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PETITIONER: BALLAVDAS AGARWALA

       Vs.

RESPONDENT: SHRI J. C. CHAKRAVARTY

DATE OF JUDGMENT: 15/01/1960

BENCH: DAS, S.K. BENCH: DAS, S.K. SARKAR, A.K. HIDAYATULLAH, M.

CITATION:  1960 AIR  576            1960 SCR  (2) 739  CITATOR INFO :  R          1968 SC 822  (10)  R          1968 SC1339  (6,7)  R          1969 SC 267  (5)  R          1970 SC   7  (3)

ACT: Criminal  Trial-Prosecution  for  offence  under   Municipal Act--Authority  to  initiate  prosecution  Delegation  of-If private  citizen can file complaint-Calcutta Municipal  Act, 1923 (Ben.  111 of 1923) ss. 12 and 537.

HEADNOTE: 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 2,  954 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 to sanction the prosecution.  Under  the Act the power to institute 740 a  complaint  vested  in the Commissioners  but  they  could delegate  the power to the Chairman and the  Chairman  could also  by a general or special order in  writing  re-delegate the  power  to  the    Vice-Chairman  or  to  any  municipal officer.  The question of the   delegation of their power by the  Commissioners was not specifically 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 passed 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 Executives by the New Board  I

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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, 1952, 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 own 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 authorities 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 delegate the same  to  the  Vice- Chairman or to any municipal      741 officer. The machinery provided in the Act must be  followed in enforcing its provisions, and it is against the tenor and scheme of the Act to hold that S. 537 is merely enabling  in nature. Nazir  Ahmed  v.  King Emperor, (1936)  L.R.  63  I.A.  372. referred to. Sisir  Kumar  Mitter  v. Corporation  of   Calcutta.  (1926) I.L.R. 53 Cal. 631, explained. Keshabdeo  Kedia v. P. Banerjee, Sanitary Inspector,  Howrah Municipality.  A.I.R.  (1943) Cal. 31 and State  v.  Manilal Jethalal A.I.R (1953) Bom. 365,referred to. Cole  v. Coulten,2 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,  held inapplicable. The Queen v. Cubitt. (1889) 22 Q.B.D. 622, relied on. Per  Hidayatullah,  1.  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, 1951.  The later order put  a time limit only on delegations made under that order and not on orders made before.

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JUDGMENT: 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. I  S.  K. DAS, J.-The appellant Ballavdas Agarwala  was  the proprietor of a restaurant in the Railway premises at Howrah Railway  Station within the Municipality of Howrah, and  his servant  Shyamlal Missir was in charge of  that  restaurant. Under  an  agreement  with  the  Railway  authorities,   the appellant- 742 had  taken out a vendor’s license dated January  9,1952,  by which  he  was  permitted  to  sell  or  exhibit  for   sale sweetmeats,   betel,   bidi,  cigarettes   etc.,   but   not specifically  including  butter, at the Howrah  goods  shed. On December 2, 1953, during the currency of the license, the Health Officer of the Howrah Municipality    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 customers 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 which 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 Howrah.   The complaint was signed in token of  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  butter was  being sold to other customers.  The learned  Magistrate acquitted both the accused persons. 743 The Administrator, Howrah Municipality, then   preferred  an

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application  in revision to the High Court of Calcutta.  The High Court set aside the order of acquittal  and ordered  a retrial by another magistrate. At  the  retrial  several points were taken on behalf of the appellant one of  which was that at the relevant      time the Health Officer had no power to sanction the    prosecution.  This time the  trying magistrate foundagainst  the appellant on all  questions of fact, and onthe 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 thoseorders  had not been revoked and,  therefore,  the HealthOfficer 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 th 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    Department and that power was at that time  vested in the Vice-Chairman of  the Municipality Shri Sankar Lal Mukherjee, as a  result of  delegation by the  Chairman by the order, Exhibit-D.  On the 12th  December, 1952, the new Chairman Shri K. C. Datta passed a further order revoking his previous order dated 4th July, 1951, so far as it related to the Health Department. The position, therefore, after 12th December, 1952, was that the Chairman of the Howrah Municipality 744 himself  was the only person compent to exercise the  powers of Commissioners under Section 537 of the Calcutta Municipal Act. If,  therefore,  the proceedings unless  instituted  by  the Commissioners in accordance with Section 537 of the Calcutta Municipal Act cannot form the legal basis of any  conviction for  contravention  of  any  provision  of  that  law,   the conviction  in  this  case must be held  to  have  no  legal basis." He  expressed the view that the question of the true  import and  effect  of  the provisions of s. 537  of  the  Calcutta Municipal  Act,  1923  was  a  question  of  general  public importance which should be settled by this Court. 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

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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 Municipal                       745 Act, 1932 for his contention that the Chairman was  entitled to exercise all the powers vested in the  Commissioners  and could delegate his powers to  any  other Municipal  Officer. It appears now that the  relevant  section is s. 12  of  the Calcutta Municipal Act,  1923  as applied to  Howrah.  Under sub-section (1) of   s.  12,  the  Commissioners  may  by  a resolution  passed  at  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 22, 1957, was 95 746 filed  in the case.  This book is, however, of  very  little use  to  us.   It  does not give the  terms  of  the  orders northeir  dates.   It contains a reference to  orders  under other sections, but not under s. 537.  The five orders  with which  we  are concerned were exhibited  separately  and  to those  we  now  turn.  The first order  is  the  one   dated February  6, 1948, by which the then Chairman of the  Howrah Municipality delegated to the Vice Chairman all his  powers, duties  and  functions  as  Chairman  in  respect  of  seven departments  including  the  Health  Department.   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

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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 place 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                               747 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 chargeuntil  further orders.  This  will take effect from 15th December, 1952." The  question  before  us  is-what  is  the  effect  of  the aforesaid five orders ? It is clear that by the order  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 un- limited  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

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748 December  20, 1949, which is a special order and  for  this, the  principle  of  generalia specialibus  non  derogant  is invoked; secondly, it is said that the time limit imposed by the order dated April 7, 1951, related to    such delegation as  is  made by that order itself; and thirdly, it  is  said that  if the time limit imposed by the 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 terms  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   other exceptions,  the order would have said so.  The  order  does not say so; on the contrary, it is expressed in language  of the   widest   amplitude  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 object of the order of  April 7, 1951, was to leave the new Chairman free to pass his  own orders of delegation and not to fetter the discretion of the new  Executives  in any way ; that is why in the  matter  of delegation a time limit was imposed. We do not have in the records full details of all orders  of delegation made by the new Chairman.  We                           749 have  only two orders dated July 4, 1951, and  December  12, 1952.  By  order  dated  July  4,  1951,  the  new  Chairman delegated his powers to the Vice-Chairman    in  respect  of six departments including the Health    Department,   though the earlier delegation in favour   of the Vice-Chairman  was not subject to any time  limit. The order dated December 12, 1952, is important. It not merely revoked the order dated 4, 1951, but said that "the Health Department shall hence-forth 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

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necessary  to  read at this stage s. 537.  It  is  in  these terms:  "The Commissioners may- (a)institute,  defend,  or withdraw from  legal  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 Calcutta Municipal Act, 1923, as in 750 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 381. 751 clause (d) says "obtain such legal advice and assistance  as they  may  from  time  to time  think  it  necessary  or  or expedient  to  obtain etc." This obviously  shows  that  the Commissioners are not compelled to obtain legal advice.   In the  context,  the  use  of  the  word  may’  is   therefore appropriate.    But  the  question  still   remains-if   the Commissioners  wish  to do any of the acts mentioned  in  s. 537,  must they do so in accordance with the  provisions  of the Act ? We think that they must; otherwise s. 537  becomes clearly  otiose.   What is the necessity of s.  537  if  the Commissioners can do the acts mentioned therein  independent

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of  and  in,% 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 of 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. 537. There are other provisions of the Act which also throw  some light on the question.  Section 531 752 provides for the appointment of Municipal Magistrates’   for the trial of offences under the Act and the rules or    bye- laws made thereunder.  Section 532 provides for   cognisance of offence by Municipal Magistrates having   jurisdiction in Calcutta;  section  533 gives power to hear a  case  in  the absence  of  the accused person; 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  made  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  showsthat  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 that  any private  person may institute a legal proceeding  provisions of the Act. We now turn to such authorities as have been brought to  our notice.   We may, say at once that no decision  directly  in point  has  been  brought  to our notice.   It  is  well  to remember, however, that the phraseology adopted in different Municipal  Acts is not the same.  Some Municipal  Acts  have adopted  a phraseology which leaves no doubt in the  matter; e.g.  s.  375 of the Bihar and Orissa  Municipal  Act,  1922 which   says-"No  prosecution  for  any  offence  shall   be instituted without the order or consent of the Commissioners Section 353 of the Bengal Municipal Act, 1884 was in similar terms.   Having regard to the phraseology so adopted,  there are  decisions which say that the sections there  considered

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were      753 obligatory and sanction or consent of the Commissioners  was necessary.  We  have,  however, seen  no  decision  directly bearing on s. 537 of the Calcutta  Municipal    Act,    1923 except one (to which, we shall     presently   refer),   and that decision was given in an entirely different context. We  may refer first to some decisions which deal 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(2)  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 the court,     that  action would be  illegal or invalid. The decision proceeded  on  the  terms  of   the sections there considered     and   is   of   no   help   in construing s. 537 of the Calcutta  Municipal Act, 1923. Now, we come to the decisions under the Municipal Act.    In Sisir Kumar Mitter v. Corporation of Calcutta     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) 1 L.R. 11 Cal. 566.  (2) (1926) I.L.R. 4  Rangoon 437. (3) (1934) I.L.R. 57 All. 412.  (4) A.I.R. 1959 S.C. 51. (5)  (1926) I.L.R. 53 Cal. 631. 96 754 provisions  of s. 537 are merely enabling provisions. It  is worthy  of  note,  however, that the  precise  question  for decision in that case was entirely different.  The  question there raised was whether the provisions of   s.  248 of  the Criminal Procedure Code were affected or abrogated by s. 537 of  the Calcutta Municipal Act. What happened in  that  case was  that the Sanitary Inspector of the 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

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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 obligation  on  the Court to accept  such  withdrawal.   The other  observation made therein appear to us to  be  obiter, and it is unnecessary for us to consider the 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. (1) (1947) 1 K.B. 91. 755 The next decision is that of Keshabdeo Kedia v. P. Banerjee, Sanitary Inspector, Howrah Municipality(1). This -related to s. 535 of the Calcutta Municipal Act, and it was held that a magistrate  was not entitled to act under s. 535(2)  upon  a complaint  filed by the Sanitary Inspector in  his  personal capacity  in  the absence of anything to show  that  he  was authorised  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  complaint  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  Com- missioner’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 Commissioner himself (1) A.I.R. (1943) Cal. 31. (2) A.I.R. (1953) Born. 365. 756 or  some  responsible  officer has  had  an  opportunity  of applying   his  mind  to  the  question  as  to  whether   a prosecution should or should not be instituted.  But   once this has been done, there does not seem to be any particular necessity   for  requiring.  that,  if  it  is  decided   to prosecute,  the  complaint must actually be  lodged  by  the

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Commissioner,  or  the  officer,  to  whom  his  powers  are delegated.   It  is  quite  true  that  that  words  "  take proceedings"  may mean to lodge the complaint oneself.   But we  think  that that is not the only meaning  which  can  be given to these words.  It also means to do an act by which a prosecution would be lodged." This  decision also help the appellant in so far as it  lays down   that   whenever  the  Act  gives  any  power   to   a Commissioner,  the power must be exercised by him, or by  an officer, to whom the Commissioner’s power is delegated.  The decision  proceeded,  however, on a  somewhat  wide  meaning given  to  the words " take proceedings" that  part  of  the decision,,  as to the correctness of which we  say  nothing, does  not concern us here, because the words used in s.  537 -of the Calcutta Municipal Act are different. Our attention has been drawn to four English decisions where a  private 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 meat: Cole v. Coulton  (1); Buckler v. Wilson (2); The, Queen v. Stewart (3); Giebler v. Manning  (4).   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 obligatory 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 legal proceeding under the said Act.  They take us back (1) 2 Ellis & Ellis 695; 121 E.R. 261.  (2) (1896) 1  Q.B.D. 83. (3) (1896) 1 Q.B.D. 300.       (4) (1906) 1 K.B. 709. 751 to the point from which we started; namely, what  is     the true nature and import of s. 537 of the Calcutta   Municipal Act. If it is obligatory in the sense    explained  earlier, the  appellant  is  entitled to succeed.  If  it  is  merely enabling,  then the respondent is entitled to succeed.   The decision in The Queen v. Stewart (1)on which learned counsel for  the  respondent  strongly      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 significant  terms.   Is there anything in the  Act  or  the Order which so clearly restricts that right that we ought to say that in this 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  s. 47, sub-s. (2) ? -Lord Alverstone C.  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.  Cubitt  (3). This was a case under the Sea Fisheries Act, 1883 (46 and 47 Vict.  c. 22), s. 11 of which said: "The provisoes  of  this

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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: (1) (1896) 1 Q.B.D. 300.     (2) (1906) 1 K.B. 709. (3)  (1889) 22 Q.B.D. 622. 758 any  one  may enforce the Act, s. 11 is useless.  I  do  not think    that    negative    words    are    required     to exclude  proceedings  by  persons  other  than   sea-fishery officers.   For  instance,  if  an  Act  provided  that  the Attorney-General was to sue for a penalty, no one else could sue for it; it is obvious that if everyone could sue for the penalty  the Attorney-General could sue for it, so  that  on that  view  of the statute the clause enabling  him  to  sue would be unnecessary and useless." 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  accordance 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  J.-In  this appeal which has been filed  on  a certificate  of  fitness  under  Art.  134  (1)(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. 200  (in  default, simple imprisonment 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 759 entered  into an agreement with the railway, and  had  taken out a vendor’s licence No. 54 of 1951 datedJanuary      9, 1952, by which he was permitted to sell or exhibit     for sale, sweetmeats, betel, bidi, cigarettes, tea,  cake, bread and biscuits and parched gram at      Howrah   goods    shed between January 6, 1951 and December 31, 1953. On December 2,1953, the Health Officer, a Sanitary Inspector and a peon of the Howrah Municipality   visited          the restaurant, whore the servant of the    appellant,       one Shyamlal Missir, was in charge. Onthe counter, there was  a jar containing " butter ". This ,butter " was being sold  to customers. TheSanitary 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

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was sent for analysis of the sample, to the Public  Analyst, West Bengal. On the report of the Analystthat the sample did not contain any butter fat at alland   contained   an excess of water, the Health Officeraccorded    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, because, in his opinion, the samples  were taken not from the jar from which butter was being sold  to the other customers but from another  jar. The High  Court, however, set aside the order, and the case was retried. It resulted in theconviction    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          obtaineda 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 760 thus he was not responsible for the sale in question. It was contended  that the sale might have been made by  Missir  on his own account.  This contention is    without   substance. That  there  was  a  sale  of  the  seized  article  at  the restaurant  of the appellant goes without saying.   Sections 406 and 407 of the Calcutta        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 facit  per alium  facit per se applies.  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 embraced a consideration  of certain  sections  of the Calcutta 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.I.R. 1952 Pun. 140.             761 was  made  is s. 537 of the Calcutta Municipal  Act  in  its application  to  Howrah  Municipality. It  reads  thus:

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"The Commissioners may- (a) institute, defend or withdraw from legal     proceedings under  the Calcutta Municipal Act, 1923, as in force in  the Municipality  of  Howrah or under 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 exereise 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-delegater  any of the delegated powers  to  the Vice-Chairman  or  to any municipal officer. 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 97 762 Municipal Act in its application to the Howrah Municipality. I have thus only s. 12 of the Calcutta  Municipal Act in its application  to the Howrah Municipality to consider, and  as summarised above, it     permits  delegation of powers  from the  Commissioner to the Chairman and from the  Chairman  to the  ViceChairman 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 against the appellant, has arisen. A number of notifications must now be set out, because it is contended  that  the later notifications rescind  or  modify those issued earlier:  "Howrah Municipality order. I  hereby  delegate to the Vice-Chairman, Dr.  Beni  Chandra Dutta,  all my powers, duties and functions as  Chairman  in respect of the following departments which are placed  under

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his charge:- 2. Health       Department. The 6th February, 1948.           S. K. Mukherji,Chairman.                             11.                     Howrah Municipality.                            Order. 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.                         763 The 20th December, 1949. S. K. Mukherjee, Chairman.                     III Howrah Municipality. Order, Till the election of Executives by the New Board I  delegate all my powers and functions except those that are  delegated to    the   Vice-Chairman   to   respective   officers    of departments......... The 7th April, 1951.               S. K. Mukherji,                          Chairman.                             IV.                     Howrah Municipality.                            Order. I  hereby  delegate to the Vice- Chairman,  Sri  Sankar  Lal Mukherji, all my powers, duties and functions as Chairman in respect of the following departments which are placed  under his charge.  ............................................................ 2. Health Department.  ............................................................ The 4th July, 1951.                 K. C. Dutta,                         Chairman.  " It  is  admitted  in  this case that  the  election  of  the Executives by the New Board took place between April 7, 1951 and July 4, 1951.                              V.                     Howrah Municipality.                            Order. I hereby revoke my order dated the 4th July, 1951, so far as it  relates to Health Department which shall  henceforth  be direct under my charge until further orders.  This will take effect from 15th December, 1952. 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 764   gives it perpetual succession and a power to act  in  many ways.   Among,  its multifarious functions  is  an  inherent power  to  sue  or be sued by its corporate  name,  but  the statutes creating such corporations     aggregate    provide expressly  for such power.  In the absence of  provision  to the contrary, the body   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

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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 do. This distinction was made in Abbott’s Corporations,  Vol.   11, p. 1456 etc., and is to  be  found reflected also in the Act under consideration. An officer of the municipality must himself perform his 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  whom  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 the Paper Book and involve one hundred                             765 and   thirty-seven  special  delegations.   If   the   whole book were to be before us, these special delegations    will show an enormous number of specially delegate,.      powers.      These  functions  cannot be performed by  any  but  the officers concerned and are not taken away every   time   the Chairman passes an order investing by a general  order   his functions, in the Vice-Chairman, or     withdraws them  from him. Notification No. 11 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.  111) led to the cancellation of the Order of  December 20, 1949 (No. 11), or at least imposed a     time limit till the election of the new Board. I am     afraid this is not a correct interpretation of the      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 of a 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. 11) was a special  Order, while the Order of  April 7, 1951, was a general one. The first Order (No. 1 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 766

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power to do some specific act or acts is quite another.  The general  order in favour of the Vice-Chairman (No. 1)  would not cut down the special orders of the  Chairman.        The general  order cannot be read as  special,because  generalia verba sunt generaliter intelligenda, and generalities  never derogate  from specialities.  It only granted the  residuary powers  which  were not covered by the  special  delegations from  time 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. 1), all functions, duties and  powers including  those  specifically mentioned in the  order  book came  to be centred in the Vice-Chairman.  It was  he  alone who could inspect and examine house drains (s. 275), approve the  site and position of the cesspools (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, 195 1, on  the Order  of December 20, 1949, is, as is claimed.  It  may  be contented  that if that is the effect of the Order,  we  can declare  it to be so ; but one reaches this result  only  if one  disregards the distinction between special and  general orders, and there is no principle of interpretation on which it can be rested. 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      767 the Chairman by his Order of April 7, 1951 (No. 111).   That Order stated that powers and functions  except         those delegated to the Vice-Chairman were to be    exercised  till the election of the Executives by the new    Board. But  the time-limit was imposed on     powers    delegated  by   that Order. This is clear from the language  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. 11),  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 time limit.  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 by  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

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implication.  In my opinion, the special delegation made  by the  Order  of  ]December  20,  1949  (No.   11),   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 allowed.      768