BALLAVDAS AGARWALA versus SHRIJ.C.CHAKRAVARTY

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

p. 758

The appellant, Ballabhdas Agarwala, is the proprietor of a chain of restaurants, and one such restaurant is at the Howrah Railway Station. He had ~ntered into an agreement with the railway, and had taken out a vendor's licence No. 54 of 1951 dated January 9, 1952, by which he was permitted to sell or exhibit for sale, sweetmeats, betel, bidi, cigarettes, tea, CJ.ke, bread and biscuits and parched gram at Howrah goods shed between January 6, 1951 and December 31, 1953.

pp. 758–759

On December 2, 1953, the Health Officer, a Sanitary Inspector and a peon of the Howrah Municipality visited the restaurant, where the servant of the appellant, one Shyamlal Missir, was in charge. On the counter, there was a jar containing "butter". This- "butter" was being sold to customers. The Sanitary Inspector took three samples of this" butter" from an one-pound slab and put them into three clean. bottles, which were sealed and labelled. Missir was paid Rs. 2 as the price. One bottle was left with Missir as required by the rules. Of the remaining two bottles, one was sent for analysis of the sample, to the Public Analyst, West Bengal. On the report of the Analyst that the sample did not contain any butter fat at all and contained an excess of water, the Health Officer accorded sanction for the prosecution of the appellant and Missir. The complaint was signed by the Sanitary Inspector as well as the Health Officer.

p. 759

The case was tried summarily, and the Magistrate acquitted both the accused, b@cause, in his opinion, the samples were taken not from the jar from which butter was being sold to the other customers but from another jar. The High Court, however, set aside the order, and the case was re-tried. It resulted in the conviction and sentence of the appellant, as stated above. The Sessions Judge (appellate jurisdiction) who was moved by a criminal motion rejected the motion. The appellant then moved the High Court in revision, but Debabrata Mookerjee, J. dismissed it summarily. The appellant applied for and obtained a certificate of fitness under Art. 134 (1) (c) of the Constitution and filed this appeal.

p. 759

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 thus he was not responsible for the sale in questiori. It was contended that the sale might have been made b M" • h" t Th" t t• · y Issir on IS own accoun . IS con en ron 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 f acit per alium f acit per se, a pp lies. The finding is that the sale was for and on behalf of the proprietor, and in view of the clear words of the section, he would be answerable.

pp. 759–760

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 ( 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.

p. 760

The last point is the main argument in this case, on the strength of which the certificate was obtained. The argument is that the complaint presented to the Court in this case was by an unauthorised person and was thus no complaint at all. The argument embrarn;id a consideration of certain sections of the Calcutt!!. Municipal Act, 1923, as applied to Howrah and of the Bengal Municipal Act, 1932, and the notifications issued under them. The first section to which reference was made is s. 537 of the Calcutta Municipal Act in its application to Howrah Municipality. It reads thus:

pp. 760–761

•• "The Comm1ss10ners may-

p. 761

(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;

p. 761

(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;

p. 761

(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

p. 761

(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."

p. 761

It is contended for the appellant that the Commissioners are the only body of persons who could have instituted the complaint. In reply, it is pointed out that under s. 12 of the Calcutta Municipal Act as applied to Howrah, the Commissioners can delegate their functions to a Chairman by a resolution passed . at a special meeting, and . the Chairman can also by a general or special order in writing, re-delegate any of the delegated powers to the Vice-Chairman or to any municipal offi,cer. This power of delegation authorises both the Commissioners as well as the Chairman to delegate or re-delegate, as the case may be, their powers under the Bengal Municipal Act also. The ·.Divisional Bench of the Calcutta High Court referred to s. 51 of the Bengal Municipal Act, 1932 as enabling delegation, but that section has no application, in view of the provisions of s. 542 of the Calcutta Municipal Act, which repeals s. 51 of the Bengal Municipal Act in its application to the Howrah Municipality. I have thus only s. 12 of the Calcutta M . . 1 A t . •t 1. t• t th H h

pp. 761–762

umc1pa c m s app rna ion o e owra Municipality to consider, and as summarised above, it permits delegation of powers from the Commissioner , to the Chairman and from the Chairman to the Vice- Chairman or any other officer of the Municipality. It' was by virtue of this section that the Chairman was presumably delegated the powers of the Commissioners, though no proof has been given in this case. No point was made of the lack of this evidence, and I need say nothing about it. If it had been raised, the prosecution would have led evidence, if available. But without this objection having been raised at an appropriate stage, it is impossible to say now that it is well-founded. It is, however, in the re-delegation of the powers from the Chairman to the other officers of the Municipality that the question, whether such delegation was existing on the date on which the prosecution was initiated agafnst the appellant, has ~risen.

p. 762

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

p. 762

, I. " Howrah Municipality

p. 762

Order.

p. 762

I hereby delegate to the Vice-Chairman, Dr. Beni Chandra Dutta, all my powers, duties aud functions as Chairman in respect of the following departments which are placed under his charge:- 2. Health Department. The 6th February, 1948. S. K. l\fokherji,

p. 762

Chairman.

p. 762

II. Howrah Municipality.

p. 762

Order.

p. 762

I hereby delegate my powers and functions to the Health Officer to order prosecution, to sign prosecution sheets in respect of cases concerning the Health and Conservatory Departments. The 20th December, 1949. S. K. Mukherjee,

pp. 762–763

Chairman.

p. 763

III. Howrah Municipality.

p. 763

Order.

p. 763

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,

p. 763

Chairman.

p. 763

IV. ·Howrah Municipality.

p. 763

Order.

p. 763

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.

p. 763

2. Health Department. The 4th July, 1951. K. C. Dutta,

p. 763

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.

p. 763

v. "Howrah Municipality.

p. 763

Order. ·

p. 763

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,

p. 763

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.

p. 763

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 gives it perpetual succession and a power to act in many ways. Among its multifarious functions is an mherent 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 Municipal Act enables the Chairman to delegate his powers, duties or functions to the Vice-Chairman or to any municipal officer. Such officers are to be distinguished from mere servants who carry out orders but do not exercise definite municipal powers, duties or privileges as the officers do. This distinction was made in Abbott's Corporations, Vol. II, p. 1456 etc., and is to be found reflected also in the Act under consideration.

pp. 763–764

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

pp. 764–765

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 t~e Vice-Chairman, or withdraws them from him. Notification No. II quoted above was a special delegation, and would presumably figure in the order book as an item in the duties of the Health Officer specially delegated to him. After this delegation, it was the Health Officer and Health Officer alone who could exercise this power.

p. 765

It is -contended, however, that the Order of April 7, 1951 (No. III) led to the cancellation of the Order of December 20, 1949 (No. II), or at least imposed a time limit tii} the election of the new Board. I am afraid this is not a correct interpretation of the Order. No doubt, the Chairman stated that he delegated all his powers and functions to the respective officers of the departments till the election of the new Board ; but the officers of the Department are invested with both administrative and special powers. In my opinion, a distinction must be made between delegation of a power to do special acts by a special order, and delegation ofa general character which can only be interpreted generally as applicable to administrative control. Section 12 itself contemplates two kinds of orders, and it cannot be gainsaid that the Order of December 20, 1949 (No. II) was a special Order, while the Order of ~pril 7, 1951, was a general one.

p. 765

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

pp. 765–766

o. wou not cut own t e special orders of the Chairman. The general order cannot be read as special, because generalia verba sunt generaz.iter intelligenda, and generalities never derogate from specialities. It only granted the residuary powers which were not covered by the special delegations from timo to time. No doubt, the word used is "all", but the whole intent and purpose of the delegation must be borne in mind. Qui haeret in litera haeret in cortice. (Broome's Legal Maxims, 9th Edn., · p. 443). The rules of interpretation of statutes only follow rules of interpretation of deeds and instruments and not vice versa.

p. 766

To hold otherwise would mean that after the order of February 6, 1948 (No. I), all functions, duties and powers including those specifically mentioned in the order book came to be centred in the V~ce-Chairman. It was he alone who could inspect and examine house drains (s. 275), approve the site and position of the cess-pools (s. 279), issue or serve notices (s. 503), inspect the service pipes (R. 5 (3)), examine the water pipes (R. 6)-so on and so forth. And yet, this would be the effect of the Order of February 6, 1948, if the effect of the Order of April 7, 1951, on the Order of December 20, I 949, is, as is claimed. It may be contented that if that is the effect of the Order, we can declare it to be so ; but one reaches this result only if one disregards the distinction between special and general orders, and there is no principle of interpretation on which it can be rested.

p. 766

The special delegation order of December 20, 1949, could only come to an end if it was withdrawn either expressly or by necessary . implication. No doubt, it was a delegation by Mr. S. K. Mukherjee, and he ceased to hold office later; but the delegation made by him would not fall by that reason alone. The delegation was not personal to Mr. Mukherjee but was made by virtue of office and it could only cease to be operative if cancelled in the same manner by the same officeholder or his successor. It was, however, argued that it came to an end because of a time-limit imposed by the Chairman by hiS Order of April 7, 1951 (No. III). 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:

pp. 766–767

"Till the election of Executives by the New Board I delegate all my powers and functions ...... to respec-

p. 767

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

p. 767

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.

p. 767

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

p. 767

ORDER OF COURT

p. 767

In view of the judgment of the majority the appeal is allowed.

p. 767

Appeal aUowed.

p. 767