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 jdgment-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

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 specifi- J. 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

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

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. ~

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 Deprtment 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

'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 chi 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 quetion 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~

...

--•

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&&

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 garwaa . 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 -

"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

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 Vice- Chairman.

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.

... l -

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 sri 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].

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.

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

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 ournotice. 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

obligatory and sanction or consent of the Commis-

I910 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 helpin 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

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.

....

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 Commisioner himself

(1) A.LR. (1943) Cal. 3r.

(2) A.LR. (1953) Born. 36, s.

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. 537 of the Calcutta Municipal Act are different.

Our attention has bgen drawn to four English decisions where a l'rivate person was held competent to make a complaint in respect of (1) consumption of refreshments in places of public resort, (2) sale of "margarine" (3) acts of cruelty to animals and (4) sale of unsound m9at: Cole v. Coulton {'); Buckler v.

Wilson ('); The Queen v. Stewart('); Giebler v. Manning('). All these four decisions proceeded on the terms of the statutes under which the offences were alleged to have been committed and it was held that those statutes did not contain any provisions which made it obliga.tory that the complaint should be made by a particular authority in a particular manner.

They do not really help the respondent to establish his contentions that in spite of s. 537, Calcutta Municipal Act, a private person can institute a. lega.l proceeding under the said Act. They take us back

(r) 2 Ellis & Ellis 695; 121 E.R 261. (31 "11896) l Q.B.D. 3ro.

(2) (1896) I Q.B.D. 83.

(4) (Lgo6) I K.B. 709,

to the point from which we started; namely, what z96" is the true nature and import of s. 537 of the Calcutta B 11 d-; 1 Municipal Act. If it is obligatory in the sense a av a:. gisrwa a explained earlier, the appellant is entitled to succeed.

Shri If it is merely enabling, then the respondent is entitled J. C. Chalmwarty to succeed. The decision in The Queen v. Stewart (1) on which learned counsel for the respondent strongly 5 K. Das f. relied, dealt with the provisions of the Diseases of the Animals Act, 1894. Lindley, L.J. said:

"Reading those sections together, they in fact affirm the right of any person to prefer an information in most significa.nt terms. Is there anything in the Act or the Order which so clearly restricts that right that we ought to say that in thil:l case no one but the borough council had the right to take proceedings? I can find nothing of the kind." Giebler v. Manning (2) was decided on the terms of s. 47, sub-s. (2) of the Public Health (London) Act, 1891 and the question was-could a private person institute proceedings under 21. 4: 7, sub-s. (2) ? Bord Alverstone 0. J. answered the question in the following observations:

"Having regard to the object of the statute, the protection of the public against the offering of diseased meat for sale, I think that if it had been intended to limit the right to take proceedings for the recovery of penalties to a limited class of persons, such as medical officers and sanitary inspectors, words would have been introduced into the section taking away from private persons the right to lay informations under the section."

Lastly, there is the decision in The Queen v. Oubitt (3).

This was a case under the Sea Fisheries Act, 1883 (46 and 47 Viet. c. 22), s. 11 of which said: "The provisoes of this Act ............ shall be enforced by seafishery officers." It was held that the effect of the above words was that no one except a sea-fishery officer could prosecute for an offence against the Act and a rule calling upon the justices to hear and determine a summons for an offence against the Act taken out by a private individual, was discharged.

Lord Coleridge, C. J. observed: ·

(I) (1896) I Q.B.D. 300.

(2) (1906) I K.B. 709.

(3) (1889) 22 Q.B.D. 622.

'96° "If any one may enforce the Act, s. 11 is useless.

B II d-A 1 I do not think that negative words are required to a av as garwa a l d d. b h v. exc u e procee mgs y persons ot er than sea-fishery Shri officers. For instance, if an Act provided that the J. c. ChoMavarty Attorney-General was to sue for a penalty, no one else could sue for it; it is obvious that if everyone could 5 I<. Das J. sue for the penalty the Attorney-General could sue for it, so that on that view of the statute the clause enabling him to sue would be unnecessary and useless."

On a parity of reasoning, if anybody can institute a legal proceeding under the Calcutta Municipal Act, s. 537 thereof becomes practically useless. Even without that section, the Municipality could do the acts specified therein, and it is difficult to understand the necessity of a provision like s. 537 unless the intention was to confer a power on the Municipality which power must be exercised in accortl.ance with the provisions of the Act and not otherwise.

It was faintly suggested that the absence of a complaint by the Commissioners or the Chairman or a duty delegated authority was a mere error or irregularity which could be cured under s. 537 Criminal Procedure Code.

Our attention was also drawn to s. 79 of the Calcutta Municipal Act, 1923. In the view which we have taken the absence of a proper complaint was not a mere defect .or irregularity; it affected jurisdiction and initiation of proceedings.

For these reasons, we allow the appeal and set aside the conviction and sentence passed against the appellant. The fine, if paid, must be refunded to the appellant.

Hidayatullah ].

HIDAYATULLAH J.-. In this appeal which has been filed on a certificate of fitness under Art. 134 (l)(c) of the Constitution granted by the Calcutta High Court, the appellant challenges his conviction under ss. 406 and 407 read with s. 488 of the Calcutta Municipal Act as applied to Howrah, and the sentence of fine of Rs. 20Q (in default, simple insprisonment for 30 days).

The appellant, Ballabhdas Agarwala, is the proprietor of a chain of restaurants, and one such restaurant is at the Howrah Railway Station. He had

• -

ntered into an agreement with the railway, and had z960 taken out a vendor's licence No. 54 of 1951 dated January 9, 1952, by which he was permitted to sell or BallavdasAgarwala exhibit for sale, sweetmeats, betel, bidi, cigarettes, tea, ;;.,; CJ.ke, bread and biscuits and parched gram at J. c. Chakravarty Howrah goods shed between January 6, 1951 and December 31, 1953.

Hidayatullah ].

On December 2, 1953, the Health Officer, a Sanitary Inspector and a peon of the Howrah Municipality visited the restaurant, where the servant of the appellant, one Shyamlal Missir, was in charge. On the counter, there was a jar containing "butter".

This- "butter" was being sold to customers. The Sanitary Inspector took three samples of this" butter" from an one-pound slab and put them into three clean. bottles, which were sealed and labelled. Missir was paid Rs. 2 as the price. One bottle was left with Missir as required by the rules. Of the remaining two bottles, one was sent for analysis of the sample, to the Public Analyst, West Bengal. On the report of the 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.

The case was tried summarily, and the Magistrate acquitted both the accused, b@cause, 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.

Three points were argued before . us.

The first was that by the terms of the agreement and licence, the appellant was not authorised to sell butter, and

'960 thus he was not responsible for the sale in questiori. - It was contended that the sale might have been made llalla•d., Aarwala b

M" • h" t Th" t t• y Issir on IS own accoun .

IS con en ron IS

5;;, without substance. That there was a sale of the J. ~. Chakravafty seized article at the restaurant of the appellant goes . - without saying. Sections 406 and 407 of the Calcutta H•4 •Y•lullah J. Municipal Act make the sale of adulterated or misbranded article an offence, and every person who sells such article directly or indirectly, himself or by any other person is liable. Even though such sale might be outside the permit of the vendor's licence, the seized article was, in fact, sold. The words of the sections vicariously fasten the responsibility on masters for the acts of the servants, and the maxim, qui f acit per alium f acit per se, a pp lies.

The finding is that the sale was for and on behalf of the proprietor, and in view of the clear words of the section, he would be answerable.

Next, it was argued that this was not a case of "adulteration" at all, because there was, in fact, no butter fat, in the sample analysed. Reference was made to a decision of the Punjab High Court in Mangal Mal v. 'The State (1) in support of the contention that the prosecution for the sale of" adulterated" butter was defective. No doubt, the ordinary sense of" adulteration" connotes the mixing of deleterious or other substance with the main basic article ; but the definition in the Act has been widened to include even those articles where the contents do not include the basic substance either wholly or partly. In view of the definition, this line of criticism was rightly not pressed.

The last point is the main argument in this case, on the strength of which the certificate was obtained.

The argument is that the complaint presented to the Court in this case was by an unauthorised person and was thus no complaint at all. The argument embrarn; id a consideration of certain sections of the Calcutt!!.

Municipal Act, 1923, as applied to Howrah and of the Bengal Municipal Act, 1932, and the notifications issued under them. The first section to which reference

(1) A.LR. 1952 Pun. 140.

• -

was made is s. 537 of the Calcutta Municipal Act in its r960 application to Howrah Municipality. It reads thus: B

11 -A 1 •• apa "The Comm1ss10ners mayv.

(a) institute, defend or withdraw from legal $hri proceedings under the Calcutta Municipal Act, 1923, f. c. Chakravafly as in force in the Municipality of Howrah or under Hidayatullah J. any rule or by-law 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 by-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 Calcutta Municipal Act, 1923, as in force in the Municipality of Howrah or under any rule or by-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."

It is contended for the appellant that the Commissioners are the only body of persons who could have instituted the complaint. In reply, it is pointed out that under s. 12 of the Calcutta Municipal Act as applied to Howrah, the Commissioners can delegate their functions to a Chairman by a resolution passed . at a special meeting, and . the Chairman can also by a general or special order in writing, re-delegate any of the delegated powers to the Vice-Chairman or to any municipal offi, cer.

This power of delegation authorises both the Commissioners as well as the Chairman to delegate or re-delegate, as the case may be, their powers under the Bengal Municipal Act also.

The ·.Divisional Bench of the Calcutta High Court referred to s. 51 of the Bengal Municipal Act, 1932 as enabling delegation, but that section has no application, in view of the provisions of s. 542 of the Calcutta Municipal Act, which repeals s. 51 of the Bengal

I96o Municipal Act in its application to the Howrah

II d-A Municipality. I have thus only s. 12 of the Calcutta Ba av a' garwala M . . 1 A t . •t 1. t• t th H h v. umc1pa c m 1 s app rna ion o e owra Shd Municipality to consider, and as summarised above, it ]. c. Chakravarty permits delegation of powers from the Commissioner , to the Chairman and from the Chairman to the Vice- Hidayatullah ]. Chairman or any other officer of the Municipality. It' was by virtue of this section that the Chairman was presumably delegated the powers of the Commissioners, though no proof has been given in this case. No point was made of the lack of this evidence, and I need say nothing about it. If it had been raised, the prosecution would have led evidence, if available. But without this objection having been raised at an appropriate stage, it is impossible to say now that it is well-founded.

It is, however, in the re-delegation of the powers from the Chairman to the other officers of the Municipality that the question, whether such delegation was existing on the date on which the prosecution was initiated agafnst the appellant, has risen.

A number of notifications must now be set out, because it rs contended that the later notifications rescind or modify those issued earlier :

, I. " Howrah Municipality

Order.

I hereby delegate to the Vice-Chairman, Dr. Beni Chandra Dutta, all my powers, duties aud functions as Chairman in respect of the following departments which are placed under his charge:-

Health Department.

The 6th February, 1948.

II.

Howrah Municipality.

Order.

S. K. l\fokherji, Chairman.

I hereby delegate my powers and functions to the Health Officer to order prosecution, to sign prosecution sheets in respect of cases concerning the Health and Conservatory Departments.

-..

The 20th December, 1949.

S. K. Mukherjee, Chairman.

III.

Ballavdas Agarwala v.

Howrah Municipality.

Shri Order. ]. C. Chak¥avarty 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,

IV. Howrah Municipality.

Order.

Chairman.

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.

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.

The 12th December, 1952. (Sd.) K. C. Dutta, Chairman. " This was the position of the Orders on December 2, 1953 (the date of the offence) and also on January 5, 1954, when the complaint was filed.

Now, the municipal corporation is a collection of persons, and is invested. with a legal personality by the statute under which it is created. The statute

Hidayatullah ].

r96o gives it perpetual succession and a power to act in

B II d-A 1 many ways. Among its multifarious functions is an a av as garwa a . . v. mherent power to sue or . be sued by its corporate Shri name, but the statutes creating such corporations J. c. Chakravarty aggregate provide expressly for such power. In the absence of provision to the contrary, the body Hidayatullah J. corporate in such matters must act as a corporation.

The inconvenience of having the entire body to meet and decide upon every individual case is apparent, and the law, therefore, provides •for delegation of the functions of the body corporate to the Chairman.

Even there, the burden on the Chairman's time would be enormous, and thus the law enables him to re-delegate, in his turn, his delegated powers to others.

Section 12 of the Calcutta Municipal Act enables the Chairman to delegate his powers, duties or functions to the Vice-Chairman or to any municipal officer.

Such officers are to be distinguished from mere servants who carry out orders but do not exercise definite municipal powers, duties or privileges as the officers do.

This distinction was made in Abbott's Corporations, Vol. II, p. 1456 etc., and is to be found reflected also in the Act under consideration.

An officer of the municipality must himself perform his duties created by statute or bye-Jaw.

He cannot delegate them to others, unless expressly authorised in this behalf. The Act does not so empower the officers to delegate their functions in their turn, and thus an officer to w horn the power is delegated by the Chairman must perform them himself. A glance at the Act under consideration will show the numerous functions with which the Act invests the Chairman. In addition, the Chairman is invested with the functions delegated by the Commissioners. In most municipalities (if not all), the Chairman maintains an order book in which he designates the officers to whom his functions are delegated. In the present case, there are extracts from the orders of the Chairman from May 9, 1938 to April 22, 1957 (Ex. A). These extracts show only the powers and functions delegated to the Engineer, Water Works Overseers, and they run the course of thirteen pages of small print in tho Paper Book and involve one hundred

• -

and thirty-seven special delegations. If the whole r960 book were to be before us, these special delegations -; 1 will show an enormous number of specially delegated Ballavdas garwa a v. powers.

Shri These functions cannot be performed by any but J. c. Chakravarty the officers concerned and are not taken away every time the Chairman passes an order investing by a Hidayatullah J . general order his functions, in te 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.

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 tii} 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 functions to the respective officers of the departments till the election of the new Board ; but the officers of the Department are invested with both administrative and special powers. In my opinion, a distinction must be made between delegation of a power to do special acts by a special order, and delegation ofa general character which can only be interpreted generally as applicable to administrative control.

Section 12 itself contemplates two kinds of orders, and it cannot be gainsaid that the Order of December 20, 1949 (No. II) was a special Order, while the Order of

pril 7, 1951, was a general one.

The first Order (No. I dated February 6, 1948) delegated all the powers of the Chairman in respect of the Health and other Departments to the Vice- Chairman. It did not mean that the order book (Ex. A) came to an end ; nor did it mean that from_ February 6, 1948, it was the Vice-Chairman who alone could do all that is mentioned in the thirteen pages printed in the Paper Book and what is presumably there regarding other departments. Delegation of administrative powers is one thing, and delegation of

I96o power to do some specific act or acts is quite another.

d-A 1 The general order in favour of the Vice-Chairman Ballav as garwa a (N l) Id d h . v. o. wou not cut own t e special orders of the Shri Chairman. The general order cannot be read as special, J. c. Chakravarty because generalia verba sunt generaz.iter intelligenda, and generalities never derogate from specialities. It only Hidayatullah J. granted the residuary powers which were not covered by the special delegations from timo to time. No doubt, the word used is "all", but the whole intent and purpose of the delegation must be borne in mind. Qui haeret in litera haeret in cortice. (Broome's Legal Maxims, 9th Edn., p. 443).

The rules of interpretation of statutes only follow rules of interpretation of deeds and instruments and not vice versa.

To hold otherwise would mean that after the order of February 6, 1948 (No. I), all functions, duties and powers including those specifically mentioned in the order book came to be centred in the Vce-Chairman.

It was he alone who could inspect and examine house drains (s. 275), approve the site and position of the cess-pools (s. 279), issue or serve notices (s. 503), inspect the service pipes (R. 5 (3)), examine the water pipes (R. 6)-so on and so forth. And yet, this would be the effect of the Order of February 6, 1948, if the effect of the Order of April 7, 1951, on the Order of December 20, I 949, is, as is claimed. It may be contented that if that is the effect of the Order, we can declare it to be so ; but one reaches this result only if one disregards the distinction between special and general orders, and there is no principle of interpretation on which it can be rested.

The special delegation order of December 20, 1949, could only come to an end if it was withdrawn either expressly or by necessary . implication. No doubt, it was a delegation by Mr. S. K. Mukherjee, and he ceased to hold office later; but the delegation made by him would not fall by that reason alone. The delegation was not personal to Mr. Mukherjee but was made by virtue of office and it could only cease to be operative if cancelled in the same manner by the same officeholder or his successor. It was, however, argued that it came to an end because of a time-limit imposed by

• -

the Chairman by hiS Order of April 7, 1951 (No. III). •960 That Order stated that powers and functions except Ballavdas Agarwala those delegated to the Vice-Chairman were to be v. exercised till the election of the Executives by the new Shri Board. But the time-limit was imposed on powers J.C. Chakravarty delegated by that Order. This is clear from the language Hidayatullah J. employed:

"Till the election of Executives by the New Board I delegate all my powers and functions ...... to respective officers of departments." The contention is that this Order had the effect of imposing a time-limit on all delegations made even before. This general order did not have this effect on a special order for the reasons stated. The delegation of the power to order prosecution and to sign prosecution sheets was specially conferred by the Order of December 20, 1949 (No. II), and was not revoked by the general order which could not be read specially;. nor was it intended that this power was to have a timelimit. By "officers of the department" was not meant the officers on whom special powers were conferred to do special acts. The Order quoted above is in general terms, and puts a timelimit on the delegation made ?Jy that order. It says nothing about delegations of a special kind already in existence, or that the general order was to be in supression of all special orders. It does not, in terms, seek to affect them either expressly or even by implication. In iny opinion, the special delegation made by the Order of December 20, 1949 (No. II), remained unaffected, and thus enables the Health Officer to file the complaint.

In this view of the matter, it is unnecessary to decide whether s. 537 of the Calcutta Municipal Act is merely enabling or mandatory, and whether in the absence of a proper delegation, the Health Officer or other officers of the Municipality or any private person could have initiated the prosecution in such a case.

I would, therefore, hold that the appeal has no force, and that it should be dismissed.

ORDER OF COURT In view of the judgment of the majority the appeal is allowed.

Appeal aUowed.

October 18, 1939

Devasthanam

R. Muthammal

Thayammal

M. Picha Pillai

BALLAVDAS AGARW ALA

SHRIJ.C.CHAKRAVARTY

S. K. DAS

A. K. SARKAR

ss. 406 and 407

s. 488

January z, 1954

J. C. Chakravarty

February 6, 1948

December 20, 1949

April 7, 1951

July 4, 1951

December 12, r952

4th July 1951

15th December, 1952

This will take effect from 15th December, 1952".

S. K. Das

Held, (per S. K. Das and A. K. Sarkar, JJ.)

A. K. Sarkar

Calcutta Municipal Act, 1923

Howrah

Section 537

s. 12

s. 537

(1936) L.R. 63 I.A. 372

April 7, l95L

Calcutta High Court

N. C. Chatterjee

S. K. Kapur

Nanak Chand Pandit

S. C. Mazumdar

Ballavdas Agarwala

S. K. DAS, J.-The appellant Ballavdas Agarwala f

S. K. Das].

S. K. Das

Shyamlal Missir

December 2, 1953

s. K. Das

Shyamlal

-Shyamlal

Health Department of the Government of West Bengal

West Bengal

January 2, 1954

sections 488

Calcutta Municipal Act, 1923

Howrah Municipality

Calcutta

h C "d h d fBallav as,, garwa a of Calcutta.

ss. 406 and 407

s. 488

Sessions Judge of Howrah

Article 134(1)(c)

Das Gupta

4th July, 1951

Sankar Lal Mukherjee

12th

December, 1952

K. C. Datta

12th December, 1952

Section 537

Calcutta Mummpal Act

Section 537

K. Das

s. 537

Calcutta Municipal Act, 1923

s. 51

s. 12

s. 12

Calcutta Municipal Act, 1923

s. 51

Bengal Municipal Act, 1932

s. 537

s. 12(1)

Calcutta Municipal Act, 1923

s. 537

May 9, 1938

s. 537

Section 146

15th s:i December, 1952

This will take effect from 15th s:i December, 1952." ].

c. Chakravarty

H. Das

December 12, 1952

Ballavdas Agarw"la

J. c. Chakravarty

Howrah Municipality

s. 537

Calcutta Municipal Act, 1923

s. 537

Calcutta Municipal Act, 1923

Calcutta Municipal Act, 1923

s. 537

s. 537

s. 537

Code of Criminal Procedure

s. 537

Calcutta Municipal Act, 1923

(1936) L.R. 63 I.A. 372

s. 537

s. 537

s. 537

s. 537

Like all other Municipal Act

Calcutta Municipal Act, 1923

section 5

Section 84

Calcutta Municipal Act, 1923

s. 537

s. 531

Section 531

section 533

section 534

section 535

s. 535

ss. 537, 538 and 539

Section 537

s. 538

s. 539

s. 537

Some Municipal Act

s. 375

Bihar and Orissa Municipal Act, 1922

Section 353

the Bihar and Orissa Municipal Act, 1922

the Bihar and Orissa Municipal Act, 1922

Bengal Municipal Act, 1884

s. 537

Calcutta Ballavdas AgarwMla Municipal Act, 1923

Municipal Act but other Act

Sections 82 and 83

Indian Registration Act, 1908

ss. 179 and 237

Indian Companies Act, 1913

s. 537

Calcutta Municipal Act, 1923

Section 537

Code of Criminal Procedure

s. 537

s. 248

s. 537

s. 537

s. 248

Criminal Procedure Code

s. 248

Criminal Procedure Code

s. 537

s. 248

Criminal Procedure Code

s. 537

s. 537

s. 535(2)

J. c. Chakravarty

s. 535

ss. 481 and 69

Section 481

s. 69

s. 69

s. 481

s. 537

s. 537

Calcutta Municipal Act

s. 537

J. C. Chalmwarty

Diseases of the Animals Act, 1894

Lindley

s. 47

Bord Alverstone

This was a case under the Sea Fisheries Act, 1883

s. 11

This was a case under the Sea Fisheries Act, 1883

This was a case under the Sea Fisheries Act, 1883

Coleridge

Lord Coleridge, C. J. observed: ·

(I) (1896) I Q.B.D. 300.

s. 11

Das

s. 537

s. 537

s. 537

Criminal Procedure Code

s. 79

Calcutta Municipal Act, 1923

HIDAYATULLAH

Art. 134

ss. 406 and 407

s. 488

Ballabhdas Agarwala

January 6, 1951

December 31, 1953

Hidayatullah

Missir

Debabrata Mookerjee

Art. 134

Sections 406 and 407

Punjab High Court

Municipal Act, 1923

Howrah and of the Bengal Municipal Act, 1932

s. 537

Howrah and of the Bengal Municipal Act, 1932

Howrah and of the Bengal Municipal Act, 1932

Calcutta Municipal Act, 1923

Calcutta Municipal Act, 1923

Calcutta Municipal Act, 1923

s. 12

Howrah

s. 51

Bengal Municipal Act, 1932

s. 542

s. 51

s. 12

Beni Chandra Dutta

S. K. l\fokherji

S. K. Mukherjee

S. K. Mukherji

The 7th April, 1951: S. K. Mukherji,

IV.

Sankar Lal Mukherji

K. C. Dutta

5, 1954

Section 12

April 22, 1957

Section 12

pril 7, 1951

Ballav

Broome

s. 275

s. 279

s. 503

December 20, I 949

20, 1949

S. K. Mukherjee

Mukherjee

J.C. Chakravarty

December 20, 1949 (No. II)

s. 537


]anuat'y Ij.

SUPREME COURT REPORTS [1960(2)]

NANDURIYOGANANDA

LAKSHMINARASIMACHARI AND ORS.

SRI AGASTHESW ARASW AMI V ARU OF

KOL AKAL UR

(J. L. KAPUR. P. B. GAJENDRAGADKAR AND K. c. DAS GUPTA, JJ.)

Grant-Inam-Intention-Spccified charitable payments exhausting income at date of grant~Intention is to denote tfJhole income to charity-Plaint-Prayer portion-If and when can be allowed to be amended-Documents-The interpretation possible-Supreme Conrt not to intervene with view taken by the courts below. The sole trustee of a deity in a suit prayed for a decree for the recovery of the arrears of income of a property alleging that the property in dispute constituted a specified endowment for Kalyanotsavam of the deity and the appellants who were trustees of the said property had committed defanlt in carrying out the purpose of the trust; but there was no formal prayer for the declaration that the said properties and income thereof formed a specific endowment for the said due performance of the services of Kalyanotsovam of the deity and feeding charges, and other expenses.

The defence raised was that Inam was a personal grant bnrdened with service of the deity and that it was not a specific trust or an endowment for the benefit of the idol.

The High Conrt after allowing the respondents to amend the plaint by adding a formal prayer for declaration stating that the properties and income thereof formed a specific endowment for the dne performance of the services of Kalyanotsavam of the deity held in favour of the respondents and further; observed that the appellants were liable to pay the_ entire income to the deity. On appeal to the Supreme Court it was contended for the appellants inter alia (r) that the grant was a personal grant, burdened with the provision for service and it was not a specific grant.

(2) that High Court should not have allowed the amendment of the plaint.

Held, that in the instant case the grant, was a specific endowment for Kalyanotsavam of the deity and therefore a specific trust and not a grant to the appellants with the added obligation of spending on the service.

In considering the question of the nature of a grant, the inam registers have always been treated as evidence of the utmost importance particularly where Sanad & Inam title deeds are not produced, and when two inferences are possible from the reading of documents there is no reason why the Supreme Court will interfere with the view taken by the courts below.

When at the time of a grant the specific charitable payments exhaust the income of the prpperty, it is a fair inference to draw

therefrom that the intention was to devote the whole income to 19fio charity and any subsequent increase in the value of the property accrues to the charity and the courts would be right to apply the Nanduri doctrine of Cy-pres.

Yogananda Held, further, that where necessary allegations had been Lakshin1narasimamade in a plaint and the requisite pleas raised and issues framed chari and Ors. on the question and the parties were fully cognizant on the points v. in controversy and necessary evidence led by them, the courts Sri would be right in allowing the amendment by the addition of a Agastheswaraswami • prayer in the prayer clause, which was in the nature of formal Varu of Kolakalur relief which flowed from the allegation in the plaint.

CIVIL APPEL.ATE JURISDICTION: Civil Appeal No. 147 of 1956.

AppeaJ from the judgment and decree dated August 7, HJ52, mf the Madras High Court in A. S. No. 809 of 194 7; arising out of the judgment and decree dated October 31, 1947, of the Sub Judge, Tenali in 0. S. No. 64 of 1944.

K. R. Chaudri, T. S. Venkataraman and K. R.

Sharma, for the appellants.

N. Subramanyam and T. Satyanarayana for the respondent.

1960. January 15. The Judgment of the Court was delivered by

KAPUR J.-This is an appeal against the judgment and decree of the High Court of Madras varying the decree of the trial court. The appellants were the defendants in the trial court and the respondent was the plaintiff who was represented by the sole trustee appointed by the Hindu Religious li:ndowment Board.

The suit was brought by the deity through the sole trustee for recovery of Rs. 3,480 towards the arrears of income of the property in trust for the years 1942-44 and for a direction for future payment at the rate of 160 bags of paddy per year or its equivalent i.e. Rs. 1,680. The plaintiff alleged that the property in dispute constituted a specific endowment for Kalyanotsavam of the deity and that the defendants who were trustees had committed default in carrying out the purpose of the trust. The prayer was for a decree for the recovery of expenses of Kalyanotsavam and of the feeding char.ges. The defence raised wat; i

Kapur J.

z960 that the inam was a personal grant for driving the car of the deity on the festival days and that it was

YNanduna not a specific trust or an endowment for the benefit of ogonan a h 'd 1 I ] d . f h .

Laf.shniinara.iniat e l

O • n ot ier wor sit was a grant o t e inam chari and o,,. burdened with service to the god. There were other v.. pleas raised in regard to jurisdiction, res judicata and 5" adverse possession.

The trial court held that the A [lastheswaraswatni "fi d f h K l vru of Kolakalurgrant wa~ a spe01 IC en owment or t e a yanotsavam of the deity but the appellants were not bound to Kapur J. spend the whole income of the lands for the purpose.

It decreed a sum of Rs. 200 per year as adequate provision for the performance of the service of Kalyanotsavam. The other pleas raised were decided against the appellants.

In the High Court the only point argued was regarding the nature of the grant and as in the opinion of that court a general trustee could not call upon a specific trustee to pay any money except on the ground of expending that amount and there was no proof of this expenditure the prayer as contained in the plaint was not granted and the High Court was also of the opinion that as all the facts had been

pleaded and there were no new facts to be alleged and the parties were alive to the real nature of the dispute and had even the issues framed on that very question, it allowed the plaint to be amended by the addition of. the prayer for a declaration that the properties in the schedule and the income thereof formed a specific endowment for the due performance of the services of Kalyanotsavam of the deity and feeding charges and other expenses incidental thereto and the appellants were therefore liable to pay the entire income. It was also of the opinion that all the available evidence had been adduced by both the parties and that the prayer for declaration was only a formal relief which flowed from the allegations in the plaint. It neither involved a change of the cause of action nor did it require a fresh trail and therefore the petition for amendment was allowed by the addition of the prayer stated above.

In this n, ppeal counsel for the appellant has raised hrnet points : (I) that the suit was not maintainable;

(2) that the amendment should not have been 1 960 allowed and (3) the grant was a personal grant to the . appellants burdened with the provision for service and YNandu•d• . 'fi d

A £ h fi oganan a it was not a spec1 c en owment. s ar as t e rst Lakshminarasima question is concerned it has not been shown as to how chari and ors. the suit was not maintainable. The question of v. amendment, in our opinion, was rightly decided by the Sri .

High Court. As held by that court all the necessary :gasthw; rs:m• allegations had been made in the plaint and the aru

0 0

a a ur requisite pleas had been raised by the appellants; an Kapur J. issue was framed on the question and the parties were fully cognizant of the points in controversy and the necessary evidence was led by the parties. In this view . of the matter the High Court was right in allowing tlre amendment by the addition of a prayer in the prayer clause.

We then come to the question of the nature of grant which on a consideration of the documentary evidence and other evidence has been found by both the courts below to be a specific endowment for Kalyanotsavam. This finding was challenged by the appellant. For that purpose it is necessary to consider the inam papers which form the main and basic documentary evidence by the appellant. Inam registers have always been treated as evidence of the utmost importance. The first document to be considered is of the year 1859-60. which is a copy of the inam statement made by N. Buchayya, the ancestor of the present appellants. Column 1 of this document shows the names of the inamdars and the enjoyers to be" N. Buchayya the present enjoment is towards the Kalyanotsavam" of the deity. Columns 4 & 5 give the residence and name of the original inamdars.

In Column 5 are given the particulars of the family of the then enjoyers and the entry is for the deity's Kalyanotsavam. In Column 6 is given the name of the grantor who gave the land to the grantee and "with the income therefrom he has been performing Sri Swami Varu's Kalyanotsavam frqm that time".

Columns 7-9 give the extent of the land. In Column 11 . " particulars relating to the present enjoyment are to be given and the entry was Sri Swami Varu's

'960 Halyanotsavam. In Column 12 it wa• shown that the Nandnri grant was revenue-free and the land was under the Yogananda cultivation of Buchayya the income of which was Lahshmin"'asima- Rs. 11 per annum. The entries show that the inam chari and Ors. was granted as a specific endowment for the Kalya- ;; i notsa:vam of the dity and the amount was spent in the

A ga.; theswaraswami servICeS of the deity.

Varu 0! Kolakalur The next document to be considered is a copy of

J<apur J. the inam-fair register of May 16, 1860. The High Court finding that some of the entries in that document were not clear sent for the original register from the Collector's office and it was found that some of the entries were not in the original at all. In Column 8 the words 'driving the car' were not to be.found and the remarks in Column 12 to the effect that ' the purpose for which the inam was granted is not stated' were not in the original register. In Column 2 of this document the general class to which the inam belonged is shown as religious endowment. Column 8 relates to the description of the inam and the entry is 'For service in the pagoda ......... The service is performed '.

Columns 9-11 relate to tenure. Column 12 has already been discussed. In Column 9 it is shown as free of tax.

In Column 13 the name of the origina.I grantee is shown to be the ancestor of the appellants. In Column 15 the entry is: 'In fasli 1223 Viresalingam 0-8-8-In fasli 1236 Nanduri Vissanna Buchayya for service during the festival of the pagoda 0-8-0'. In Column 21 the entry contains the following : 'To be confirmed and continued so long as the service is performed. In fasli 1216 the inamdar is entered as village servant but it is ascertained and is entered in fasli 1256(?), that service is performed from a long time in the pagoda'. In Column 22 it is stated 'confirmed' and below that is given the number of the title deed to be T.D. 243. From these documents and from the fact that neither the sanad nor the inam title deed was produced and taking into consideration some admissions of the predecessors of the appellants where it was admitted that they were dharmakartas of the

Kalyanotsavam and had been performing that service the High Court came to the conclusion that the inam

' -

lands in dispute were endowed for Kalyanotsavam and other purposes incidental thereto and constituted a specific trust and the appellants were trustees thereof.

}., Tanduri Yogananda It was urged by counsel for that appellants that Lafishminarasimah d . h . . h h chart and Ors. t e wor s rn t e inam register t at t e grant was to v. continue as long as the service is performed were Sri indicative of the fact that the grant was not to the A gastl.eswaraswami deity but to them individually with the added obliga- Varu 01 l<olakalur tion of spending from out of the income on the particular service to the deity.

A combined reading of the two documents i.e. statement of the ancestor of the appellants and the inam register shows that the grant was a specific endowment and that the lands were endowed for tho purpose of Kalyanotsavam and for other purposes incidental thereto and constituted a specific trust. The courts below have found this to be the nature of the trust and even if two inferences were possible from the reading of these two documents there i.s no reason why the view taken by the courts below should be interfered with particularly when there are admissions by the predecessors of the appellants which support the view of the courts below.

Besides those words do not necessarily mean that the grant was to the individual with the added obligation to spend on the performance of service. In the present case it is not stated in the inam fair register that the grant was to be confirmed in favour of Buchayya and continue so long as the service was performed. This kind of language used in inam registers has been dis cussed in some decided cases in the Madras High

Court e.g.

Hindu Religious Endowments, Madras v.

Thadikonda Koteswara Rao(1) where this distinction was prominently brought out between the words "to be confirmed so long as tho service is pel'formed" and " to be confirmed to the party so long as he continues the performance of the services". The latter was held to be a personal grant and the former was not so held.

We are therefore of the opinion that the finding of the High Court that the grant was a specific endowment for Kalyanotsavam of the deity and therefore a specific trnst and not a grant to the appellant with

(r) A.IR. 1937 Mad. 852

J<apur ].

'>6° the added obligation of spending on the service must be accepted to be correct.

Nanduri Th t t" c d · t h t Yogananda • e nex q.ues ron 1or ecs1on is as . o w a Lak.<hminamsimaportwn of the mcome of the mam lands IS to be

chori and Ors. expended on the service to the deity. The courts

v. below are not in accord on this point. The trial court Sri held that Rs. 200 out of the income should be Avgasthe:w1 a(ralskwa1mi adequate for the purpose and the High Court applied aru O; o a a ur d . d h ld h h 1 • b f' vy-pres ocLrme an e t e w o e mcome to e or • J<apur J. the deity even though it exceeded the expenditure for the particular service. One of the facts which emerges from the inam register is that when the grant was made the specific charitable payments exhausted the income of the property and it is a fair kiference to draw therefrom that the intention was to devote the whole income to charity and any subsequent increase in the value of the property accrues to the charity; Hindu Religious Endowments v. Thadikonda Koteswararao ('); Tudor on Charities (5 Ed.) p. 164; Laws of England Vol. 4, para 624, p. 303. The High Court was therefore justified in holding that the whole of the income was to go to deity, thus varying the judgment of the trial "court that only a portion of it was to be so employed. The High Court applied Cy-pres doctrine relying on N. Sanka.ranarayana Pillayan & (ks. v. The Board of Commissioners for Hindu Religious Endowments, Madras('). It was there held that where the gramt is to the deity andthe income is ear-marked for the services for which the specific endowment is created, if there is a surplus l which cannot be spent on these services, it would be ) a case for the application of the Cy-pres doctrine.

Taking into consideration that originally the inam income was only Rs. 11 the whole of which was to be and was expended on the service of deity i.e.

Kalyanotsavam and considering the nature of the grant the High Court has rightly applied Cy-pres doctrine.

We are therefore of the opinion that the judgment of the High Court was right and we dismiss this appeal with costs.

(r) A.l.R. r937 Mad. 852.

Appeal dismissed.

(2) (r947) L.R. 74 I.A. 230.

NANDURI YOGANANDA LAKSHMINARASIMACHARI AND ORS

SRI AGASTHESWARASW AMI VARU OF KOLAKALUR

L. KAPUR. P. B. GAJENDRAGADKAR

K. c. DAS GUPTA, JJ.

Kalyanotsovam

Kalyanotsavam

Supreme Court

Yogananda Held

Kolakalur

CIVIL APPEL.ATE JURISDICTION

August 7, HJ52

Madras High Court

R. Chaudri

T. S. Venkataraman

K. R.

Sharma

N. Subramanyam

T. Satyanarayana

High Court of Madras

Kapur

Lakshminarasima

N. Buchayya

Swami Varu

Varu 0! Kolakalur

apur

Tanduri Yogananda

Lafishminarasimah

Buchayya

Madras High

Court

L.R. 74 I.A. 230