Ballavdas Agarwala vs Shri J. C. Chakravarty

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: supreme-court

Case Number: Criminal Appeal No. 159 of 1956

Decision Date: 15 January, 1960

Coram: S.K. Das, A.K. Sarkar, M. Hidayatullah

In the matter of Ballavdas Agarwala versus Shri J. C. Chakravarty, the judgment was delivered on 15 January 1960 by a Bench consisting of S. K. Das, A. K. Sarkar and M. Hidayatullah of the Supreme Court of India. The case was reported as 1960 AIR 576 and 1960 SCR (2) 739. The petitioner, Ballavdas Agarwala, had been convicted of selling adulterated butter under sections 406 and 407 read with section 488 of the Calcutta Municipal Act, 1923, as extended to the municipality of Howrah. The conviction arose from a complaint filed on 2 January 1954 by the Sanitary Inspector, which bore the signature of the Health Officer of the municipality as a token of sanction. The petitioner argued that the trial was defective because, at the pertinent time, the Health Officer lacked the authority to sanction the prosecution. Under the Act, the power to institute a complaint was vested in the Commissioners, who could delegate it to the Chairman, and the Chairman could further delegate it, either generally or specially in writing, to the Vice‑Chairman or to any municipal officer.

The question of whether the Commissioners had delegated their power was not directly raised, but it was contended that the Chairman, by subsequent orders, had withdrawn the delegation in favour of the Health Officer. The first order issued by the Chairman on 6 February 1948 delegated to the Vice‑Chairman all powers, duties and functions relating to seven departments, including the Health Department. The second order, dated 20 December 1949, delegated to the Health Officer the authority to order prosecutions and to sign prosecution sheets in matters concerning the Health and Conservancy Departments. The third order, dated 7 April 1951, was made on the eve of a new election and 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 the respective officers of departments.” After the election, the newly elected Chairman issued an order on 4 July 1951 delegating all powers, duties and functions in respect of six departments, including the Health Department, to the Vice‑Chairman. Finally, an order dated 12 December 1952 revoked the earlier 4 July 1951 order as far as it related to the Health Department, declaring that the Health Department would henceforth be directly under the Chairman’s charge from 15 December 1952. The petitioner maintained that the third order of 7 April 1951 modified the second order, imposed a time limit on it, and caused the delegation to lapse upon expiry of that period.

The appellant argued that the second order issued on December 20, 1949 had been altered by a later order which imposed a specific time limit on the delegation and that, consequently, the authority granted to the Health Officer ceased to exist once that period expired. The respondent countered that the third order dated April 7, 1951 did not affect the earlier second order in any way and, irrespective of the delegation issue, maintained that the Health Officer could have instituted the complaint in the capacity of a private citizen. The Court, speaking through Justices S. K. Das and A. K. Sarkar, held that on the date the complaint was filed the Health Officer was not empowered as the duly delegated authority to commence criminal proceedings against the appellant. The Court explained that the third order issued by the Chairman on April 7, 1951 modified the second order by limiting the delegation in favour of the Health Officer to the period only until the election of the new Executive. The purpose of the third order, according to the Court, was to preserve the freedom of the newly elected Chairman to issue his own delegation orders and not to bind his discretion. Accordingly, the orders subsequently issued by the new Chairman did not contain any delegation of power to the Health Officer, and therefore the Health Officer could not lawfully act as the authorized representative for instituting the prosecution.

The Court further held that a complaint under the Calcutta Municipal Act, 1923, as applicable to the Municipality of Howrah, may be filed solely by the authorities expressly mentioned in the statute and not by an ordinary citizen. Section 537 of the Act authorises the Commissioners to institute, defend or withdraw from legal proceedings, while Section 12 empowers the Commissioners to delegate their functions to the Chairman, who may in turn delegate the same authority to the Vice‑Chairman or to any municipal officer. The Court emphasized that the procedural machinery prescribed by the Act must be strictly followed in enforcing its provisions and that it would be contrary to the object and scheme of the Act to treat Section 537 as a mere enabling provision. In support of this view, the Court referred to Nazir Ahmed v. King Emperor (1936) L.R. 63 I.A. 372, explained Sisir Kumar Mitter v. Corporation of Calcutta (1926) I.L.R. 53 Cal. 631, and cited Keshabdeo Kedia v. P. Banerjee, Sanitary Inspector, Howrah Municipality A.I.R. (1943) Cal. 31 as well as State v. Manilal Jethalal A.I.R. (1953) Bom. 365. The Court held that the authorities Cole v. Coulten, Ellis & Ellis 695, Buckler v. Wilson (1896) 1 Q.B.D. 83, The Queen v. Stewart (1896) 1 Q.B.D. 300, and Giebler v. Manning (1906) 1 K.B. 709 were inapplicable, while The Queen v. Cubitt (1889) 22 Q.B.D. 622 was relied upon. Justice Hidayatullah, speaking separately, observed that the sanction given by the Health Officer remained valid because the delegation of authority granted to him by the order of December 20, 1949 was not withdrawn by any subsequent order. He noted that the December 20, 1949 order was a special order that expressly conferred the power to order prosecution and to sign prosecution sheets, and that it was therefore unaffected by the general order of April 7, 1951, which only placed a time limit on delegations made under that later order and did not affect delegations made before it. The judgment was delivered in the criminal appellate jurisdiction in Criminal Appeal No. 159 of 1956, arising from the judgment and order dated June 25, 1956, of the Calcutta High Court in Criminal Revision No. 870 of 1956.

The appeal originated from an order dated 5 May 1956 issued by the Sessions Judge in Howrah in Criminal Petition 8 of 1956. That order set aside a judgment and order dated 20 February 1956 given by the First Class Magistrate of Howrah in Case No 1‑C of 1954. Counsel for the appellant comprised N C Chatterjee, S K Kapur and Nanak Chand Pandit, while counsel for the respondent was S C Mazumdar. The judgment was delivered on 15 January 1960 by Justices S K Das and A K Sarkar, with Justice Hidayatullah providing a separate opinion. Justice S K Das recorded that the appellant, Ballavdas Agarwala, owned a restaurant situated within the railway premises at Howrah Railway Station, which lay inside the Municipality of Howrah. The day‑to‑day operations of the restaurant were managed by his servant, Shyamlal Missir. Under a licence agreement with the railway authorities, the appellant obtained a vendor’s licence dated 9 January 1952, authorising him to sell items such as sweetmeats, betel, bidi and cigarettes at the Howrah goods shed, but the licence did not expressly authorise the sale of butter. On 2 December 1953, while the licence was still in force, the Health Officer of Howrah Municipality, accompanied by his Sanitary Inspector and a peon, inspected the establishment. They observed that butter was being displayed in glass jars placed on a table between the customers and the vendor. At that time the appellant was absent and the servant Shyamlal was attending to customers. The Sanitary Inspector removed three samples from a one‑pound slab of butter taken from a jar that was openly displayed on the counter. The samples were placed in clean bottles, sealed, labelled on the spot and recorded on a seizure list that Shyamlal signed. In addition, a payment of Rs 2 was handed to Shyamlal as consideration for the sampled butter. One of the samples was forwarded to the Health Department of the Government of West Bengal for laboratory analysis. The Public Analyst of West Bengal reported that the butter was grossly adulterated, containing no butter fat and a large excess of water. On 2 January 1954, the Sanitary Inspector filed a complaint before the Howrah magistrate, seeking summons against the appellant and his servant Shyamlal for alleged offences under sections 488, 406 and 407 of the Calcutta Municipal Act, 1923, as extended to the Municipality of Howrah. The complaint bore the signature of the Health Officer, indicating his sanction. Consequently, the appellant and his servant were prosecuted. They contended that the transaction did not involve a voluntary sale nor the sale of butter at all. The learned Magistrate who tried the case initially concluded that there was no case for the sale of adulterated butter. He explained that his finding was based on the observation that the butter seized by the Sanitary Inspector had not been purchased from the same jar that was being used for sales to customers.

After the butter had been sold to other customers, the learned magistrate who originally tried the case acquitted both the accused persons. The Administrator of Howrah Municipality then filed an application for revision before the High Court of Calcutta. The High Court set aside the acquittal order and directed that a new trial be conducted by a different magistrate. At the retrial the appellant raised several points, one of which asserted that, at the relevant time, the Health Officer of the municipality lacked the authority to sanction a prosecution. The second‑instance magistrate, after examining all the factual issues, found the appellant guilty on every point of fact. Regarding the question of sanction, the magistrate referred to certain orders issued by the Chairman of the municipality and concluded that the delegation of authority to the Health Officer, as contained in one of those orders, had not been revoked; consequently, the Health Officer was deemed competent to sanction the prosecution. The magistrate therefore convicted the appellant under sections 406 and 407 read with section 488 of the Calcutta Municipal Act and imposed a fine of Rs 200, or, in default of payment, simple imprisonment for thirty days. The appellant subsequently moved the learned Sessions Judge of Howrah seeking a reference to the High Court, but the request was denied. An application for revision was then presented to the High Court, where a single judge summarily dismissed it. From that summary dismissal the appellant obtained, through a Division Bench of the High Court, a certificate granting leave to appeal to this Court under Article 134(1)(c) of the Constitution.

While granting the certificate, Das Gupta, J., delivering the Division Bench’s decision, observed that on 4 July 1951 the Health Officer of the municipality no longer possessed the power to order prosecution in any matter concerning the Health Department, and that such power at that time was vested in the Vice‑Chairman of the municipality, Shri Sankar Lal Mukherjee, by virtue of a delegation made by the Chairman in an order identified as Exhibit‑D. He further noted that on 12 December 1952 the newly appointed Chairman, Shri K. C. Datta, issued another order revoking the earlier 4 July 1951 order insofar as it pertained to the Health Department. Accordingly, after 12 December 1952 the Chairman of Howrah Municipality alone was the only person competent to exercise the powers of Commissioners under Section 537 of the Calcutta Municipal Act. Das Gupta, J. contended that if proceedings are not instituted by the Commissioners in accordance with Section 537, such proceedings cannot constitute the legal basis for any conviction for violation of that Act; therefore, the conviction in the present case must be held to have no legal foundation. He expressed the view that the true import and effect of the provisions of Section 537 of the Calcutta Municipal Act, 1923, represented a question of general public importance that should be resolved by this Court. The present appeal arrived before the Court on the basis of the aforesaid certificate. On behalf of the appellant it was argued that (1) the appellant was not responsible…

The Court noted that the appellant argued that (1) the licence did not permit the sale of butter and therefore the appellant was not responsible for the sale, and (2) that there was no adulteration of butter because the laboratory sample contained no butter fat. The Court agreed with the conclusion of Justice Hidayatullah on those two points and saw no need to repeat his reasoning. The Court then turned to examine whether the Health Officer possessed the power and authority to sanction the prosecution in the present matter. On this issue the Court reached a view that differed from the opinion expressed by Justice Hidayatullah. The Court observed that it is not contested that the sanction for prosecuting the sale or storage of adulterated food falls within the jurisdiction of the Municipality’s Health Department, and that any delegation of powers concerning that department necessarily includes the authority to sanction such prosecutions unless the delegating order expressly excludes it. The Court recalled that, before the High Court, at the stage of seeking a certificate for leave to appeal, counsel for the Municipality relied on section 51 of the Bengal Municipal Act, 1932, arguing that the Chairman was empowered to exercise all powers vested in the Commissioners and could further delegate those powers to any other municipal officer. The Court now considered that the applicable provision is section 12 of the Calcutta Municipal Act, 1923, as it applies to Howrah. Under subsection (1) of that section, the Commissioners may, by a resolution passed at a special meeting, delegate 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, to the Chairman. Under subsection (2), the Chairman may, by a written general or special order, redelegate to the Vice‑Chairman or any municipal officer any of the powers, duties or functions that have been delegated to him by the Commissioners. Accordingly, the Court accepted the same basis that the High Court had used with reference to section 51 of the Bengal Municipal Act, 1932: that the Commissioners could delegate to the Chairman their powers under section 537 by a resolution of a special meeting, and that the Chairman could in turn redelegate those powers by a general or special order to the Vice‑Chairman or a municipal officer. The question before the Court was whether such redelegation had been effected by a valid and subsisting order at the relevant time. The relevant point in time was the date of the complaint, which was lodged on 2 January 1954, and the Court therefore needed to determine the state of the delegation on that date. The Court noted a difficulty for the respondent: the respondent had produced no evidence showing that the requirements of section 12(1) of the Calcutta Municipal Act, 1923 had been complied with, namely that the Commissioners had passed a resolution at a special meeting delegating the powers in question.

In this case the Court examined the series of orders issued by the Chairman of the Howrah Municipality and found that the evidence presented raised two significant difficulties. The first difficulty concerned the delegation of powers under section 537, which the respondent had failed to prove was properly effected, but the Court set that aside for the present discussion because no specific question about the Chairman’s powers was raised and consequently no evidence was offered on that point. The second difficulty, which the Court regarded as insurmountable, involved the contents of the Chairman’s Order Book that had been filed. The Order Book contained extracts of orders dated from May 9 1938 to April 22 1957, yet it did not disclose the exact terms or dates of the orders and it only referred to orders under other statutory sections, not to any order under section 537. Because the Book was of little assistance, the Court turned to the five orders that had been exhibited separately.

The first of those orders, dated February 6 1948, recorded that the then Chairman delegated to the Vice‑Chairman all of his powers, duties and functions as Chairman concerning seven departments, including the Health Department. The second order, issued on December 20 1949, was worded as follows: “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 was dated April 7 1951, issued on the eve of a municipal election, and it provided that, “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.” Although the precise date of the subsequent election was not known, it was admitted that the new Executives assumed office at some time between April 7 1951 and July 4 1951.

On July 4 1951 the newly elected Chairman issued another order stating: “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 and final order, dated December 12 1952, revoked the July 4 1951 order insofar as it related to the Health Department, declaring that the Health Department would henceforth be under the direct charge of the Chairman until further orders, with effect from December 15 1952.

The Court then considered the cumulative effect of these five orders. It observed that the February 6 1948 order transferred the Chairman’s authority over the Health Department to the Vice‑Chairman. The subsequent December 20 1949 order further delegated specific powers to the Health Officer, namely the authority to order prosecutions and to sign prosecution sheets for cases involving the Health and Conservancy Departments. The later orders introduced time‑limited delegations and subsequent revocations, creating a complex pattern of delegation that required careful analysis to determine the operative authority at the material date of the complaint.

The earlier delegation had authorised the Health Officer to deal with complaints concerning the Health and Conservancy Departments. On 7 April 1951 the Chairman issued a further order that imposed a temporal limitation expressed as “Till the election of the Executives by the new Board.” The Court was asked to consider whether that time limitation terminated the operation of the earlier order of 20 December 1949 at the moment the new Executives were elected, so that thereafter the position would be governed only by the orders dated 4 July 1951 and 12 December 1952. Viewed at first sight, the Court found that the 7 April 1951 order did affect the operation of the 20 December 1949 order. The two orders could not coexist without reading the earlier one as having been modified by the later one. The earlier order had delegated the Chairman’s authority in respect of certain specific matters to the Health Officer, whereas the later order declared that it delegated all of the Chairman’s powers to the respective officers of the departments until the election of the new Executives. The Court emphasized the word “all” in the later order, concluding that it must also encompass the particular powers that had been assigned by the earlier order. It was not plausible that, in the same field, one order would operate without limitation while another operated only for a limited period. Nevertheless, submissions were made that the two orders did not operate in the same field, and three reasons were advanced: first, that the 7 April 1951 order was a general order that did not affect the special order of 20 December 1949, invoking the principle that general provisions do not derogate from special ones; second, that the time limit applied only to the delegations made by the 7 April 1951 order itself; and third, that allowing the time limit to apply to earlier administrative orders would create great inconvenience by causing those orders to cease abruptly when the new Executives assumed office.

The Court proceeded to address those reasons and held that the issue was not one of applying the principle that general provisions do not derogate from special ones. Even if there were doubt about the applicability of that principle to orders by which the Chairman re‑delegated powers originally vested in him by the Commissioners, the proper answer lay in the actual wording of the 7 April 1951 order. That order made an explicit exception in favour of the Vice‑Chairman, stating “except those that are delegated to the Vice‑Chairman.” This reference clearly concerned delegations that had already been made to the Vice‑Chairman, because the order itself did not create any new delegation in his favour. Consequently, the Court concluded that the time limitation applied to all delegations except those already assigned to the Vice‑Chairman.

The Court observed that the order of April 7, 1951 expressly exempted only those delegations that had been made in favour of the Vice‑Chairman. It noted that the order created a single, explicit exception and that, had the drafters intended to create additional exceptions, the wording would have reflected such an intention. Because the order contains no language to that effect, the Court concluded that the provision was deliberately drafted in the broadest possible terms to cover all delegations of power except those specifically granted to the Vice‑Chairman. The Court stated that it was not persuaded by the argument that applying the time limit would cause administrative inconvenience. Instead, it explained that the purpose of the April 7, 1951 order was to allow the newly appointed Chairman to issue his own delegations of authority without restricting the discretion of the incoming executive officers, which is why a temporal limitation on delegations was introduced. The Court further remarked that the record did not contain a complete list of every delegation made by the new Chairman; only two delegations were found: one dated July 4, 1951 and another dated December 12, 1952. The July 4, 1951 delegation transferred the Chairman’s powers to the Vice‑Chairman for six departments, including the Health Department, and it was noted that the earlier delegation to the Vice‑Chairman had been made without any time limitation. The December 12, 1952 order was described as particularly significant because it not only revoked the July 4, 1951 delegation but also declared that “the Health Department shall hence‑forth be direct under my charge until further orders.” The Court reasoned that, had any previous special orders concerning the Health Department still been operative on December 12, 1952, the Chairman would not have used the language employed in that order. Consequently, the Court held that, in the absence of any subsequent delegation order evidenced in the record, the Health Officer of the Howrah Municipality did not possess the delegated authority to initiate criminal proceedings against the appellant at the time the complaint was lodged. The Court then turned to the question of whether a private citizen could file such a complaint and examined whether the provisions of section 537 of the Calcutta Municipal Act, 1923, as applied to the Municipality of Howrah, were merely permissive or obligatory. It stressed that this required a careful reading of section 537, which provides that the Commissioners may (a) institute, defend, or withdraw from legal proceedings under the Act or any rule or by‑law made thereunder; (b) compound any offence against the Act, any rule or by‑law, where such compounding is permitted by any prevailing enactment; (c) admit, compromise, or withdraw any claim made under the Act or any rule or by‑law; and (d) obtain legal advice and assistance as they deem necessary for the purposes set out in the preceding clauses.

In this case, the Court noted that the language of section 537 permitted the Commissioners, from time to time, to obtain legal advice and assistance whenever they thought it necessary or expedient for any of the purposes listed in the preceding clauses or for the lawful exercise or discharge of any power or duty vested in or imposed upon the Commissioners or any municipal officer or servant. The appellant argued before the Court that the provisions of section 537 were obligatory. The argument relied on the principle applied by the Privy Council in Nazir Ahmad v. King Emperor, which held that when a power is granted to do something in a particular manner, the action must be carried out in that manner or not at all. Accordingly, the appellant’s counsel contended that the word “may” in section 537 did not need to be read as “must,” but that any legal proceeding instituted under the Municipal Act had to be conducted in accordance with the provisions of that Act and could not be undertaken otherwise. The respondent, by contrast, maintained that section 537 was merely enabling in nature, as indicated by the use of the word “may,” and that the general principle embodied in the Code of Criminal Procedure—allowing cognizance of an offence on a complaint by a private person—remained unaffected by section 537. These opposing positions were presented for the Court’s consideration. The Court concluded that the construction advanced by the appellant was the more sound and acceptable interpretation. The Court observed that the section enumerated several acts the Commissioner could perform, grouped under clauses (a) through (d), and that the focus was on clause (a), which authorized the Commissioner to “institute, defend, or withdraw from legal proceedings” under the Calcutta Municipal Act, 1923. It was clear, the Court said, that the provision did not compel the Commissioners to undertake those actions; for example, clause (d) expressly allowed them “to obtain such legal advice and assistance as they may from time to time think necessary or expedient,” demonstrating that the Commissioners were not obligated to obtain advice. The Court therefore affirmed that the use of the word “may” was appropriate in that context. Nevertheless, the Court addressed the remaining question of whether, if the Commissioners chose to exercise any of the powers listed in section 537, they must do so in conformity with the Act’s provisions. The Court held that they must, because otherwise the section would be rendered pointless. The Court reasoned that it would be nonsensical to have a provision that permitted acts to be performed independently of, or in a manner contrary to, the statutory framework established by the Act. The respondent’s suggestion that section 537 was enacted as an abundance of caution to enable the municipal corporation to spend money on legal proceedings was rejected. The Court explained that the Calcutta Municipal Act, 1923 already contained comprehensive provisions regarding corporate status, finance, loans, accounts, and taxation, including section 84, which directed that municipal funds be applied to all sums, charges, and costs necessary for carrying out the purposes of the Act. Consequently, no separate provision was required as an “abundant caution.” The Court therefore could not accept the respondent’s explanation as correct.

In this case, the Court observed that the respondent’s counsel advanced the argument that section 537 of the Calcutta Municipal Act, 1923 was inserted merely as a precaution to permit the municipal corporation to spend money on instituting legal proceedings. The Court was not persuaded by that submission. It noted that, like every other Municipal Act, the Calcutta Municipal Act, 1923 contains a provision—section 5—that declares the municipality to be a body corporate. The Act also contains comprehensive provisions dealing with finance, loans, accounts, and taxation. In particular, the Court quoted section 84, which provides that “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 of the provisions of this Act,” and further adds that the same money shall also be applied to all sums payable out of the Municipal Fund under any other enactment then in force. From this language, the Court concluded that there was no need for any additional, separate provision to authorise expenditure in connection with the matters mentioned in section 537. Consequently, the Court declined to accept the respondent’s explanation that section 537 had been introduced “by way of abundant caution.”

The Court then turned to other relevant provisions of the Act to illuminate the purpose of section 537. It noted that section 531 provides for the appointment of Municipal Magistrates to try offences under the Act and its rules or bylaws, while section 532 confers jurisdiction on those magistrates to take cognisance of offences committed in Calcutta. Section 533 empowers a magistrate to hear a case in the absence of the accused, and section 534 prescribes a limitation period for prosecutions. Section 535 specifies who may lodge a complaint concerning a nuisance, allowing either the municipality itself or any person who resides in or owns property in Calcutta to do so. The Court pointed out that sections 537, 538, and 539 follow this series: section 537 grants the municipality authority to institute legal proceedings; section 538 deals with suits brought against the municipality; and section 539 contains the standard indemnity provision. By examining this sequence, the Court inferred that the Act as a whole establishes a complete machinery for initiating and conducting legal actions before magistrates and other courts. Accordingly, the Court held that the only sensible interpretation is that the procedures set out elsewhere in the Act must be observed when exercising the powers conferred by section 537. To treat section 537 as merely enabling any private person to commence a legal proceeding would run counter to the overall scheme and tenor of the Municipal Act. The Court further remarked that no decision directly addressing section 537 of the Calcutta Municipal Act, 1923 had come to its notice, and it observed that different Municipal Acts employ varying phrasing; some Acts adopt language that leaves no doubt about the obligatory nature of similar provisions, as illustrated by the examples that follow.

Section 375 of the Bihar and Orissa Municipal Act, 1922 provides that no prosecution for any offence shall be instituted without the order or consent of the Commissioners, and Section 353 of the Bengal Municipal Act, 1884 is worded in similar terms. Because of that phrasing, some judicial decisions have held that the provisions involved are obligatory and that the sanction or consent of the Commissioners is required before a prosecution may be commenced. The Court, however, has not encountered any decision that directly addresses Section 537 of the Calcutta Municipal Act, 1923, except for one decision that will be mentioned later and that decision was rendered in an entirely different factual context. The Court may first refer to authorities that do not deal with a municipal act but with other statutes. Sections 82 and 83 of the Indian Registration Act, 1908 have given rise to divergent opinions, as illustrated by the cases Gopi Nath v. Kuldip Singh (1), Nga Pan Gaing v. King Emperor (2) and Emperor v. Muhammad Mehdi and Others (3). The Court does not consider those provisions of the Indian Registration Act to be on the same subject matter, and the case law interpreting those sections does not assist in solving the problem before the Court. The respondent’s counsel also relied on a decision of this Court in Dr. Sailendranath Sinha and Another v. Josoda Dulal Adikary and Another (4). That case concerned Sections 179 and 237 of the Indian Companies Act, 1913, and the Court held that those provisions did not indicate that a liquidator acting without a court direction would be acting illegally or that the action would be invalid. Because that decision was based on the language of the sections it considered, it offers no guidance for construing Section 537 of the Calcutta Municipal Act, 1923. Turning now to case law under municipal legislation, the Court notes the observation in Sisir Kumar Mitter v. Corporation of Calcutta that “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.” The respondent’s counsel relies on this passage to argue that the provisions of Section 537 are merely enabling provisions. It is worthy of note, however, that the precise issue decided in that case was entirely different. The question there was whether the provisions of Section 248 of the Criminal Procedure Code were affected or abrogated by Section 537 of the Calcutta Municipal Act. In that case the Sanitary Inspector of the Corporation, as the complainant, filed a petition of withdrawal, but the magistrate rejected

In that case the magistrate rejected the application for withdrawal. Subsequently, when the accused was not present, the authorities issued a warrant of arrest against him. The accused then appealed to the High Court, primarily arguing that the magistrate should have permitted the withdrawal because section 537 of the Calcutta Municipal Act was said to have altered the effect of section 248 of the Criminal Procedure Code and to have removed the magistrate’s discretion to refuse a withdrawal. The High Court rejected this argument, holding that section 248 of the Criminal Procedure Code had neither been repealed nor modified by section 537 of the Calcutta Municipal Act. The Court also noted incidentally that the municipal corporation, being created by statute, required a specific statutory power in order to institute, defend or withdraw from legal proceedings. The decision was not interpreted as addressing whether a private individual could commence a lawsuit under the Calcutta Municipal Act without relying on the Act’s provisions; it dealt only with the narrow issue that section 248 remained unchanged. The Court explained that this conclusion was correct because section 537 does not compel the municipality to withdraw from a suit nor does it obligate a court to accept such a withdrawal. The Court regarded the remaining observations in that judgment as obiter and chose not to examine their correctness, although counsel for the appellant had cited The Minister of Works and Planning v. Henderson and Others, arguing that mere incorporation without reservation gave a corporate body the right to sue and the duty to be sued. The Court then referred to the decision in Keshabdeo Kedia v. P. Banerjee, Sanitary Inspector, Howrah Municipality, which concerned section 535 of the Calcutta Municipal Act. In that case it was held that a magistrate could not act under section 535(2) on a complaint filed by a sanitary inspector in his personal capacity unless there was evidence that the inspector was authorized by the municipality’s chairman, was acting on behalf of the municipality, or owned or resided in Calcutta. That ruling supported the appellant to the extent that it limited a private person’s right to complain under section 535. The Court also mentioned The State v. Manilal Jethalal, where sections 481 and 69 of the Bombay Provincial Municipal Corporations Act were examined. Section 481 gave the commissioner authority to “take” or withdraw from proceedings concerning an offence under the Act. In that case the complaint was filed by a district inspector, and the argument was raised that the inspector lacked commissioner authorization to “take” proceedings. The Court addressed that argument in its observations.

In this case the Court observed that the purpose of section 69, sub‑section (1), is to enable the Commissioner to delegate his statutory powers to other municipal officers so that the Commissioner himself does not have to decide in every instance whether action should be taken against a person alleged to have violated the Act or its rules. The Court further noted that whenever the Act confers a power on the Commissioner, that power must be exercised either by the Commissioner personally or by an officer to whom the Commissioner has validly delegated the authority under section 69. However, the Court rejected the view that the phrase “take proceedings” should be limited strictly to the act of filing a formal complaint. It explained that the object of section 481 is to ensure that a person alleged to have committed an offence under the Municipal Act or the rules made thereunder is not subjected to prosecution unless the Commissioner himself, or a responsible officer, has had the opportunity to consider whether a prosecution is appropriate. Once such consideration has been made, the Court found no necessity to require that the actual complaint be lodged by the Commissioner or by the officer to whom his powers have been delegated. While acknowledging that “take proceedings” can include the act of lodging a complaint, the Court held that the expression also encompasses any act that results in the initiation of prosecution. This principle, the Court said, supports the appellant’s argument that whenever the Act gives a power to the Commissioner, that power may be exercised by the Commissioner or by a delegated officer. The Court cautioned that its earlier decision had adopted a broad interpretation of “take proceedings,” but that portion of the earlier decision was not relevant to the present case because the wording of section 537 of the Calcutta Municipal Act differs from the provisions previously considered. The Court then turned to four English decisions—Cole v. Coulton, Buckler v. Wilson, The Queen v. Stewart and Giebler v. Manning—in which private individuals were held competent to make complaints concerning (i) the consumption of refreshments in public resorts, (ii) the sale of margarine, (iii) acts of cruelty to animals, and (iv) the sale of unsound meat. In each of those cases the courts examined the specific statutes alleged to have been breached and concluded that those statutes did not contain any provision requiring that a complaint be made by a particular authority or in a particular manner.

The authorities previously cited do not effectively assist the respondent in proving that, despite section 537 of the Calcutta Municipal Act, a private individual may commence a legal proceeding under that provision. The cited cases, namely Ellis & Ellis 695; 121 E.R. 261, the decision reported in 1896 volume 1 Q.B.D. page 83, the decision reported in 1896 volume 1 Q.B.D. page 300, and the decision reported in 1906 volume 1 K.B. page 709, merely return the discussion to the original question concerning the true nature and significance of section 537 of the Calcutta Municipal Act. The Court observed that if section 537 is obligatory in the sense explained earlier, the appellant would be entitled to succeed; if, however, the provision is merely enabling, the respondent would be entitled to succeed.

The respondent’s counsel relied heavily on the decision in The Queen v. Stewart, which concerned the Diseases of the Animals Act of 1894. In that case, Lindley, L.J. held that, when read together, the relevant sections affirm the right of any person to prefer an information in the most significant terms. He further questioned whether the Act or the Order contained any clear restriction of that right that would limit proceedings to the borough council alone, and he concluded that he could find no such restriction.

In Giebler v. Manning, the issue was whether a private person could institute proceedings under section 47, sub‑section (2) of the Public Health (London) Act of 1891. Lord Alverstone, C.J. considered the object of the statute, which was to protect the public against the offering of diseased meat for sale. He reasoned that, had the legislature intended to restrict the right to bring proceedings for penalties to a limited class of persons such as medical officers or sanitary inspectors, it would have inserted explicit words to that effect, thereby removing the right from private persons.

The Court also referred to the decision in The Queen v. Cubitt, which arose under the Sea Fisheries Act of 1883, section 11 of which provided that the provisions of the Act “shall be enforced by sea‑fishery officers.” The judgment held that this wording meant that only a sea‑fishery officer could prosecute an offence under the Act, and a rule directing judges to hear and determine a summons issued by a private individual was dismissed. Lord Coleridge, C.J. observed that if any person may enforce the Act, section 11 would be useless. He further stated that it is unnecessary to employ negative language to exclude proceedings by persons other than sea‑fishery officers, noting that if an Act stipulated that the Attorney‑General alone was to sue for a penalty, no other person could sue, making the enabling clause redundant.

Justice Hidayatullah explained that if a statute permitted every person to sue for a penalty, then the special authority granted to the Attorney‑General to bring such a suit would become redundant and useless. By the same logic, if any individual could commence a proceeding under section 537 of the Calcutta Municipal Act, that provision would lose its practical purpose. The court observed that even without section 537 the municipality could still perform the acts described in the statute, and therefore it was difficult to see why the legislature would include a provision that merely duplicated existing powers unless it intended to give the municipality a specific authority that must be exercised only in accordance with the Act. The court rejected the suggestion that the lack of a complaint by the commissioners, the chairman, or a delegated authority amounted only to a minor error or irregularity that could be remedied under section 537 of the Criminal Procedure Code. Attention was also drawn to section 79 of the Calcutta Municipal Act of 1923; the court held that the absence of a proper complaint was not a trivial defect but struck at the very jurisdiction and the initiation of proceedings. Consequently, the appeal was allowed, the conviction and sentence against the appellant were set aside, and any fine that had been paid was ordered to be refunded to the appellant.

The appeal was filed under a certificate of fitness issued pursuant to Article 134(1)(c) of the Constitution by the Calcutta High Court. The appellant, Ballabhdas Agarwala, challenged his conviction under sections 406 and 407 read with section 488 of the Calcutta Municipal Act as applied to Howrah, together with the imposition of a fine of two hundred rupees, which in default would have resulted in simple imprisonment for thirty days. Mr Agarwala owned a chain of restaurants, one of which operated at the Howrah Railway Station. He had entered into an agreement with the railway and obtained vendor’s licence No. 54 of 1951, dated 9 January 1952, authorising him to sell or display for sale sweetmeats, betel, bidi, cigarettes, tea, cake, bread, biscuits and parched gram at the Howrah goods shed from 6 January 1951 to 31 December 1953. On 2 December 1953 the Health Officer, a Sanitary Inspector and a peon of the Howrah Municipality inspected the restaurant, where the appellant’s servant, Shyamlal Missir, was in charge. On the counter a jar labelled “butter” was present and was being sold to customers. The Sanitary Inspector removed three samples from a one‑pound slab of the substance, placed each sample in a clean bottle, sealed and labelled them. Missir received a payment of two rupees for the sample as required by the rules. One bottle was retained with Missir, while the remaining two bottles were handled as follows: one was sent to the Public Analyst of West Bengal for laboratory analysis, and the other was retained for further reference. The analyst’s report concluded that the sample contained no butter fat and an excess of water. On the basis of this report, the Health Officer sanctioned prosecution of the appellant and Missir.

The prosecution against the appellant and the servant named Missir was based on a complaint that bore the signatures of both the Sanitary Inspector and the Health Officer. The matter was initially tried in a summary procedure, and the presiding magistrate acquitted the two accused. The magistrate’s reasoning was that, in his view, the butter samples examined by the authorities had not been taken from the jar that was actually used to sell butter to the customers, but rather from a different jar. The High Court, however, disagreed with the magistrate’s conclusion and set aside the acquittal. Consequently, the case was ordered to be retried, and at the retrial the appellant was convicted and sentenced in accordance with the findings mentioned earlier. A criminal motion was then moved before a Sessions Judge who possessed appellate jurisdiction, but that judge rejected the motion. Undeterred, the appellant filed a revision before the High Court; Justice Debabrata Mookerjee dismissed this revision in a summary manner. Subsequently, the appellant obtained a certificate of fitness under article 134 (1)(c) of the Constitution and consequently lodged the present appeal. In the course of the appeal three distinct points were raised for consideration.

The first point asserted that, according to the terms of the licence and the agreement governing the appellant’s business, he was not authorised to sell butter and therefore could not be held responsible for the alleged sale. It was further contended that the sale might have been effected by Missir in her own capacity, independent of the appellant. The Court found this contention to be without substance, noting that it was undeniable that the seized butter had been sold from the appellant’s restaurant. Sections 406 and 407 of the Calcutta Municipal Act define the sale of an adulterated or mis‑branded article as an offence and expressly impose liability on every person who sells such an article, whether directly or indirectly, himself or through another person. The Court explained that even if the transaction occurred outside the scope of the vendor’s licence, the article was nevertheless sold, thereby attracting liability. The statutory language vicariously attaches responsibility to a master for the acts of his servants, and the maxim “qui facit per alium facit per se” applies. Accordingly, the Court concluded that the sale was made for and on behalf of the proprietor and that, in view of the clear wording of the sections, the proprietor was answerable for the offence.

The second point advanced by the appellant was that the case did not involve adulteration at all, because the laboratory analysis of the sample revealed that no butter‑fat was present. To support this argument, the appellant referred to a decision of the Punjab High Court in Mangal Mal v. State, asserting that the prosecution for selling “adulterated” butter was thus defective. The Court acknowledged the ordinary meaning of “adulteration” as the mixing of harmful or foreign substances with the principal article, but observed that the definition contained in the Act had been expanded to include articles whose contents do not contain the essential substance either wholly or partially. In light of this broadened definition, the Court held that the appellant’s criticism concerning the absence of butter‑fat could not be pressed successfully.

The third and principal argument, on which the certificate of fitness was based, was that the complaint filed before the Court had been made by a person who lacked the authority to do so, rendering the complaint invalid. The appellant’s submission examined several provisions of the Calcutta Municipal Act, 1923, as applied to Howrah, and of the Bengal Municipal Act, 1932, together with the relevant notifications issued under those statutes. This line of argument was presented for the Court’s consideration as the final point of contention in the appeal.

The Court examined provisions of the Calcutta Municipal Act of 1923 as it applied to the Howrah municipality and also the Bengal Municipal Act of 1932, together with the various notifications issued under those statutes. The first statutory provision that was cited, with reference to the decision reported in A.I.R. 1952 Pun. 140, was section 537 of the Calcutta Municipal Act as it applied to Howrah. Section 537 states that the Commissioners have the authority to (a) commence, defend or withdraw from legal proceedings under the Calcutta Municipal Act, 1923, as it stood in the Municipality of Howrah or under any rule or by‑law made thereunder; (b) compound any offence against the same Act or any rule or by‑law thereunder that may lawfully be compounded under any enactment then in force; (c) admit, compromise or withdraw any claim made under the same Act or any rule or by‑law thereunder; and (d) obtain legal advice and assistance as they deem necessary or expedient for any of the purposes mentioned in the preceding clauses, or for securing the lawful exercise or discharge of any power or duty vested in or imposed upon the Commissioners or any municipal officer or servant.

The appellant contended that only the Commissioners themselves had the capacity to institute the complaint in question. In response, the Court noted that section 12 of the Calcutta Municipal Act, as applied to Howrah, permits the Commissioners to delegate their functions to the Chairman through a resolution passed at a special meeting. Furthermore, the Chairman may, by a general or special written order, re‑delegate any of the powers that have been delegated to him to the Vice‑Chairman or to any other municipal officer. This delegation power extends to both the Commissioners and the Chairman with respect to powers under the Bengal Municipal Act as well. The Divisional Bench of the Calcutta High Court had previously referred to section 51 of the Bengal Municipal Act, 1932 as a source of delegation authority; however, the Court observed that section 51 has no effect in Howrah because section 542 of the Calcutta Municipal Act expressly repeals it in that municipality.

Consequently, the Court limited its analysis to section 12 of the Calcutta Municipal Act as it applied to Howrah. As summarized, that provision allows a chain of delegation from the Commissioners to the Chairman and from the Chairman to the Vice‑Chairman or any other municipal officer. The Court inferred that, by virtue of this provision, the Chairman was presumably vested with the powers of the Commissioners, although no documentary proof of such delegation was produced in the present proceedings. The Court observed that no objection was raised regarding the absence of such proof, and therefore it did not pursue the matter further. The Court indicated that, had an objection been raised at the appropriate stage, the prosecution would have been required to adduce evidence of the delegation, if such evidence existed. Because the objection was not raised, the Court could not examine its merits.

Because the objection concerning the lack of evidence of delegation was not raised at a proper stage of the proceedings, the Court could not determine at this point whether the objection was well founded. The remaining question therefore concerned the re‑delegation of powers from the Chairman to other municipal officers and, specifically, whether such delegation was in existence on the date when the prosecution against the appellant was started. To resolve this issue, the Court examined a series of municipal orders that had been issued over time. The first order, dated 6 February 1948, was an order of the Howrah Municipality in which the Chairman, S. K. Mukherji, delegated to the Vice‑Chairman, Dr. Beni Chandra Dutta, all of his powers, duties and functions as Chairman with respect to the Health Department. The second order, dated 20 December 1949, again issued by Chairman S. K. Mukherjee, delegated to the Health Officer the power to order prosecution and to sign prosecution sheets in matters concerning the Health and Conservatory Departments. The third order, dated 7 April 1951, was an order of the Howrah Municipality in which Chairman S. K. Mukherji delegated to the Vice‑Chairman, Sri Sankar Lal Mukherji, all of his powers, duties and functions as Chairman over the Health Department. The fourth order, dated 4 July 1951 and signed by Chairman K. C. Dutta, granted the same delegation to the Vice‑Chairman for the Health Department. It was admitted that the election of the Executives by the new Board took place between 7 April 1951 and 4 July 1951. Subsequently, on 12 December 1952, Chairman K. C. Dutta issued an order revoking his earlier order of 4 July 1951 to the extent that it related to the Health Department, declaring that the Health Department would henceforth be placed directly under his charge, with the revocation to take effect from 15 December 1952. These were the operative positions of the municipal orders on 2 December 1953, the date of the alleged offence, and also on 5 January 1954, when the complaint was filed.

The Court noted that a municipal corporation is a body of persons that is given a legal personality by the statute under which it is created. The statute confers on the corporation perpetual succession and a broad authority to act in many respects, including the inherent power to sue or be sued in its corporate name, a power expressly provided for in the constituting statutes. In the absence of a contrary provision, the corporation must act as a corporation in such matters. Because it would be impractical for the entire corporate body to convene and decide each individual case, the law provides for the delegation of the corporation’s functions to the Chairman. Even the Chairman’s workload would be excessive, so the statute further permits the Chairman to re‑delegate his delegated powers to other officers of the municipality. This framework of delegation and re‑delegation formed the background against which the Court examined the series of orders and determined the state of authority on the relevant dates.

Section twelve of the Calcutta Municipal Act authorises the Chairman to delegate any of his powers, duties or functions either to the Vice‑Chairman or to any municipal officer. The Act makes a clear distinction between officers, who exercise municipal powers, and ordinary servants, who merely follow orders without exercising any defined municipal authority. This distinction was noted in Abbott’s Corporations, volume eleven, page 1456, and the same principle is reflected in the provisions of the Act that are currently before the Court.

The Act requires that a municipal officer who receives a delegation must perform the delegated tasks himself, unless the Act expressly authorises him to further delegate those tasks. Because the statute does not grant such further delegation power, an officer who has been delegated authority by the Chairman is required to execute that authority personally. A brief review of the Act demonstrates that it confers upon the Chairman a large number of functions. In addition, the Chairman also holds functions that have been delegated to him by the Commissioners.

In practice, most municipalities keep an order book in which the Chairman records the officers to whom he has delegated his functions. In the present case, extracts from the Chairman’s orders covering the period from 9 May 1938 to 22 April 1957 (exhibit A) were placed on record. Those extracts reveal delegations made to the Engineer, the Water Works Overseers and other officials. The extracts occupy thirteen pages of small print in the paper book and contain one hundred and thirty‑seven separate special delegations. If the entire order book were produced, it would show an even larger number of special delegations, each conferring powers that can be exercised only by the specific officer named. These powers are not removed each time the Chairman issues a general order assigning his functions to the Vice‑Chairman or each time he withdraws a delegation.

Notification number 11, which was cited earlier, was a special delegation and would be expected to appear in the order book as a specific assignment of duties to the Health Officer. After that delegation, only the Health Officer was authorised to exercise the delegated power. It has been argued, however, that the order dated 7 April 1951 (order 111) effectively cancelled the earlier order of 20 December 1949 (order 11) or at least limited its effect until the election of a new Board. The Court does not accept that interpretation. Although the Chairman stated that he had delegated all his powers and functions to the officers of the various departments pending the election of the new Board, those departmental officers possess both administrative and special powers.

The Court holds that a clear distinction must be drawn between a delegation that authorises an officer to perform a specific, special act—made by a special order—and a general delegation that merely provides for administrative control. Section twelve itself contemplates two kinds of orders, and it is indisputable that the order of 20 December 1949 (order 11) was a special order, whereas the order of 7 April 1951 was a general order.

In this case the Court explained that the order issued on 20 December 1949 (No 11) was a special order, whereas the order dated 7 April 1951 was a general order. The earlier order dated 6 February 1948 (No 1) had delegated all of the Chairman’s powers concerning the Health Department and other departments to the Vice‑Chairman. That delegation did not terminate the order book (Exhibit A), nor did it mean that from 6 February 1948 only the Vice‑Chairman could perform every function recorded in the thirteen‑page paper book, including those relating to other departments. The Court distinguished between the delegation of administrative powers in general and the delegation of authority to carry out particular acts. The general order in favour of the Vice‑Chairman (No 1) therefore did not diminish the effect of the Chairman’s special orders. A general order cannot be interpreted as a special one, because “generalia verba sunt generaliter intelligenda” and general words never derogate from specific provisions. The general order merely conferred any residual powers that were not already covered by special delegations made from time to time. Although the term “all” was used, the Court emphasized that the overall intention and purpose of the delegation had to be considered. As the legal maxim states, “Qui haeret in litera haeret in cortice” (Broome’s Legal Maxims, 9th Ed., p. 443). The interpretative rules applicable to statutes are the same as those that apply to deeds and instruments, and not the reverse. To hold otherwise would imply that after the 6 February 1948 order (No 1) every function, duty and power—including those expressly mentioned in the order book—became the sole responsibility of the Vice‑Chairman. Under such a view the Vice‑Chairman alone would be authorised to inspect and examine house drains under section 275, approve sites and positions of cesspools under section 279, issue or serve notices under section 503, inspect service pipes under Rule 5(3), examine water pipes under Rule 6, and so on. The Court observed that accepting this consequence of the 6 February 1948 order would be the same as asserting that the 7 April 1951 order affected the 20 December 1949 order, as some parties claimed. While it could be argued that such an effect might be declared, the Court said that conclusion would arise only by ignoring the essential distinction between special and general orders, a distinction for which no interpretative principle exists to support it. The special delegation made on 20 December 1949 could cease only if it were expressly withdrawn or impliedly repealed. Although the delegation was made by Mr S. K. Mukherjee, who later left office, the Court held that the delegation was not personal to him but attached to the office itself, and therefore it could cease to operate only if cancelled by the same officeholder or his successor in the same manner. The argument that the delegation ended because of a time limit was also addressed, with the Court noting that such a limitation, if any, must be found in the specific language of the order that created the delegation.

The Chairman issued Order No 111 on April 7, 1951, which declared that, except for powers delegated to the Vice‑Chairman, all remaining powers and functions were to be exercised only until the new Board elected its Executives. The order expressly imposed a time‑limit on the powers that it itself delegated. This is evident from the language of the order, which states: “Till the election of Executives by the New Board I delegate all my powers and functions...... to respective officers of departments.” The argument advanced by the respondents was that this order was intended to impose a time‑limit on every delegation that had been made, even those made prior to that date. The Court observed, however, that the general order could not affect a special delegation for the reasons already discussed. The specific power to order prosecution and to sign prosecution sheets had been specially conferred by Order No 11 dated December 20, 1949, and that special delegation was not revoked by the later general order, which could not be read as a special revocation, nor was it intended to attach a time‑limit to that power. The phrase “officers of the department” in the 1951 order was not meant to refer to officers who had been given special powers for particular acts. The 1951 order was framed in general terms and placed a time‑limit only on the delegations it made. It said nothing about delegations of a special kind that already existed, nor did it intend to suppress all special orders. Accordingly, the order did not expressly or implicitly affect the earlier special delegation. In the Court’s opinion, the special delegation made by Order No 11 of December 20, 1949 therefore remained intact, which enabled the Health Officer to file the complaint. Because this conclusion rendered unnecessary any determination of whether section 537 of the Calcutta Municipal Act is merely enabling or mandatory, or whether, absent a proper delegation, the Health Officer, any other municipal officer, or a private individual could have instituted prosecution, the Court held that the appeal had no force and should be dismissed. In the final order of the Court, it was declared that, in view of the majority judgment, the appeal was allowed.