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PETITIONER: K. M. KANAVI

       Vs.

RESPONDENT: THE STATE OF MYSORE

DATE OF JUDGMENT: 18/04/1968

BENCH: BHARGAVA, VISHISHTHA BENCH: BHARGAVA, VISHISHTHA SIKRI, S.M. SHELAT, J.M.

CITATION:  1968 AIR 1339            1968 SCR  (3) 821  CITATOR INFO :  R          1970 SC 816  (2,4)  D          1972 SC 928  (6)  D          1982 SC1407  (17)

ACT: Bombay Municipal Boroughs Act, (18 of 1925)--Section 23A(2), (3)  and s. 200(1)--Prosecution and conviction  of  retiring President for disobeying orders of State Government to  hand over charge--Procedure prescribed  by s. 200(1) mandatory.

HEADNOTE: Section  23A(3) of the Bombay Municipal Boroughs Act,  1925, makes  it  an  offence if a retiring  President  to  whom  a direction  has been issued by the State Government  to  hand over  charge  of  his  office  does  not  comply  with  such direction  and  under  s. 200(1) the  authorities  who  "may direct"’  any  prosecution  for  punishment  of  any  person offending against the provisions of the Act are the Standing Committee and the Chief Officer. The appellant who was removed from the office of  President- ship  refused  to  obey the order of  the  State  Government directing  him  to  hand over charge to  the  newly  elected President.   He was prosecuted and convicted for an  offence under  s.  23A(3),  not on the  direction  of  the  Standing Committee or the Chief Officer as required by s. 200(1)  but on a complaint filed at the instance of the State Government by the newly elected President.  The High Court,  dismissing revision  application against the order of conviction,  took the  view that s. 200(1) was only an enabling provision  and it could not be held to be exhaustive of the authorities who could  make directions for initiation of  such  proceedings. In appeal to this Court, HELD:     The  conviction must be set aside.  The Scheme  of the  Act and the purpose of s. 200(1) make it clear that  if any   proceeding   for   punishment  of   any   person   for contravention  of any of the provisions of the Act is to  be instituted, it must be instituted in the manner laid down in s.  200(1)  of the Act and in that manner  only.   The  word "may"  was  intended to give a discretion  to  the  Standing Committee or the Chief Officer to make directions for taking proceedings  only when they considered it  appropriate  that

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such a direction should be made and to avoid compelling  the Standing  Committee  or  the  Chief  Officer  to  make  such directions in all cases.  If the interpretation of the  High Court were to be accepted it would mean that this  provision was totally unnecessary, because, there would be no need  to confer power on the Standing Committee or the Chief  Officer to make such directions if such directions could be made  or proceedings  instituted  at  the  instance  of  any  private individual. [826 C-D.  F] Baliavdass  Agarwala  v. Shri J. C.  Chakravarty,  [1960]  2 S.C.R.  739  Mangulal  Chunilal  v.  Manilal  Maganlal   and Another,  Criminal Appeal No. 59 of 1965 decided  on  23-11- 1967, followed : The  State  v.  Manilal  Jethalal,  (1953)  55  B.L.R.  377, referred to. Section  200(1),  as  it  stands  at  present,  is   clearly applicable even to a proceeding for punishment of a retiring President  under  s.  23A(3)  even  though  it  might   look anomalous that the prosecution in such 822 circumstances has to be ordered by the Chief Officer who was his subordinate at least during the time when he was working as the President.  The remedy lies in suitable amendment  of s. 200(1).  L828 E]

JUDGMENT: CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 145  of 1965. Appeal  by special leave from the judgment and  order  dated January  15, 1965 of the Mysore High Court in Cr.   Revision Petition 299 of 1964. H.   R. Gokhale and R. B. Datar, for the appellant. R.   Gopalakrishnan, and S.P. Nayar, for the respondent. The Judgment of the Court was delivered by Bhargava, J. The appellant, K. M. Kanavi, was the  President of the Municipal Borough of Gadag Betgeri from 11th January, 1960  to  15th  March,  1963.   He  was  removed  from   the President-ship on 15th March, 1963 by an Order passed by the Government  of  Mysore for neglect of  duty  and  incapacity under  section 21(2) of the Bombay Municipal  Boroughs  Act, 1925  (No.  XVIII of 1925) (hereinafter referred to as  "the Act") which was applicable to Gadag Betgeri, even though  it was situated in the State of Mysore, because it was  earlier a  part of the State of Bombay.  On the next day,  i.e.,  on 16th March, 1963, the Government passed an order superseding the  Borough.   The  appellant  filed  two  writ   petitions challenging these two orders of his removal and supersession of  the Borough.  The order of supersession was  quashed  by the  High Court of Mysore by its judgment dated  10th  April 1963  in Writ Petition No. 492/1963 reported in  The  Presi- dent, Gadag Betgeri Municipal Borough v. State of Mysore(1). Thereafter,  elections  were  held for  the  office  of  the President,  because  the  appellant had  ceased  to  be  the President  under the order of removal.  One  Malashetti  was elected as the President of the Borough on 22nd April, 1963. On  25th April, 1963, the new President asked the  appellant to  hand  over  all  the  papers,  documents  and   property belonging  to  the Municipal Administration.   On  2nd  May, 1963, the appellant sent three keys and two files of  papers by  registered  parcel  to  the  new  President.   The   new President returned it on the ground that those articles  had not been delivered to him in person by the appellant and  be considered  it  unsafe to take delivery  of  the  registered

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parcel.   When sending this parcel, the appellant  wrote  an accompanying letter in which he specifically stated that  he was retaining certain papers as they were needed by him  for his  writ  petition which was pending against his  order  of removal.    Thereafter,  on  20th  June,  1963,  the   State Government  made an order under sub-s. (2) of S. 23A of  the Act  directing the appellant to hand over charge of all  the papers (1)  [1964] 1. M. L.J. 147.                             823 And  properties  which  were in his possession  to  the  new President.  He was also asked to hand over an iron  cupboard with  its  keys  and contents which  were  with  him.   This Government  Order was served on the appellant on  9th  July, 1963.   The  appellant did not comply with  the  Order  and, consequently,  on  21st September, 1963, the  Government  of Mysore   sent  an  order  to  the  Divisional   Commissioner directing him to take necessary action under section 23A  of the Act to prosecute the appellant, since he had defied  the Government Orders and had refused to hand over charge of the papers  and properties of the Borough to, the newly  elected President.   The Divisional Commissioner, in turn, wrote  to the Deputy Commissioner on 5th October, 1963, requesting him to  take  immediate  action under S. 23A(3) of  the  Act  to prosecute  the  appellant.   The  Deputy  Commissioner  then passed  an order authorising the newly elected President  of the Borough to be the formal complainant in respect of  this prosecution which had been ordered by the Government and  to file a criminal complaint against the appellant.  This order was made by the Deputy Commissioner on 24th December,  1963. The  new President, Malashetti, thereupon filed a  complaint against  the  appellant for an offence punishable  under  S. 23A(3)  of  the Act.  The complaint itself is dated  as  3rd January,  1964, but the judgment of the High Court  mentions that  the complaint was actually presented in Court  on  8th January, 1964.  Since these dates are not very material  for decision  of the point on the basis of which this appeal  is being decided, we have not tried to ascertain the exact date of presentation of the complaint in court.  On the basis  of this complaint and the facts mentioned above, the  appellant was  convicted  by  a Magistrate for the  offence  under  S. 23A(3)  of  the Act and was sentenced to pay a fine  of  Rs. 501-,  in  default to suffer simple imprisonment  for  seven days.  The appellant filed a revision against this order  of conviction in the High Court of Mysore and challenged it  on three  grounds.  One ground was that the complaint filed  by the  new President Malashetti was incompetent as it was  not filed in accordance with the procedure laid down in the Act, so that the proceedings taken by the Magistrate were without jurisdiction.  The second point was that, even if it be held that  the complaint was validly filed the provisions  of  S. 23A  of the Act were not attracted, as the  appellant  could not be held to be a retiring President and an order under S. 23A(2)  can only be made against a retiring President.   The third plea was taken that the complaint was barred by  time. The  High Court did not accept any of these three pleas  and dismissed the revision.  The appellant has, therefore,  come up to this Court in appeal by special leave. In this case, the facts, which have been enumerated above, were not disputed even during the trial of the case, and the defence 8Sup CI/68-13 824 of the appellant was confined to the three grounds mentioned above  which  were  urged in the revision  before  the  High

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Court.   To appreciate the first ground mentioned above,  it is  necessary  to reproduce section 23A and  sub-s.  (1)  of section 200 of the Act which are as follows :-               "23A.  (1) On the election of a new  President               or  Vice-President, the retiring President  or               Vice-President   in   whose  place   the   new               President  or Vice-President has been  elected               shall  hand over charge of his office to  such               new  President or Vice-President, as the  case               may be.               (2)   If  the  retiring  President  or   Vice-               President fails or refuses to hand over charge                             of his office as required under sub-se ction (1)               the   State   Government  or   any   authority               empowered  by  the State  Government  in  this               behalf  may, by order in writing,  direct  the               President  or the Vice-President, as the  case               may  be, to forthwith hand overcharge  of  his               office  and  all papers and  property  of  the               municipality,  if  any, in his  possession  as               such  President or Vice-President, to the  new               President or Vice-President.               (3)   If  the  retiring  President  or   Vice-               President to whom a direction has been  issued               under  sub-section  (2) does not  comply  with               such  direction, he shall, on  conviction,  be               punished  with simple imprisonment for a  term               which  may  extend to one month or  with  fine               which may extend to Rs. 500 or with both.               200.  (1) The standing committee and,  subject               to the provisions of sub-section (3) the Chief               Officer  may  direct any prosecution  for  any               public   nuisance  whatever  and   may   order               proceedings  to be taken for the  recovery  of               any  penalties and for the punishment  of  any               persons  offending against the  provisions  of               this  Act or of any rule or by-law  thereunder               and   may   order   the   expenses   of   such               prosecutions  or other proceedings to be  paid               out of the municipal fund :               Provided  that no prosecution for  an  offence               under  this Act or by-laws  framed  thereunder               shall  be instituted except within six  months               next  after the date of the commission of  the               offence  or if such date is not known  or  the               offence is a continuing one within six  months               next after the commission or discovery of such               offence." Sub-s.  (1)  of  S.  23A casts  the  duty  on  the  retiring President  to  hand  over charge of his office  to  the  new President,  when  a_new President has been elected.   It  is obvious that, when handing over 825 charge,  the  retiring  President  must  hand  over  to  his successor  all  the  papers and property  belonging  to  the Borough.   Sub-section (2) of s. 23A envisages a case  where the retiring President fails or refuses to hand over  charge of his office in that manner.  This sub-section empowers the State  Government  or any authority empowered by  the  State Government  in  this  behalf to make  an  order  in  writing directing  the  retiring President to  forthwith  hand  over charge  of  his office and all papers and  property  of  the municipality  to the new President.  Sub-section (3)  of  s. 23A  prescribes  the punishment which can be  awarded  to  a

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retiring President who is convicted for not complying with a direction issued under sub-s. (2).  It is clear that, in the present  case,  the appellant was not liable  to  conviction under  s.  23A(3)  merely because he refused  to  hand  over complete  charge to Malashetti when the latter asked him  to do  so by his letter dated 25th April, 1963 or even  by  the subsequent  reminder dated, 6th May, 1963.  The  failure  of the  appellant to hand over the property, however,  led  the State Government to make a direction under s. 23A(2) on 20th June,  1963 and this Order of the Government was  served  on the  appellant  on  9th  July, 1963.   This  Order  was  not complied with by the appellant according to the case of  the prosecution.  It was because of the failure of the appellant to  comply with this Order that the complaint was  filed  by the  new  President  under s. 23A(3).   The  complaint  was, therefore,  clearly  for  initiating a  proceeding  for  the punishment  of  the appellant who had offended  against  the provision  under sub-s. (2) of s. 23A of the Act.  Under  s. 200(1)  of  the Act, direction for taking  such  proceedings could  be  made either by the standing committee or  by  the Chief  Officer.   Admittedly, Malashetty was not  the  Chief Officer,  nor did he file the complaint under any  direction made  by  the Standing Committee of the Borough.  It  is  on this ground that the plea has been put forward on behalf  of the   appellant   that  the  complaints  against   him   was incompetent  and  no conviction could  be  validly  recorded against him on its basis. The High Court rejected this plea on the ground that, in its opinion,  s. 200(1) of the Act is only an  enabling  section which  gives  the power to the Standing  Committee  and  the Chief  Officer to make directions for taking of  proceedings of this nature and it cannot be held to be exhaustive of the authorities who could make directions for initiation of such proceedings.  The High Court took notice of the fact that in the  Act, there is no provision forbidding cognizance of  an offence  being  taken  except on a complaint  made  under  a direction  of the Standing Committee or the  Chief  Officer, and  interpreted  the  expression "may direct"  used  in  s. 200(1)  of  the Act as indicating that it  was  an  enabling section  permitting  the Standing Committee  and  the  Chief Officer   to   make   necessary   directions.    In    these circumstances, the High Court con-. 826 cluded that this provision could not be held as laying  down that  the Standing Committee and the Chief Officer were  the exclusive authorities who could institute proceedings of the nature  mentioned  in that sub-section.  On this  view,  the High Court further proceeded to hold that a complaint  could have  been  filed  for an offence under the Act  by  even  a private   individual,  so  that  the  complaint   filed   by Malashetty, who was interested in his capacity as the  newly elected President, was competent and valid. We  are unable to accept the interpretation put by the  High Court on S. 200(1) of the Act.  It is true that there is  no specific provision in the Act laying down that cognizance of an  offence  under the Act is not to be taken  except  on  a complaint filed in accordance with a direction made under S. 200 (1 ), but the scheme of the Act and the purpose of  this provision  in S. 200(1) makes it clear that the  legislature intended that such proceedings should only be instituted  in the  manner laid down in that sub-section.  The  word  "may" was used only because the legislature could not have enacted a  mandatory provision requiring the Standing  Committee  or the  Chief  Officer to make a direction for  institution  of proceedings in all cases.  This word was intended to give  a

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discretion to the Standing Committee or the Chief Officer to make  directions  for  taking  proceedings  only  when  they considered  it appropriate that such a direction  should  be made  and to avoid compelling the Standing Committee or  the Chief Officer to make such directions in all cases.  The use of  this  word "may  cannot be  interpreted  as  laying down that, if a proceeding for punishment of any person for  con- travention  of  any of the provisions of the Act  is  to  be instituted,  it  can  be instituted in  any  manner  without complying with the requirements of S. 200(1) of the Act.  If the  interpretation put by the High Court on this  provision is  accepted, it would mean that this provision was  totally unnecessary, because there would be no need to confer  power on the standing committee or the Chief Officer to make  such directions  if such directions could be made or  proceedings instituted  at the instance of any private  individual.   We cannot accept the submission that this provision was made in the Act simply by way of abundant caution.  In fact, if  the provision  had been made with such an object in view,  there is no reason why the power should have been expressed to  be conferred  on the standing committee and the  Chief  Officer only  and  not on the President of  the  Municipality.   We, consequently, hold that, if any proceeding for punishment of any person for contravention of any of the provisions of the Act is to be instituted, it must be instituted in the manner laid down in S. 200(1) of the Act and in that manner ,only. This  view of ours follows the principle laid down  by  this Court in Ballavdas Agarwalay. Shikri J. C.Chakravarty(1). In that case, (1) [1960] 2 S.C.R. 739.                             827 the Court had to interpret a similar provision in S. 537  of the  Calcutta Municipal Act, 1923, under which it  was  laid down that the Commissioner may institute, defend or withdraw from  legal proceedings under that Act or under any rule  or bye-law  made thereunder.  The Court held that,  though  the word  used  was  "may".  this  provision  must  be  read  as requiring  that  the institution or  withdrawal  from  legal proceedings under that Act must be by the Commissioners  and no  other  authority.  The decision was given on  the  basis that  the scheme of the Act made it clear that  section  was intended  to  confer exclusive power on  the  Commissioners. The  interpretation  that  it was a  mere  enabling  section because of the use of the word "may" was rejected and it was hold  that,  if  the  other  interpretation  canvassed   was accepted,  the  section would become clearly  otiose.   That principle  clearly applies to the interpretation of  S.  200 (1) of the Act with which we are concerned. In  Mangulal Chunilal v. Manilal Maganlal and Another(1),  a similar  interpretation was put on section 481 ( 1 ) of  the Bombay  Provincial  Municipal Corporation Act,  1949,  which also  used  the  word  "may"  when  laying  down  that   the Commissioner  may take or withdraw from proceedings  against any person who is charged with any offence against this  Act or......  This Court referred to the decision  in  Ballavdas Agarwala(2) and said :- "Similarly,  here it seems to us that only  the  authorities mentioned in S. 481, read with s. 69, can launch proceedings against  persons charged with offences under the Act or  the rules, regulations or by-laws made under it." In the case before us, reliance was placed on the other side on  a  decision  of the Bombay High Court in  The  State  v. Manilal   Jethalal(3).   That  decision  has  already   been disapproved   by  this  Court  in  the  case   of   Mangulal Chunilal(1), and need not detain us.  On this view, it  must

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be  held that the complaint in the present case,  which  was instituted  by  Malashetty,  the  newly  elected  President, without any order or direction by the standing committee  or by the Chief Officer was not competent as it did not  comply with the requirements of S. 200(1) of the Act. In  this connection, a new point that was raised  was  that, whenever an Order under s. 23A(2) of the Act is made and  is disobeyed,  only the State Government, which made the  Order or the new President to whom the papers and property of  the Borough  have  to be given under the direction made  by  the Government  will  have  the  knowledge  that  the   retiring President has failed to (1)  Criminal Appeal No. 59 of 1965 decided on 23-11-1967. (2)  [1960] 2 S. C. R. 739. (3)  [1953] 55 B. L. R. 377. 828 comply  with  the  direction and  has,  thus,  committed  an offence  punishable,  under  S.  23A(2)  of  the  Act   and, consequently, it should be held that a complaint in  respect of  such  an offence was not intended to be covered  by  the provisions  of S. 200(1) of the Act.  On the language of  s. 200(1) of the Act, however, we must reject this  contention, because it clearly lays down that the Standing Committee and the  Chief  Officer  are  the  authorities  who  can   order proceedings  to  be taken for the punishment of  any  person offending against the provisions of the Act, and the present prosecution  of the appellant is clearly for an  offence  of failing  to  comply with a direction under  s.  23A(2)  made punishable  under s. 23A(3) of the Act.  It may,  no  doubt, appear  anomalous  that the prosecution of even  a  retiring President  in  such circumstances has to be ordered  by  the Chief  Officer, who was his subordinate at least during  the time  when he was working as the President.  It seems to  us that  this anomaly has arisen, because, when s. 23A  in  its present form was introduced in the Act by the Bombay Act  XL of 1950 and for the first time a retiring President was made liable to conviction for failing to comply with a  direction made under sub-section (2) of that section, the  Legislature did  not notice that S. 200(1) of the Act would govern  even such  a proceeding.  The legislature left s. 200(1)  of  the Act untouched.  That provision, as it stands at present,  is clearly applicable even to a proceeding for punishment of  a retiring  President under s. 23A(3) of the Act, so that  the remedy  may now lie in a suitable amendment of S. 200(1)  of the  Act.  The conviction of the appellant on the  basis  of the  complaint  filed by the new  President  Malashetty,  in disregard  of the provisions of s. 200(1) of the Act,  must, therefore, be held to be invalid and set aside. Since the appeal succeeds on this one ground, we do not con- sider  it necessary to discuss the other two grounds  raised by the appellant for challenging his conviction.  The appeal is allowed and the conviction and sentence of the  appellant are set aside R.K.P.S.               Appeal allowed. 829