court mentions that the complaint was actually presented in Court
on 8th January, 1964.
Since these dates are not very material
for decision of the point on the basis of which this appeal is being
decided, we have not tried to ascertain the exact date of presentation of the complaint in court.
On the basis of this complaint
and the facts mentioned above, the appellant was convicted by a
Magistrate for the offence under s. 23A ( 3) of the Act and was
sentenced to pay a fine of Rs. 50/-, in default to suffer simpk
imprisonment for seven days.
The appellant filed
a revision
against this order of conviction in the High Court of Mysore and
challenged it on three grounds. One ground was that the com·
plaint filed by the new President Malashetti was incompetent as it
was not filed in accordance with the procequre laid down in the
Act, so that the proceedings taken by the Magistrate were without
jurisdiction.
The second point was that, even if it be held that
the complaint was validly filed the provisions of s. 23A of the Act
were not attracted, as the appellant could not be held to b~ a
retiring President and an order under s. 23A (2) can only be made
against. a retiring President. The third plea was taken that the
complamt was barred by, time.
The High Court did not accept
any of these three pleas and dismissed the revision.
The appellant has, therefore, come up to this Court in appeal by special
leave.
In this. cas.e, the facts, which have been enumerated above,
WP,re not disputed even during the trial of the case, and the defence
8Sup Cl/68-tl
824
SUPREME COURT REPORTS
(1968) 3 S.CR.
of the appellant was confined to the three grounds mentioned above
which were urged in the revision before the High Court.
To
appreciate the first ground mentioned above, it is necessary to
reproduce section 23A and sub-s. ( 1) of ~ection 200 of the Act
which are as follows :-
"23A. (1) On the election of a new President or
Vice-President, the retiring President or Vice-President
in whose place the new President or Vice-President ·has
been elected shall hand over charge of his office to such
new President or Vice-President, as the case may be.
( 2) If the retiring President or Vice-President fails
or refuses to hand over charge of his office as required
under sub-section ( 1) the State Government or any
authority empowered by the State Government in this
behalf may, by order in writing, direct the President or
the Vice-President, as the case may be, to forthwith hand
over charge of his office and all papers and property of
the municipality, if any, in his possession as such President or Vice-President, to the new President or VicePresident.
(3) If the retiring President or Vice-President to
whom a direction has been issued under sub-section (2)
does not comply with such direction, he shall, on conviction, be punished with simple imprisonment for a term
which may extend to one month or with fine -which may
extend to Rs. 500 or with both.
200. (1) The standing committee and, subject to
the provisions of sub-section (3) the Chief Officer may
direct any prosecntion for any public nuisance whatever
and may order
proceedings to be
taken for
the recovery of any penalties and for the punishment of
any persons offending against the provisions of this Act
or of any rule or by-law thereunder and may order the
expenses of such prosecutions or other proceedings to
be paid out of the municipal fund :
·
Provided that no prosecution for an offence under
this Act or by-laws framed thereunder shall be instituted
except within six months next after the date of the commission of the offence or if such date is not known or
the offence is a continuing one within six months next
after the commission or discovery of such offence."
Sub-s, ( 1) of s. 23A casts the duty on the retiring President to
hand over charge of his office to the new President, when a new
President has been elected. It is obvious that, when handing over
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K. M. KANAVI v. STATE (Bhargava, !.)
825
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charge, th~ retiring President must hand over to his successor. all
the papers and property belong\ng to the Borough. Sub-section
(2) of s. 23A envisages a case where the retiring President fails
or refuses to hand over charge of his olliee in that manner. This
sub-section empowers the State Government or any authority
emp<>Wered by the State Government in this behalf to make an
B order in writing directing the retiring President to forthwith hand
over charge of his office and all papers and pr11perty of the municipality to the new President. Sub-section (3) of s. 23A prescribes the punishment which can be awarded to a retiring President who is conyicted for not complying with a direction issued
under sub-s. (2). It is clear that, in the present case, the appelc lant was not liable to conviction under s. 23A(3) merely because
he refused to hand over complete charge to Malashetti when the
latter asked him to do so by his letter dated 25th April, 1963 or
even by the subsequent reminder dated 6th May, 1963.
The
failure of the appellant to hand over the property, however, led
the State Government to make a direction under s. 23A(2) on
20th June, 1963 and this Order of the Government was served
D on the appellant on 9th July, 1963. This Order was not complied
with by the appellant according to the case of the prosecution.
It was because of .the failure of the appellant to comply with this
Order .that the complaint was filed by the new President under
s. 23A(3). The complaint was, -therefore, clearly for initiating
a proceeding for the punishment of the appellant who had offended against the provision under sub-s. (2) of s. 23A of the Act.
Under s. 200(1) of the Act, direction for taking such proceedings
E
could be made either by the standing committee or by the Chief
Officer: Admittedly, Malashetty was not the Chief Officer, nor
did he file the complaint under any direction made by the Standing Committee of the Borough. It is on this ground that the plea
F has been put forward on behalf of the appel!ant that the complaint
against him was incompetent and no conviction could be validlv
recorded against him on its basis.
·
. '!be High Court rejected th!s plea on the ground that, in its
opmton, s. 200(1) of the Act 1s only an enabling section which
giWI! the power to the Standing Committee and the Chief Officer
G to . make directions for taking of proceedings of this nature and
it cannot be held to be exhaustive of the authorities who could
make directi~ for initiatiOn of such proceedings.
The High
C®rt took notice of the fact that in the Act, there is no provision
hf\>idding cognizance ~f ;m. offence being taken ex~t on a comJJ(l!llt made under a direct10n of the Standing Committee or the·
Chief Olllcer, and interpreted the expression "may direct" used in
5. ~(.1) of the Ac! as indica!ing that it was an enabling section
H
pebllltling the Standmg Committee and the Chief Officer to make·
liecmwy directions. In these circumstances, the High Court con-
826
SUJ>RBMB COURT 11.BJ'ORTS
(1968] 3 S.C.R.
eluded that.this provision could not be held as laying down that the
Standing Committee and theChief Officer were U.e exclusive authorities who could institute proceedjng.o of the nature mentioned in
that sub-section. On this view, the High Court further proceeded
to hold that a complaint could have been filed for an offence under
the Act by even a private individual, so that the complaint fiJe4 by
,Malashetty, who was interested in his capacitv as the newly elected
President, was competent and valid.
We are unable to accept the interpretation put by the High
Court on s. 200 ( 1) of the Act. It is true that there is no specific
provision in the Act laying down that cognizanee of an ofience
under the Act is not to be taken except on a complaint filed in
accordance with a direction made under s. 200 ( 1), but the scheme
of the Act and the purpose of this provision in s. 200 ( 1) makes it
clear that the legislature intended that such proceedings should
only be instituted in the manner laid down in that sub-section. The
word "may" was used only because the legislature could not have
enacted a mandatory provision requiring the Standing Committee
or the Chief Officer to mak.e a direction for institution of proceedings in all cases. This word was intended to give a discretion to
the Standing Committee or the Chief Officer to make directions for
taking proceedings only when they considered it appropriate that
such a direction should be made and to avoid compelling the Standing Committee or the Chief Officer to make such directions in all
cases. The use of this word "may" cannot be interpreted as laying
down that, if a proceeding for punishment of any person for contravention .of any of the provisions of the Act is t() be instituted,
it can be. instituted in any manner without complying with the
requirements of s. 200(1) of the Act. If the interpretation put
by the High Court on this provision is accepted, it would mean
that this provision was totally l!nnecessary, because there would
be no need to confer power on the standing committee or the Chief
Officer to make· such directions if such directions could be made or
proceedings instituted at the instance of any private individual.
We cannot accept the submission that this provision was made in
the Act simply by way of abundant caution.
In fact; if the provision had been made with such an object in view, there is no reason
why the power should have been expressed to be conferred on the
standing committee and the Chief Officer only and not on. the
President of the Municipality. We, consequently, hold that, if any
proceeding for punishment of any person for contravention of any
of the provisions of the Act is to be instituted, it must be instituted
in the manner laid down in s. 200( 1) of the Act and in that manner
only.
This view of ours follows the principle laid down by this Court
in Ballavillls Agarwala v. Shri 1. C. Chakravarty('). In that case,
(I) (1%0) 2 S. C.R. 739.
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K. M. KANAVI v. STATE (Bhargava. J.)
82 7
the Court had to interpret a similar provision ins. 537 of the
Calcutta Municipal Act, 1923, under which it was laid down that
the Commissioner may institute, defend or withdraw from legal
proceedings under that Act or under any rule or byela\V made
thereunder. The Court held that, though the word used was "may'',
this provision must be read as requiring that the institution or withdrawal from legal proceedings under that Act must be by the Commissioners and no other authority. The deeision was given on the
basis that the scheme of the Act mape it clear that that section
was intended to Confer exclusive power on the Commissioners. The
interpretation that it was a mere enabling section because of the
use of the word "may" was rejected and it was held that, if the other
interpretation canvassed was accepted, the section would become
clearly otiose. That principle clearly applies to the interpretation
of s. 200( 1) of the Act with which we are concerned.
In Mangu/al Chunila/ v. Mani/al Magantal a11d Another('),
a similar interpretation was put on section 481( 1) of the Bombay
Provincial Municipal Corporation Act, 1949, which also used the
word "may" when laying down that the Commissioner may take
or withdraw from proceedings against any person who is charged
with any offence against this Act or ...... This Court referred
to the decision in Ballavdas Agarwala(2 ) and said:-
"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 offences under
the Act or the rules, regulations or by-laws made under
it."
Jn the case before us, reliance was placed on the other side on a
decision of the Bombay High Court in The State v. Manila! Jethalal(8). That decision has already been disapproved by this· Court
in the case of Mangulal Chunila/(1 ), and need not detain us. On
this view, it must be held that the complaint in the present case,
which was instituted by Malashetty, the newly elected President,
without any order or direction by the standing committee or by
the Chief Officer was not competent as it did not comply with the
requirements of s. 200(1) of the Act.
[n this connection, a new point that was raised was that, whenever an Order under s. 23A(2) of the Act is made and is disobeyed, only the State Government, which made the Order or the
new President to whom the papers and property of the Borough
have to be giv.en under the direction made by the Government
will have the knowledge that the retiring President has failed to
(I) Criminal Appeal No. 59of1965 decided on 23-11-1967.
(2) (1960] 2 S. C. R. 739.
(3) p953] SS B. L. R. 377.
828
SUPREME COURT REPORTS
[1968] 3 s.c.R.
comply with the direction and has, thus, committed an offence
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punishable under s. 23A(2) of the Act and, consequently, it
should be held that a complaint in respect<>f such an offcuce was
not intended'to be covered by the provisions of s. 200(1) of the
Act.
On the language of s. 200 ( 1) of the Act, however, we
must reject this contention, because it clearly lays down that tae
Standing Committee and. the Chief Officer· are the authorities who
can order proceedings to be t!lken for the punishment of any person offending against the provisions of the Act, and the present
prosecution of the appellant is clearly for an offence of failing to
comply with a direction under s. 23A(2) made punishable under
s. 23A(3) of the'Act. It may, no doubt, appear anomalous that
.the prosecution of even a retiring President in such circumstances
has to be ordered by the Chief Officer, who was his subordinate
at least during the time when he was working as the President.
It seems to us that this anomaly has arisen, because, when s. 23A
in its present form was introduced fu the Act by the Bombay Act
XL .of 1950 and for the first time a retiring President was made
liable to conviction for failing to comply with a direction made
under sub-section ( 2) of that section, the Legislature did not
notice that s. 200 ( 1 ) of the Act would govern even such a proceeding.
The legislature left s. 200 (1) of the Act untouched.
That provision, as it stands at present, ls clearly applicable even
to a proceeding for punishment of a retiring President under
s. 23A(3) of the Act, so that the remedy may now lie in a suitable amendment of s. 200(1) of the Act.
The conviction of the
appellant on the basis of the complaint filed by the new President
Malashetty, in disregard of the provisions of s. 200(1) of the Act,
must, therefore, be held to be invalid and set aside.
Since the appeal succeeds on this one ground, we do not consider it necessary to discuss the other two grounds raised by the
appellant for challenging his conviction. The appeal is allowed
and the conviction and·sentence of the appellant are set aside
R.K.P.S.
AppeQ/ allowed.
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