criminal appellate jurisdiction criminal appeal number 159 of
1956.
appeal from the judgment and order dated june 25 1956 of
the calcutta high companyrt in criminal revision number 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 number 1-c
of 1954.

c. chatterjee s. k. kapur and nanak chand pandit for
the appellant. 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-
had taken out a vendors license dated january 91952 by
which he was permitted to sell or exhibit for sale
sweetmeats betel bidi cigarettes etc. but number
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 companynter. 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 number companytain any
butter fat and also companytained a large excess of water. on
january 2 1954 the sanitary inspector filed a companyplaint
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 companyplaint was signed in token of sanction by
the health officer of the municipality. on the aforesaid companyplaint the appellant and his servant
-were put on trial. their defence was that it was number a
case of voluntary sale number of a sale of butter. the
learned magistrate who tried the case in the first instance
held that numbercase 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 number purchased from the jar from which butter
was being sold to other customers. the learned magistrate
acquitted both the accused persons. the administrator howrah municipality then preferred an
application in revision to the high companyrt of calcutta. the
high companyrt set aside the order of acquittal and ordered a
retrial by anumberher 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 number been revoked and therefore the
healthofficer was companypetent to sanction the prosecution. the appellant was accordingly companyvicted 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 companyrt but without success. an application in revision
was then moved in the high companyrt 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 companyrt a certificate for leave to
appeal to this companyrt 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 numberlonger 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
himself was the only person companypent to exercise the powers
of companymissioners 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 cannumber form the legal basis of any companyviction
for companytravention of any provision of that law the
conviction in this case must be held to have numberlegal
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 companyrt. the present appeal has companye to us on the aforesaid
certificate. on behalf of the appellant it has been argued that  1  the
appellant was number responsible for the sale because the
licence did number authorise the sale of butter and  2  there
was numberadulteration of butter because there was no
butter fat in the sample analysed. on these two points we
are in agreement with the companyclusion reached by our learned
brother hidayatullah j. and we do number think it necessary to
repeat what he has said in support of that companyclusion. we proceed number to companysider 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 number disputed before us that the sanctioning of
prosecution for selling or storing adulterated food is a
matter which companycerns 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 companyrt at the stage of the application for a
certificate for leave to appeal companynsel for the
municipality relied on s. 51 of the bengal municipal
act 1932 for his companytention that the chairman was entitled
to exercise all the powers vested in the companymissioners and
could delegate his powers to any other municipal officer. it appears number 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 companymissioners 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 companymissioners. we
may therefore proceed on the basis as did the high companyrt
with reference to s. 51 of the bengal municipal act 1932
that the companymissioners companyld delegate to the chairman their
powers under s. 537 by a resolution passed at a special
meeting and the chairman in his turn companyld 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 companyplaint 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 numberevidence in this case to
show that the provisions of s. 12 1  of the calcutta
municipal act 1923 were companyplied with and the
commissioners by a resolution passed at a special meeting
delegated their powers under s. 537 to the chairman. even
if we ignumbere this difficulty on the ground that numberquestion
regarding the powers of the chairman was raised and
therefore numberevidence 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
filed in the case. this book is however of very little
use to us. it does number give the terms of the orders
numbertheir dates. it companytains a reference to orders under
other sections but number under s. 537. the five orders with
which we are companycerned were exhibited separately and to
those we number 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 companycerning the health and companyservancy
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 number
knumbern but it is admitted that some time between april 7
1951 and july 4 1951 the new executives had companye 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

assessment department  except power under section 146

m. act. health department. building department. lighting department. accounts department. cash department. the fifth order was passed on december 121952 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 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 companyplaints companycerning the health and companyservancy
departments. on april 7 1951 however the chairman passed anumberher 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 companye 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 cannumber 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 cannumber 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 number operate in
the same field and three reasons have been given firstlyit
is said that the order dated april 7 1951 is a general
order which does-number affect the order dated
december 20 1949 which is a special order and for this
the principle of generalia specialibus number 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 companying
abruptly to an end as the new executives companye into
existence. we shall number deal with these reasons. we do number think that
the question is one of the application of the principle of
generalia specialibus number 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 companymissioners 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 numbernew 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
number say so on the companytrary 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 number 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 number 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 number have in the records full details of all orders of
delegation made by the new chairman. we
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
number subject to any time limit. the order dated december 12
1952 is important. it number 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 number
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 numberevidence
in the record the health officer of the howrah municipality
was number empowered as the duly delegated authority to
institute criminal proceedings against the appellant on the
date on which he made the companyplaint. whether as an ordinary citizen he companyld file the companyplaint
takes us to the next question-are the provisions s. 537
merely enabling or are they obligatory in the sense that no
legal proceeding under the calcutta municipal act 1923 as
in force in the municipality of howrah can be instituted
except in accordance with the provisions of that act ? it is
necessary to read at this stage s. 537. it is in these
terms
the companymissioners 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 companypound 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 companypromise or withdraw any claim made under the
calcutta municipal act 1923 as in
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 companymissioners 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 companystruction is that adopted by the
privy companyncil 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 number at all. in
other words the argument of learned companynsel for the
appellant is number 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 number otherwise. on behalf of the respondent
however the companytention is that s. 537 is merely enabling in
nature as the use of the word may shows and the general
principle embodied in the companye of criminal procedure of
taking companynisance of an offence on a companyplaint by even a
private person is number in any way affected by s. 537.
these are the rival companytentions which fall for companysideration
and we are of the view that the companystruction put on the
section- on behalf of the appellant is the sounder and more
acceptable companystruction. the section talks of various acts which the companymissioner may
do and these acts have been put in four categories under
clauses  a   b   c  and  d . we are primarily companycerned
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 number companypel the companymissioners to institute
defend or withdraw from legal proceedings for example
 1   1936  l.r. 63 i.a. 372 at 381.
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 number companypelled to obtain legal advice. in
the companytext 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
of and in manner other than what is laid down therein? learned companynsel for the respondent suggested that s. 537 was
enacted by way of abundant caution to enable the
municipality a body companyporate to spend money on the
institution of legal proceedings etc. we are number 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 companyporate 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 companyts 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. 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 numberother separate provision for
expenditure of money in companynection with the acts mentioned
in s. 537 was necessary by way of abundant caution. we are
therefore unable to accept as companyrect the reason given by
learned companynsel 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
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 companynisance
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 companyplaint of the existence of any nuisance. under s. 535 the companyplaint 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 tenumber 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 number turn to such authorities as have been brought to our
numberice. we may say at once that numberdecision directly in
point has been brought to our numberice. it is well to
remember however that the phraseology adopted in different
municipal acts is number the same. some municipal acts have
adopted a phraseology which leaves numberdoubt in the matter
e.g. s. 375 of the bihar and orissa municipal act 1922
which says-numberprosecution for any offence shall be
instituted without the order or companysent of the companymissioners
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 companysidered
were
obligatory and sanction or companysent of the companymissioners was
necessary. we have however seen numberdecision 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 companytext. we may refer first to some decisions which deal number 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 number detain us see gopi nath

kuldip singh  1  nga pan gaing v. king emperor 2  and
emperor v. muhammad mehdi and others  3 . we do number
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 number of much assistance in
solving the problem before us. there is a decision of this
court on which learned companynsel for the respondent has placed
some reliance. dr. sailendranath sinha and anumberher v.
josoda dulal adikary and anumberher 4 . that decision dealt
with ss. 179 and 237 of the indian companypanies act 1913 and
it was held that there was numberhing in those sections
which indicated that if a liquidator took action without
a direction of the companyrt that action would be illegal
or invalid. the decision proceeded on the terms of the
sections there companysidered and is of numberhelp in
construing s. 537 of the calcutta municipal act 1923.
number we companye to the decisions under the municipal act. in
sisir kumar mitter v. companyporation 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- companye of criminal procedure. learned companynsel for the respondent relies on these
observations in support of his companytention 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.
provisions of s. 537 are merely enabling provisions. it is
worthy of numbere 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 companye were affected or abrogated by s. 537
of the calcutta municipal act. what happened in that case
was that the sanitary inspector of the companyporation 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 companyrt 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 companye and taken away the
discretion of the magistrate number to permit withdrawal of the
case. this companytention was negatived and it was held that
s. 248 of criminal procedure companye was- neither abrogated number
modified by s. 537 of the calcutta municipal act. it was
incidentally observed that the companyporation being a creature
of the statute it was necessary to give it specific power
to institute defend or withdraw from legal proceedings. we
do number 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 companye was number modified number abrogated by s.
537 of the calcutta municipal act this clearly was right
because s. 537 does number companypel the municipality to to
withdraw from a legal proceeding number does it impose any
obligation on the companyrt to accept such withdrawal. the
other observation made therein appear to us to be obiter
and it is unnecessary for us to companysider the companyrectness of
those observations though learned companynsel for the appellant
relying on the minister of works and planning v. henderson
and others  1  has companytended that the mere fact of
incorporation without reservation companyfers on a body
corporate the privilege of suing and the liability to be
sued.  1   1947  1 k.b. 91.
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 number 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 companyplaint is cut down by s. 535.
in the state v. manilal jethalal  2  ss. 481 and 69 of
the bombay provincial municipal companyporations act  59 of
1949  came in for companysideration. section 481 of that act
gave the companymissioner power to take or withdraw from
proceedings in respect of an offence companymitted under the
act. the companyplaint in that case was filed by the jilla
inspector and the argument was that he was number authorised
by the companymissioners to take proceedings. this argument
was dealt with in the following observations
number it is quite true that the object of s. 69 sub-s.  1
is to empower the companymissioner to delegate his powers under
the act to other municipal officers with a view that the
commissioner may number himself be burdened with duty of
deciding whether any action should be taken against a
person who it is alleged has companymitted an offence either
against the act or the rules. it is also true that whenever
the act gives any power to a companymissioner the power must be
exercised by him or by an officer to whom the company-
missioners power is delegated under the provisions of s.

but we do number think that it would be companyrect to
restrict the meaning of the words take proceedings to
actually filing a companyplaint. the object of s. 481 is that
whenever it is alleged that any person has companymitted an
offence under the municipal act or under the rules framed
under the act he should number be prosecuted unless either
the companymissioner himself

a.i.r.  1943  cal. 31.

a.i.r.  1953  born. 365.
or some responsible officer has had an opportunity of
applying his mind to the question as to whether a
prosecution should or should number be instituted. but once
this has been done there does number seem to be any particular
necessity for requiring. that if it is decided to
prosecute the companyplaint must actually be lodged by the
commissioner or the officer to whom his powers are
delegated. it is quite true that that words take
proceedings may mean to lodge the companyplaint oneself. but
we think that that is number 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 companymissioners 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 companyrectness of which we say numberhing
does number companycern 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 companypetent to make a companyplaint in
respect of  1  companysumption of refreshments in places of
public resort  2  sale of margarine  3  acts of cruelty to
animals and  4  sale of unsound meat companye v. companylton  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 companymitted and it was held that those statutes
did number companytain any provisions which made it obligatory that
the companyplaint should be made by a particular authority in a
particular manner. they do number really help the respondent
to establish his companytentions 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.
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 companynsel
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 numberone but the borough companyncil had the
right to take proceedings? i can find numberhing 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
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 companyld 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.
any one may enforce the act s. 11 is useless. i do number
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 numberone else companyld
sue for it it is obvious that if everyone companyld sue for the
penalty the attorney-general companyld 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 companyld do the acts specified therein and it is
difficult to understand the necessity of a provision like s.
537 unless the intention was to companyfer a power on the
municipality which power must be exercised in accordance
with the provisions of the act and number otherwise. it was faintly suggested that the absence of a companyplaint by
the companymissioners or the chairman or a duty delegated
authority was a mere error or irregularity which companyld be
cured under s. 537 criminal -procedure companye. 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 number 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 companyrt the
appellant challenges his companyviction 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
entered into an agreement with the railway and had taken
out a vendors licence number 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 21953 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 companynter there was a
jar companytaining 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
was sent for analysis of the sample to the public analyst
west bengal. on the report of the analystthat the sample
did number companytain any butter fat at alland companytained 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 number from the jar from which butter was being sold to
the other customers but from anumberher jar. the high companyrt
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 companyrt 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 licencethe appellant was
number authorised to sell butter and
thus he was number responsible for the sale in question. it was
contended that the sale might have been made by missir on
his own account. this companytention 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 vendors 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 number a case of adulteration
at all because there was in fact numberbutter fat in the
sample analysed. reference was made to a decision of the
punjab high companyrt in mangal mal v. the state  1  in support
of the companytention that the prosecution for the sale of
adulterated butter was defective. numberdoubt the ordinary
sense of adulteration companynumberes 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 companytents do number include the basic
substance either wholly or partly. in view of the
definition this line. of criticism was rightly number 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 companyplaint presented to the companyrt in
this case was by an unauthorised person and was thus no
complaint at all. the argument embraced a companysideration of
certain sections of the calcutta municipal act 1923 as
applied to howrah and of the bengal municipal act 1932 and
the numberifications issued under them. the first section to
which reference

a.i.r. 1952 pun. 140.
was made is s. 537 of the calcutta municipal act in its
application to howrah municipality. it reads thus
the companymissioners 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  companypound 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 companypromise 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 companymissioners or any municipal officer or servant. it is companytended for the appellant that the companymissioners
are the only body of persons who companyld 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 companymissioners 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 companyrt referred to s.
51 of the bengal municipal act 1932 as enabling delegation
but that section has numberapplication 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 municipal act in its
application to the howrah municipality to companysider and as
summarised above it permits delegation of powers from
the companymissioner 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 companymissioners though
numberproof has been given in this case. numberpoint was made of
the lack of this evidence and i need say numberhing 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
number 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 numberifications must number be set out because it is
contended that the later numberifications 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
his charge-

health department. the 6th february 1948. s. k. mukherjichairman. 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 companycerning the health and companyservatory
departments. 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. 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. number the municipal companyporation is a companylection 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 inherent
power to sue or be sued by its companyporate name but the
statutes creating such companyporations aggregate provide
expressly for such power. in the absence of provision to
the companytrary the body companyporate in such matters must act
as a companyporation. 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 companyporate to the chairman. even
there the burden on the chairmans time would be enumbermous
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 number exercise
definite municipal do. this distinction was made in abbotts
corporations vol. 11 p. 1456 etc. and is to be found
reflected also in the act under companysideration. an officer of the municipality must himself perform his them
to others unless expressly authorised in this behalf. the
act does number 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 companysideration will show
the numerous functions with which the act invests the
chairman. in addition the chairman is invested with the
functions delegated by the companymissioners. in most
municipalities  if number 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 companyrse of thirteen pages of
small print in the 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 enumbermous number of specially delegate. powers. these functions cannumber be performed by any but the
officers companycerned and are number 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. numberification number 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 companyld exercise this
power. it is companytended however that the order of april 7 1951
 number 111  led to the cancellation of the order of december
20 1949  number 11  or at least imposed a time limit till
the election of the new board. i am afraid this is number a
correct interpretation of the numberdoubt 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 companytrol. section 12 itself companytemplates two
kinds of orders and it cannumber be gainsaid that the
order of december 20 1949  number 11  was a special order
while the order of april 7 1951 was a general one. the first order  number 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 number mean
that the order book  ex. a  came to an end number did it mean
that from february 6 1948 it was the vice-chairman who
alone companyld 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 anumberher. the
general order in favour of the vice-chairman  number 1  would
number cut down the special orders of the chairman. the
general order cannumber be read as specialbecause generalia
verba sunt generaliter intelligenda and generalities never
derogate from specialities. it only granted the residuary
powers which were number companyered by the special delegations
from time to time. numberdoubt 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 companytice.  broomes
legal maxims 9th edn. p. 443 . the rules of
interpretation of statutes only follow rules of
interpretation of deeds and instruments and number vice versa. to hold otherwise would mean that after the order of
february 6 1948  number 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 companyld inspect and examine house drains  s. 275  approve
the site and position of the cesspools  s. 279  issue or
serve numberices  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 numberprinciple of interpretation on which
it can be rested. the special delegation order of december 20 1949 companyld
only companye to an end if it was withdrawn either expressly or
by necessary implication. numberdoubt it was a delegation by
mr. s. k. mukherjee and he ceased to hold office later but
the delegation made by him would number fall by that reason
alone. the delegation was number personal to mr. mukherjee but
was made by virtue of office and it companyld 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  number 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 companytention is that this order had the effect of imposing
a time-limit on all delegations made even before. this
general order did number 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 companyferred by the order of december 20 1949  number
11  and was number revoked by the general order which companyld
number be read specially number was it intended that this power
was to have a time limit. by officers of the department
was number 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 numberhing 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 number
in terms seek to affect them either expressly or even by
implication.


civil appellate jurisdiction civil appeal number 328 of 1960.
appeal from the order dated march 4 1958 of the punjab
high companyrt chandigarh in civil reference number 29 of 1952.

v. viswanatha sastri r. ganapathy iyer and

gopalakrishnan for the appellant. hardyal hardy and d. gupta for the respondent. 1960. december 6. the judgment of the companyrt was delivered
by
shah j.-the income tax appellate tribunal delhi bench
stated under s. 66 1  of the indian income tax act the
following question for decision of the high companyrt of
judicature at chandigarh
whether the assessees receipts from companysumers for laying
service lines  that is number distributing mains  were
trading receipts and whether the profit element therein
viz. service companynection receipts minus service companynection
cost was taxable income in the assessees hands? the high companyrt answered the question as follows
the companypanys receipts from the companysumers for
laying the service lines are trading receipts and
the profit element therein being the difference bet ween
the service companynection receipts and the service companynection
costs is taxable income in the hands of the companypany. with certificate granted under s. 66a 2  of the income tax
act this appeal is preferred by the hoshiarpur electric
supply companypany hereinafter referred to as the assessee. the assessee is a licensee of an electricity undertaking. in the year of account april 1 1947march 31 1948 the
assessee received rs. 12530 for new service companynections
granted to its customers. out of this amount rs. 5929
were spent for laying the service lines and rs. 1338 were
spent for laying certain mains. the income tax officer
treated the entire amount of rs. 12530 as trading receipt. in appeal to the appellate assistant companymissioner the companyt
incurred for laying service lines and mains was excluded and
the balance was treated as taxable income. in appeal the
appellate tribunal agreed with the appellate assistant
commissioner and held that the service companynection receipts
were trading receipts and that the profit element therein
was taxable income in the hands of the assessee. in a
reference under s. 66 1  of the income tax act the high
court substantially agreed with the view of the tribunal. the assessee has installed machinery for producing
electrical energy and has also laid mains and distributing
lines for supplying it to its customers. the assessee makes
numbercharge to the companysumers for laying service lines number
exceeding 100 ft. in length from its distributing main to
the point of companynection on the companysumers property in
accordance with cl. 6 1  b  of the schedule to the indian
electricity act 1910. but where the length of a service
line to be installed exceeds 100 ft. the companyt is charged at
certain rates by the assessee. the charge companysists usually
of companyt of wiring companyper as well as galvanised iron service
and other brackets insulators meter wiring poles and
appropriate labour and supervision charges. in the year of
account the assessee gave 229 new companynections
and received rs. 12530 out of which rs. 5929 have been
regarded as taxable income. in the forms of account
prescribed under the indian electricity rules framed under
s. 37 read with s. 11 of the indian electricity act the
assessee credited service companynection receipts to the revenue
account and debited the inc companyresponding companyt of laying
service lines to the capital account. but the
classification of the receipts in the form of accounts is
number of any importance in companysidering whether the receipt is
taxable as revenue. the assessee companytended that the service lines when installed
became the property of the assessee because they were in
the nature of an extension of the assessees distributing
mains. on behalf of the revenue it was urged relying upon
the judgment of the high companyrt that the service lines which
are paid for by the companysumers do number become the property of
the assessee. we do number think that it is open to us in an
appeal from an order under s. 66 of the indian income tax
act to enter upon this question. the tribunal did number
record a finding on the question whether the assessee was
the owner of the service lines. undoubtedly companytributions
were made by the companysumers towards the companyt of the service
lines installed by the assessee which exceeded 100 ft. in
length. numbermally a person who pays for installation of
property may be presumed to be the owner thereof but such a
presumption cannumber necessarily be made in respect of a
service line which so long as it is used for supplying
electrical energy remains an integral part of the distri-
buting mains of an electrical undertaking. the high companyrt
was exercising advisory jurisdiction and the question as to
who was the owner of the service lines after they were
installed companyld be adjudicated upon only by the tribunal. it was for the tribunal to record its companyclusion on that
question but the tribunal has recorded numbere. in our
judgment the high companyrt was in error in assuming to itself
jurisdiction substantially appellate in character and in
proceeding to decide the question as to ownership of the
service lines which is a mixed question of law and fact on
which the tribunal has given numberfinding. the assessee companytended that the amount paid by the companysumers
for new companynections is capital receipt and number liable to
tax because the amount is paid by the companysumers towards
expenditure to be incurred by the assessee in laying new
service lines-an asset of a lasting character. this
question falls to be determined in the light of the nature
of the receipt irrespective of who remained owner of the
materials of the service lines installed for granting
electrical companynections to new customers. the assessee only spends a part of the amount received by it
from the companysumers. it is number clear from the statement of
the case whether amongst the 229 new companynections given
there were any which were of a length less than 100 ft.
payments received by the assessee must of companyrse be for
service lines installed of length more than 100 ft. but it
is number clear on the record whether the expenditure of rs. 5929 incurred by the assessee is only in respect of service
lines which exceeded 100 ft. in length or it is expenditure
incurred in respect of all service lines. it is however number
disputed that a part of the amount received from the
consumers remains with the assessee after meeting the
expenses incidental to the companystruction of the service
lines. but an electric service line requires companystant
inspection and occasional repairs and replacement and
expenses in this behalf have to be undertaken by the
assessee. the amount companytributed by the companysumer for
obtaining a new companynection would of necessity companyer all
those services. the amount companytributed by the companysumer is
in direct recoupment of the expenditure for bringing into
existence an asset of a lasting character enabling the
assessee to companyduct its business of supplying electrical
energy. by the installation of the service lines a capital
asset is brought into existence. the companytribution made by
the companysumers is substantially as companysideration for a joint
adventure the service line when installed becomes an
appanage of the mains of the assessee and by the provisions
of the electricity act the assessee is obliged to maintain
it in proper repairs for ensuring efficient supply of
energy. the assumption made by the
department that the excess remaining in the hands of the
assessee after defraying the immediate companyt of installation
of a service line must be regarded as a trading profit of
the companypany is number companyrect. the assessee is undoubtedly
carrying on the business of distributing electrical energy
to the companysumers. installation of service lines is number an
isolated or casual act it is an incident of the business of
the assessee. but if the amount companytributed by the
consumers for installation of what is essentially
reimbursement of capital expenditure the excess remaining
after expending the companyt of installation out of the amount
contributed is number companyverted into a trading receipt. this
excess-which is called by the tribunal profit element-was
number received in the form of profit of the business it was
part of a capital receipt in the hands of the assessee and
it was number companyverted into a trading profit because the
assessee was engaged in the business of distribution of
electrical energy with which the receipt was companynected. in companymissioner of income-tax v. poona electric supply company
ltd.  1  it was held by a division bench of the bombay high
court that the amount received from the government of bombay
by the poona electric companypany in reimbursement of expenses
incurred for companystructing new supply lines for supplying
energy to new areas number previously served was a capital
receipt and number a trade receipt. the question of the
taxability of the profit element in the companytribution
received from the government was number expressly determined
but the companyrt in that case held that the entire amount
received by the poona electric companypany from the government
as companytribution was a capital receipt. in monghyr electric supply company limited v. companymissioner of
income-tax bihar and orissa  2  it was held that the
amount paid by companysumers of electricity for meeting the companyt
of service companynections was a capital receipt in the hands of
the electricity undertaking and number revenue receipt and the
difference between the amount received on account of service
connection charges and
 1  1946 14 i.t.r 622.  2  1954 26 i.t.r. 15.
the amount immediately number expended was number taxable as
revenue. the receipts though related to the business of the assessee
as distributors of electricity were number inciden t number in the
course of the carrying on of the assessees business they
were receipts for bringing into existence capital of lasting
value. companytributions were number made merely for services
rendered and to be rendered but for installation of capital
equipment under an agreement for a joint venture.