minal Appeal No 159 of 1956
Appeal from the Judgment and Order dated June 25 1956 of the Calcutta High Court in Criminal Revision No 870 of 1956 arising out of the judgment and order dated May 5 1956 of the Sessions Judge Howrah in Criminal Petition 8 of 1956 against the judgment and order dated February 20 1956 of the Magistrate First Class Howrah in Case No 1 C of 1954
N C Chatterjee section K Kapur and Nanak Chand Pandit for the appellant
section C Mazumdar for the respondent
January 15
Judgment of section K Das and A K Sarkar JJ was delivered by section K Das J Hidayatullah J delivered a separate Judgment
I section K DAS J
The appellant Ballavdas Agarwala was the proprietor of a restaurant in the Railway premises at Howrah Railway Station within the Municipality of Howrah and his servant Shyamlal Missir was in charge of that restaurant
Under an agreement with the Railway authorities the appellant 742 had taken out a vendor s license dated January 91952 by which he was permitted to sell or exhibit for sale sweetmeats betel bidi cigarettes etc but not specifically including butter at the Howrah goods shed
On December 2 1953 during the currency of the license the Health Officer of the Howrah Municipality along with his Sanitary Inspector and a peon visited the establishment and found that butter was being sold from glass jars standing on a table between the customers and the vendor
The appellant was then absent and Shyamlal was dealing with the customers
The Sanitary Inspector then took three samples from an one pound slap of butter which was taken out of a glass jar that was fully exposed to public view and which stood open on the selling counter
The samples were taken in clean bottles sealed and labelled on the spot under a seizure list which Shyamlal signed
A sum of Rs 2 was also given to Shyamlal as the price of the sample butter
One of the samples was later sent to the Health Department of the Government of West Bengal for analysis and report
The Public Analyst of West Bengal sent a report stating that the butter in question was grossly adulterated and did not contain any butter fat and also contained a large excess of water
On January 2 1954 the Sanitary Inspector filed a complaint before the magistrate of Howrah asking for the issue of summons to the appellant and his servant Shyamlal for an offence under sections 488406 and 407 of the Calcutta Municipal Act 1923 as extended to the Municipality of Howrah
The complaint was signed in token of sanction by the Health Officer of the Municipality
On the aforesaid complaint the appellant and his servant were put on trial
Their defence was that it was not a case of voluntary sale nor of a sale of butter
The learned Magistrate who tried the case in the first instance held that no case of selling adulterated butter was made out and the reason which the learned Magistrate gave for his finding was that the butter purchased by the Sanitary Inspector was not purchased from the jar from which butter was being sold to other customers
The learned Magistrate acquitted both the accused persons
743 The Administrator Howrah Municipality then preferred an application in revision to the High Court of Calcutta
The High Court set aside the order of acquittal and ordered a retrial by another magistrate
At the retrial several points were taken on behalf of the appellant one of which was that at the relevant time the Health Officer had no power to sanction the prosecution
This time the trying magistrate foundagainst the appellant on all questions of fact and onthe question of sanction he referred to certain orders of the Chairman of the Municipality and held that the power delegated to the Health Officer by one of thoseorders had not been revoked and therefore the HealthOfficer was competent to sanction the prosecution
The appellant was accordingly convicted under sections 406 and 407 read with section 488 of the Calcutta Municipal Act and sentenced to a fine of Rs 200 or in default simple imprisonment for 30 days
The appellant then moved the learned Sessions Judge of Howrah for a reference to the High Court but without success
An application in revision was then moved in the High Court but this was summarily dismissed by a Single Judge
From that summary order of dismissal the appellant asked for and obtained from a Division Bench of the High Court a certificate for leave to appeal to this Court under Article 1341c of the Constitution
While granting th certificate Das Gupta J giving the decision of the Division Bench said On the 4th July 1951 in my opinion the Health Officer of the Municipality had no longer in him the powers to order prosecution in any case regarding the Health Department and that power was at that time vested in the Vice Chairman of the Municipality Shri Sankar Lal Mukherjee as a result of delegation by the Chairman by the order Exhibit D
On the 12th December 1952 the new Chairman Shri K C Datta passed a further order revoking his previous order dated 4th July 1951 so far as it related to the Health Department
The position therefore after 12th December 1952 was that the Chairman of the Howrah Municipality 744 himself was the only person compent to exercise the powers of Commissioners under Section 537 of the Calcutta Municipal Act
If therefore the proceedings unless instituted by the Commissioners in accordance with Section 537 of the Calcutta Municipal Act cannot form the legal basis of any conviction for contravention of any provision of that law the conviction in this case must be held to have no legal basis He expressed the view that the question of the true import and effect of the provisions of section 537 of the Calcutta Municipal Act 1923 was a question of general public importance which should be settled by this Court
The present appeal has come to us on the aforesaid certificate
On behalf of the appellant it has been argued that 1 the appellant was not responsible for the sale because the licence did not authorise the sale of butter and 2 there was no  adulteration  of butter because there was no butter fat in the sample analysed
On these two points we are in agreement with the conclusion reached by our learned brother Hidayatullah J and we do not think it necessary to repeat what he has said in support of that conclusion
We proceed now to consider the question of the power and authority of the Health Officer to sanction the prosecution in the present case
On this question we have reached a conclusion different from that of our learned brother
It is not disputed before us that the sanctioning of prosecution for selling or storing adulterated food is a matter which concerns the Health Department of the Municipality and any delegation of powers in respect of the Health Department will include the power to sanction prosecution for selling adulterated food unless otherwise expressly stated in the order of delegation
In the High Court at the stage of the application for a certificate for leave to appeal counsel for the Municipality relied on section 51 of the Bengal Municipal for his contention that the Chairman was entitled to exercise all the powers vested in the Commissioners and could delegate his powers to any other Municipal Officer
It appears now that the relevant section is section 12 of the Calcutta Municipal Act 1923 as applied to Howrah
Under sub section 1 of section 12 the Commissioners may by a resolution passed at a special meeting delegate to the Chairman any of their powers duties and functions under the Calcutta Municipal Act 1923 as in force in the Municipality of Howrah or under the Bengal Municipal Act 1884 or under any rule or bye law made thereunder
Under sub section 2 the Chairman may by a general or special order in writing redelegate to the Vice Chairman or any Municipal officer any of the powers duties or functions which have been delegated to him by the Commissioners
We may therefore proceed on the basis as did the High Court with reference to section 51 of the Bengal Municipal Act 1932 that the Commissioners could delegate to the Chairman their powers under section 537 by a resolution passed at a special meeting and the Chairman in his turn could redelegate those powers by a general or special order to the Vice Chairman or a Municipal officer
The question before us is did he do so by a valid subsisting order at the relevant time  The relevant date is the date of the complaint which was made on January 2 1954
Therefore we have to see what the position was on that date
The first difficulty in the way of the respondent is that it led no evidence in this case to show that the provisions of section 121 of the Calcutta Municipal Act 1923 were complied with and the Commissioners by a resolution passed at a special meeting delegated their powers under section 537 to the Chairman
Even if we ignore this difficulty on the ground that no question regarding the powers of the Chairman was raised and therefore no evidence was given on the point there is a second and in our opinion insuperable difficulty
An Order Book of the Chairman of the Howrah Municipality containing extracts of orders passed by the Chairman of the Municipality from May 9 1938 to April 22 1957 was 95 746 filed in the case
This book is however of very little use to us
It does not give the terms of the orders northeir dates
It contains a reference to orders under other sections but not under section 537
The five orders with which we are concerned were exhibited separately and to those we now turn
The first order is the one dated February 6 1948 by which the then Chairman of the Howrah Municipality delegated to the Vice Chairman all his powers duties and functions as Chairman in respect of seven departments including the Health Department
This was followed by a second order passed on December 20 1949 which was in the following terms   I hereby delegate my powers and functions to the Health Officer to order prosecution to sign prosecution sheets in respect of cases concerning the Health and Conservancy Departments
 The third order came on April 7 1951 on the eve of the new election
This third order so far as it is relevant for our purpose stated  Till the election of Executives by the New Board I delegate all my powers and functions except those that are delegated to the Vice Chairman to respective officers of departments The exact date on which the new election took place is not known but it is admitted that some time between April 7 1951 and July 4 1951 the New Executives had come into being
On July 4 1951 the New Chairman passed the following order   I hereby delegate to the Vice Chairman Sri Sankar Lal Mukherjee all my powers duties and functions as Chairman in respect of the following departments which are placed under his charge 1
Assessment Department Except power under Section 146 C M Act
Health Department
Building Department
Lighting Department
Accounts Department
Cash Department
The fifth order was passed on December 121952 which said 747 I hereby revoke my order dated the 4th July 1951 so far as it relates to the Health Department which shall henceforth be direct under my chargeuntil further orders
This will take effect from 15th December 1952
 The question before us is what is the effect of the aforesaid five orders  It is clear that by the order dated February 6 1948 the Chairman delegated his powers to the Vice Chairman in respect of the Health Department and by the next order dated December 20 1949 he delegated his powers to the Health Officer in respect of certain particular matters such as ordering prosecution and signing complaints concerning the Health and Conservancy Departments
On April 7 1951 however the Chairman passed another order which imposed a time limit by the expression Till the election of the Executives by the new Board
 The question is if this time limit affected the operation of the second order dated December 20 1949 so that it would come to an end with the election of the new Executives and the position thereafter would be governed by the orders dated July 4 1951 and December 12 1952
Ex Facie it appears to us that the order dated April 7 1951 affects the operation of the second order dated December 20 1949
The two orders placed side by side cannot stand together unless the earlier order is read as modified by the latter order
The earlier order delegated the power of the Chairman in respect of some particular matters mentioned therein to the Health Officer  the latter order states that it delegates all the powers of the Chairman to respective officers of Departments till the election of the new Executives
We have emphasised the word  all  occurring in the latter order as it must include the particular powers referred to in the earlier order
It cannot be that in the same field the two orders will operate one un limited and the other limited by a time factor
It has however been submitted to us that they do not operate in the same field and three reasons have been given firstlyit is said that the order dated April 7 1951 is a general order which does not affect the order dated 748 December 20 1949 which is a special order and for this the principle of generalia specialibus non derogant is invoked secondly it is said that the time limit imposed by the order dated April 7 1951 related to such delegation as is made by that order itself and thirdly it is said that if the time limit imposed by the order dated April 7 1951 applies even to earlier administrative orders then there would be great inconvenience by such orders coming abruptly to an end as the new Executives come into existence
We shall now deal with these reasons
We do not think that the question is one of the application of the principle of generalia specialibus non derogant
Apart from any doubt that may arise as to whether such a principle is applicable to orders by which the Chairman redelegated powers delegated to him by the Commissioners we think that the real answer to the question must be found in the words used in the order
The order dated April 7 1951 makes an exception in favour of the Vice Chairman  it says except those that are delegated to the Vice Chairman
 This obviously has reference to the delegations already made in favour of the Vice Chairman because the order makes no new delegation in favour of the Vice Chairman
It states in terms that the time limit applies to all delegations except those made in favour of the Vice Chairman
Only one exception is made and if the intention was that there would be other exceptions the order would have said so
The order does not say so on the contrary it is expressed in language of the widest amplitude to include within itself all delegations of power except those made in favour of the Vice Chairman
We are not impressed by the argument of administrative inconvenience
Obviously the object of the order of April 7 1951 was to leave the new Chairman free to pass his own orders of delegation and not to fetter the discretion of the new Executives in any way  that is why in the matter of delegation a time limit was imposed
We do not have in the records full details of all orders of delegation made by the new Chairman
We 749 have only two orders dated July 4 1951 and December 12 1952
By order dated July 4 1951 the new Chairman delegated his powers to the Vice Chairman in respect of six departments including the Health Department though the earlier delegation in favour of the Vice Chairman was not subject to any time limit
The order dated December 12 1952 is important
It not merely revoked the order dated 4 1951 but said that the Health Department shall hence forth be direct under my charge until further orders
 If earlier special orders regarding the Health Department were subsisting on December 12 1952 the Chairman would not have used the words which he used on that date
We are therefore of the view that in the absence of a fresh order of delegation of which there is no evidence in the record the Health Officer of the Howrah Municipality was not empowered as the duly delegated authority to institute criminal proceedings against the appellant on the date on which he made the complaint
Whether as an ordinary citizen he could file the complaint takes us to the next question are the provisions section 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 section 537
It is in these terms The Commissioners may ainstitute 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 bcompound 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 cadmit compromise or withdraw any claim made under the Calcutta Municipal Act 1923 as in 750 force in the Municipality of Howrah or under any rule or bye law made thereunder and d obtain such legal advice and assistance as they may from time to time think it necessary or expedient to obtain for any of the purposes referred to in the foregoing clauses of this section or for securing the lawful exercise or discharge of any power or duty vesting in or imposed upon the Commissioners or any Municipal officer or servant
On behalf of the appellant it has been urged before us that the provisions of section 537 are obligatory and the principle invoked in aid of this construction is that adopted by the Privy Council in Nazir Ahmad vs King Emperor 1 viz that where a power is given to do a certain thing in a certain way the thing must be done in that way or not at all
In other words the argument of learned counsel for the appellant is not that the word must  must necessarily be read for the word may  in section 537 but that if a legal proceeding is to be instituted under the Municipal Act in question it must be done in accordance with the provisions of the Act and not otherwise
On behalf of the respondent however the contention is that section 537 is merely enabling in nature as the use of the word may  shows and the general principle embodied in the Code of Criminal Procedure of taking cognisance of an offence on a complaint by even a private person is not in any way affected by section 537
These are the rival contentions which fall for consideration and we are of the view that the construction put on the section on behalf of the appellant is the sounder and more acceptable construction
The section talks of various acts which the Commissioner may do and these acts have been put in four categories under clauses a b c and d
We are primarily concerned with clause a which talks of three things  institute defend or withdraw from legal proceedings under the Calcutta Municipal Act 1923
 It can hardly be doubted that the section does not compel the Commissioners to institute defend or withdraw from legal proceedings for example 1 1936 LR 63 IA 372 at 381
751 clause d says obtain such legal advice and assistance as they may from time to time think it necessary or or expedient to obtain etc
 This obviously shows that the Commissioners are not compelled to obtain legal advice
In the context the use of the word may  is therefore appropriate
But the question still remains if the Commissioners wish to do any of the acts mentioned in section 537 must they do so in accordance with the provisions of the Act  We think that they must otherwise section 537 becomes clearly otiose
What is the necessity of section 537 if the Commissioners can do the acts mentioned therein independent of and in manner other than what is laid down therein Learned counsel for the respondent suggested that section 537 was enacted by way of abundant caution to enable the Municipality a body corporate to spend money on the institution of legal proceedings etc
We are not impressed by this argument
Like all other Municipal Acts the Calcutta Municipal Act 1923 has a section section 5 which constitutes the Municipality into a body corporate and there are detailed provisions about Finance Loans Accounts Taxation etc
Section 84 of the Calcutta Municipal Act 1923 lays down  84 1 The moneys from time to time credited to the Municipality shall be applied in payment of all sums charges and costs necessary for carrying out the purposes of this Act or of which the payment is duly directed or sanctioned by or under any of the provisions of this Act
2Such money shall likewise be applied in payment of all sums payable out of the Municipal Fund under any other enactment for the time being in force
 Obviously therefore no other separate provision for expenditure of money in connection with the acts mentioned in section 537 was necessary by way of abundant caution
We are therefore unable to accept as correct the reason given by learned counsel for the respondent for the insertion of section 537
There are other provisions of the Act which also throw some light on the question
Section 531 752 provides for the appointment of Municipal Magistrates  for the trial of offences under the Act and the rules or bye laws made thereunder
Section 532 provides for cognisance of offence by Municipal Magistrates having jurisdiction in Calcutta section 533 gives power to hear a case in the absence of the accused person section 534 prescribes a period of limitation for prosecution and section 535 says who can make a complaint of the existence of any nuisance
Under section 535 the complaint can be made either by the Municipality or any person who resides or owns property in Calcutta
The above provisions are followed by sections 537 538 and 539
Section 537 gives power to the Municipality to institute legal proceedings etc section 538 deals with suits against the Municipality and section 539 provides the usual indemnity clause
An examination of the aforesaid provisions showsthat the Calcutta Municipal Act 1923 provides inter alia for a machinery for proceedings before Magistrates and other legal proceedings
All these provisions can have one meaning only viz that the machinery provided in the Act must be followed in enforcing these provisions
It would we think be against the tenor and scheme of the Municipal Act to hold that section 537 is merely enabling in nature and that any private person may institute a legal proceeding provisions of the Act
We now turn to such authorities as have been brought to our notice
We may say at once that no decision directly in point has been brought to our notice
It is well to remember however that the phraseology adopted in different Municipal Acts is not the same
Some Municipal Acts have adopted a phraseology which leaves no doubt in the matter eg section 375 of the Bihar and Orissa Municipal Act 1922 which says No prosecution for any offence shall be instituted without the order or consent of the Commissioners Section 353 of the Bengal Municipal Act 1884 was in similar terms
Having regard to the phraseology so adopted there are decisions which say that the sections there considered were 753 obligatory and sanction or consent of the Commissioners was necessary
We have however seen no decision directly bearing on section 537 of the Calcutta Municipal Act 1923 except one to which we shall presently refer and that decision was given in an entirely different context
We may refer first to some decisions which deal not with a Municipal Act but other Acts
Sections 82 and 83 of the Indian have given rise to a divergence of views which need not detain us see Gopi Nath vs Kuldip Singh 1 Nga Pan Gaing vs King Emperor2 and Emperor vs Muhammad Mehdi and Others 3
We do not think that the said provisions in the Indian are in pari materia and the decisions given on the terms of those sections are not of much assistance in solving the problem before us
There is a decision of this Court on which learned counsel for the respondent has placed some reliance
Dr Sailendranath Sinha and Another vs Josoda Dulal Adikary and Another4
That decision dealt with sections 179 and 237 of the Indian Companies Act 1913 and it was held that there was nothing in those sections which indicated that if a liquidator took action without a direction of the court that action would be illegal or invalid
The decision proceeded on the terms of the sections there considered and is of no help in construing section 537 of the Calcutta Municipal Act 1923
Now we come to the decisions under the Municipal Act
In Sisir Kumar Mitter vs Corporation of Calcutta it was observed  Section 537 of the Calcutta Municipal Act as we read it is merely an enabling section and the powers given thereunder to do the various acts specified therein can in our opinion only be exercised in accordance with the provisions of the Code of Criminal Procedure
 Learned counsel for the respondent relies on these observations in support of his contention that the 1 1885 1 2 Rangoon 437
3 All 412
4  5 Cal
96 754 provisions of section 537 are merely enabling provisions
It is worthy of note however that the precise question for decision in that case was entirely different
The question there raised was whether the provisions of section 248 of the Criminal Procedure Code were affected or abrogated by section 537 of the Calcutta Municipal Act
What happened in that case was that the Sanitary Inspector of the Corporation as the complainant filed a petition of withdrawal but the magistrate rejected the application
On a later date the accused was absent and a warrant of arrest was issued against him
The accused then moved the High Court and the main ground taken was that the magistrate should have allowed the withdrawal because section 537 of the Calcutta Municipal Act must be held to have modified the provisions of section 248 of Criminal Procedure Code and taken away the discretion of the magistrate not to permit withdrawal of the case
This contention was negatived and it was held that section 248 of Criminal Procedure Code was neither abrogated nor modified by section 537 of the Calcutta Municipal Act
It was incidentally observed that the Corporation being a creature of the statute it was necessary to give it specific power to institute defend or withdraw from legal proceedings
We do not read the decision as deciding the question if a private person can institute a legal proceeding under the Calcutta Municipal Act independent of the provisions of that Act
It decided merely the short point that section 248 of Criminal Procedure Code was not modified nor abrogated by section 537 of the Calcutta Municipal Act this clearly was right because section 537 does not compel the Municipality to to withdraw from a legal proceeding nor does it impose any obligation on the Court to accept such withdrawal
The other observation made therein appear to us to be obiter and it is unnecessary for us to consider the correctness of those observations though learned counsel for the appellant relying on The Minister of Works and Planning vs Henderson and Others 1 has contended that the mere fact of incorporation without reservation confers on a body corporate the privilege of suing and the liability to be sued
1 1947 1 KB 91
755 The next decision is that of Keshabdeo Kedia vs P Banerjee Sanitary Inspector Howrah Municipality1
This related to section 535 of the Calcutta Municipal Act and it was held that a magistrate was not entitled to act under section 5352 upon a complaint filed by the Sanitary Inspector in his personal capacity in the absence of anything to show that he was authorised by the Chairman of the Municipality or was complaining on behalf of the Municipality or resided or owned property in Calcutta
This decision helps the appellant to the extent that it holds that the right of a private person to make a complaint is cut down by section 535
In The State vs Manilal Jethalal 2 sections 481 and 69 of the Bombay Provincial Municipal Corporations Act 59 of 1949 came in for consideration
Section 481 of that Act gave the Commissioner power to take or withdraw from proceedings in respect of an offence committed under the Act
The complaint in that case was filed by the Jilla Inspector and the argument was that he was not authorised by the Commissioners to take proceedings
This argument was dealt with in the following observations Now it is quite true that the object of section 69 sub section
1 is to empower the Commissioner to delegate his powers under the Act to other Municipal officers with a view that the Commissioner may not himself be burdened with duty of deciding whether any action should be taken against a person who it is alleged has committed an offence either against the Act or the rules
It is also true that whenever the Act gives any power to a Commissioner the power must be exercised by him or by an officer to whom the Com missioner s power is delegated under the provisions of section 69
But we do not think that it would be correct to restrict the meaning of the words take proceedings to actually filing a complaint
The object of section 481 is that whenever it is alleged that any person has committed an offence under the Municipal Act or under the rules framed under the Act he should not be prosecuted unless either the Commissioner himself 1 2 AIR 1953 Born
756 or some responsible officer has had an opportunity of applying his mind to the question as to whether a prosecution should or should not be instituted
But once this has been done there does not seem to be any particular necessity for requiring
that if it is decided to prosecute the complaint must actually be lodged by the Commissioner or the officer to whom his powers are delegated
It is quite true that that words  take proceedings may mean to lodge the complaint oneself
But we think that that is not the only meaning which can be given to these words
It also means to do an act by which a prosecution would be lodged
 This decision also help the appellant in so far as it lays down that whenever the Act gives any power to a Commissioner the power must be exercised by him or by an officer to whom the Commissioner s power is delegated
The decision proceeded however on a somewhat wide meaning given to the words  take proceedings that part of the decision as to the correctness of which we say nothing does not concern us here because the words used in section 537 of the Calcutta Municipal Act are different
Our attention has been drawn to four English decisions where a private person was held competent to make a complaint in respect of 1 consumption of refreshments in places of public resort 2 sale of margarine 3 acts of cruelty to animals and 4 sale of unsound meat Cole vs Coulton 1 Buckler vs Wilson 2 The Queen vs Stewart 3 Giebler vs Manning 4
All these four decisions proceeded on the terms of the statutes under which the offences were alleged to have been committed and it was held that those statutes did not contain any provisions which made it obligatory that the complaint should be made by a particular authority in a particular manner
They do not really help the respondent to establish his contentions that in spite of section 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  2 1896 1 QBD 83
3 4 751 to the point from which we started namely what is the true nature and import of section 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 vs Stewart 1on which learned counsel for the respondent strongly relied dealt with the provisions of the Diseases of the Animals Act 1894
Lindley LJ said  Reading those sections together they in fact affirm the right of any person to prefer an information in most significant terms
Is there anything in the Act or the Order which so clearly restricts that right that we ought to say that in this case no one but the borough council had the right to take proceedings I can find nothing of the kind
 Giebler vs Manning 2 was decided on the terms of section 47 sub section
2 of the Public Health London Act 1891 and the question was could a private person institute proceedings under section 47 sub section
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 vs Cubitt 3
This was a case under the Sea Fisheries Act 1883 46 and 47 Vict
c 22 section 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 could prosecute for an offence against the Act and a rule calling upon the justices to hear and determine a summons for an offence against the Act taken out by a private individual was discharged
Lord Coleridge C J observed 1 2 3 758 any one may enforce the Act section 11 is useless
I do not think that negative words are required to exclude proceedings by persons other than sea fishery officers
For instance if an Act provided that the Attorney General was to sue for a penalty no one else could sue for it it is obvious that if everyone could sue for the penalty the Attorney General could sue for it so that on that view of the statute the clause enabling him to sue would be unnecessary and useless On a parity of reasoning if anybody can institute a legal proceeding under the Calcutta Municipal Act section 537 thereof becomes practically useless
Even without that section the Municipality could do the acts specified therein and it is difficult to understand the necessity of a provision like section 537 unless the intention was to confer a power on the Municipality which power must be exercised in accordance with the provisions of the Act and not otherwise
It was faintly suggested that the absence of a complaint by the Commissioners or the Chairman or a duty delegated authority was a mere error or irregularity which could be cured under section 537 Criminal Procedure Code
Our attention was also drawn to section 79 of the Calcutta Municipal Act 1923
In the view which we have taken the absence of a proper complaint was not a mere defect or irregularity it affected jurisdiction and initiation of proceedings
For these reasons we allow the appeal and set aside the conviction and sentence passed against the appellant
The fine if paid must be refunded to the appellant
HIDAYATULLAH J
In this appeal which has been filed on a certificate of fitness under article 134 1c of the Constitution granted by the Calcutta High Court the appellant challenges his conviction under sections 406 and 407 read with section 488 of the Calcutta Municipal Act as applied to Howrah and the sentence of fine of Rs 200 in default simple imprisonment for 30 days
The appellant Ballabhdas Agarwala is the proprietor of a chain of restaurants and one such restaurant is at the Howrah Railway Station
He had 759 entered into an agreement with the railway and had taken out a vendor s licence No 54 of 1951 datedJanuary 9 1952 by which he was permitted to sell or exhibit for sale sweetmeats betel bidi cigarettes tea cake bread and biscuits and parched gram at Howrah goods shed between January 6 1951 and December 31 1953
On December 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 counter there was a jar containing  butter 
This butter  was being sold to customers
TheSanitary Inspector took three samples of this  butter  from an one pound slab and put them into three clean bottles which were sealed and labelled
Missir was paid Rs 2 as the price
One bottle was left with Missir as required by the rules
Of the remaining two bottles one was sent for analysis of the sample to the Public Analyst West Bengal
On the report of the Analystthat the sample did not contain any butter fat at alland contained an excess of water the Health Officeraccorded sanction for the prosecution of the appellant and Missir
The complaint was signed by the Sanitary Inspector as well as the Health Officer
The case was tried summarily and the Magistrate acquitted both the accused because in his opinion the samples were taken not from the jar from which butter was being sold to the other customers but from another jar
The High Court however set aside the order and the case was retried
It resulted in theconviction and sentence of the appellant as stated above
The Sessions Judge appellate jurisdiction who was moved by a criminal motion rejected the motion
The appellant then moved the High Court in revision but Debabrata Mookerjee J dismissed it summarily
The appellant applied for and obtaineda certificate of fitness under article 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 not authorised to sell butter and 760 thus he was not responsible for the sale in question
It was contended that the sale might have been made by Missir on his own account
This contention is without substance
That there was a sale of the seized article at the restaurant of the appellant goes without saying
Sections 406 and 407 of the Calcutta Municipal Act make the sale of adulterated or misbranded article an offence and every person who sells such article directly or indirectly himself or by any other person is liable
Even though such sale might be outside the permit of the vendor s licence the seized article was in fact sold
The words of the sections vicariously fasten the responsibility on masters for the acts of the servants and the maxim qui facit per alium facit per se applies
The finding is that the sale was for and on behalf of the proprietor and in view of the clear words of the section he would be answerable
Next it was argued that this was not a case of adulteration  at all because there was in fact no butter fat in the sample analysed
Reference was made to a decision of the Punjab High Court in Mangal Mal vs The State 1 in support of the contention that the prosecution for the sale of  adulterated  butter was defective
No doubt the ordinary sense of  Adulteration  connotes the mixing of deleterious or other substance with the main basic article but the definition in the Act has been widened to include even those articles where the contents do not include the basic substance either wholly or partly
In view of the definition this line
of criticism was rightly not pressed
The last point is the main argument in this case on the strength of which the certificate was obtained
The argument is that the complaint presented to the Court in this case was by an unauthorised person and was thus no complaint at all
The argument embraced a consideration of certain sections of the Calcutta Municipal Act 1923 as applied to Howrah and of the Bengal Municipal Act 1932 and the notifications issued under them
The first section to which reference 1 AIR 1952 Pun
761 was made is section 537 of the Calcutta Municipal Act in its application to Howrah Municipality
It reads thus The Commissioners may a institute defend or withdraw from legal proceedings under the Calcutta Municipal Act 1923 as in force in the Municipality of Howrah or under any rule or by law made thereunder b compound any offence against the Calcutta Municipal Act 1923 as in force in the Municipality of Howrah or against any rule or by law made thereunder which under any enactment for the time being in force may lawfully be compounded c admit compromise or withdraw any claim made under the Calcutta Municipal Act 1923 as in force in the Municipality of Howrah or under any rule or by law made thereunder and d obtain such legal advice and assistance as they may from time to time think it necessary or expedient to obtain for any of the purposes referred to in the foregoing clauses of this section or for securing the lawful exereise or discharge of any power or duty vesting in or imposed upon the Commissioners or any municipal officer or servant
 It is contended for the appellant that the Commissioners are the only body of persons who could have instituted the complaint
In reply it is pointed out that under section 12 of the Calcutta Municipal Act as applied to Howrah the Commissioners can delegate their functions to a Chairman by a resolution passed at a special meeting and the Chairman can also by a general or special order in writing re delegater any of the delegated powers to the Vice Chairman or to any municipal officer
This power of delegation authorises both the Commissioners as well as the Chairman to delegate or re delegate as the case may be their powers under the Bengal Municipal Act also
The Divisional Bench of the Calcutta High Court referred to section 51 of the Bengal Municipal Act 1932 as enabling delegation but that section has no application in view of the provisions of section 542 of the Calcutta Municipal Act which repeals section 51 of the Bengal 97 762 Municipal Act in its application to the Howrah Municipality
I have thus only section 12 of the Calcutta Municipal Act in its application to the Howrah Municipality to consider and as summarised above it permits delegation of powers from the Commissioner to the Chairman and from the Chairman to the ViceChairman or any other officer of the Municipality
It was by virtue of this section that the Chairman was presumably delegated the powers of the Commissioners though no proof has been given in this case
No point was made of the lack of this evidence and I need say nothing about it
If it had been raised the prosecution would have led evidence if available
But without this objection having been raised at an appropriate stage it is impossible to say now that it is well founded
It is however in the re delegation of the powers from the Chairman to the other officers of the Municipality that the question whether such delegation was existing on the date on which the prosecution was initiated against the appellant has arisen
A number of notifications must now be set out because it is contended that the later notifications rescind or modify those issued earlier Howrah Municipality order
I hereby delegate to the Vice Chairman Dr Beni Chandra Dutta all my powers duties and functions as Chairman in respect of the following departments which are placed under his charge 2
Health Department
The 6th February 1948
section K MukherjiChairman
Howrah Municipality
Order
I hereby delegate my powers and functions to the Health Officer to order prosecution to sign prosecution sheets in respect of cases concerning the Health and Conservatory Departments
763 The 20th December 1949
section 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
section K Mukherji Chairman
Howrah Municipality
Order
I hereby delegate to the Vice Chairman Sri Sankar Lal Mukherji all my powers duties and functions as Chairman in respect of the following departments which are placed under his charge
          2
Health Department
         
The 4th July 1951
K C Dutta Chairman
 It is admitted in this case that the election of the Executives by the New Board took place between April 7 1951 and July 4 1951
V Howrah Municipality
Order
I hereby revoke my order dated the 4th July 1951 so far as it relates to Health Department which shall henceforth be direct under my charge until further orders
This will take effect from 15th December 1952
The 12th December 1952
Sd K C Dutta Chairman
 This was the position of the Orders on December 2 1953 the date of the offence and also on January 5 1954 when the complaint was filed
Now the municipal corporation is a collection of persons and is invested with a legal personality by the statute under which it is created
The statute 764 gives it perpetual succession and a power to act in many ways
Among its multifarious functions is an inherent power to sue or be sued by its corporate name but the statutes creating such corporations aggregate provide expressly for such power
In the absence of provision to the contrary the body corporate in such matters must act as a corporation
The inconvenience of having the entire body to meet and decide upon every individual case is apparent and the law therefore provides for delegation of the functions of the body corporate to the Chairman
Even there the burden on the Chairman s time would be enormous and thus the law enables him to re delegate in his turn his delegated powers to others
Section 12 of the Calcutta Municipal Act enables the Chairman to delegate his powers duties or functions to the Vice Chairman or to any municipal officer
Such officers are to be distinguished from mere servants who carry out orders but do not exercise definite Municipal do
This distinction was made in Abbott s Corporations Vol 11 p 1456 etc and is to be found reflected also in the Act under consideration
An officer of the municipality must himself perform his them to others unless expressly authorised in this behalf
The Act does not so empower the officers to delegate their functions in their turn and thus an officer to whom the power is delegated by the Chairman must perform them himself
A glance at the Act under consideration will show the numerous functions with which the Act invests the Chairman
In addition the Chairman is invested with the functions delegated by the Commissioners
In most municipalities if not all the Chairman maintains an order book in which he designates the officers to whom his functions are delegated
In the present case there are extracts from the orders of the Chairman from May 9 1938 to April 22 1957 exhibit A
These extracts show only the powers and functions delegated to the Engineer Water Works Overseers and they run the course of thirteen pages of small print in the Paper Book and involve one hundred 765 and thirty seven special delegations
If the whole book were to be before us these special delegations will show an enormous number of specially delegate
powers
These functions cannot be performed by any but the officers concerned and are not taken away every time the Chairman passes an order investing by a general order his functions in the Vice Chairman or withdraws them from him
Notification No 11 quoted above was a special delegation and would presumably figure in the order book as an item in the duties of the Health Officer specially delegated to him
After this delegation it was the Health Officer and Health Officer alone who could exercise this power
It is contended however that the Order of April 7 1951 No 111 led to the cancellation of the Order of December 20 1949 No 11 or at least imposed a time limit till the election of the new Board
I am afraid this is not a correct interpretation of the No doubt the Chairman stated that he delegated all his powers and functions to the respective officers of the departments till the election of the new Board but the officers of the Department are invested with both administrative and special powers
In my opinion a distinction must be made between delegation of a power to do special acts by a special order and delegation of a general character which can only be interpreted generally as applicable to administrative control
Section 12 itself contemplates two kinds of orders and it cannot be gainsaid that the Order of December 20 1949 No 11 was a special Order while the Order of April 7 1951 was a general one
The first Order No 1 dated February 6 1948 delegated all the powers of the Chairman in respect of the Health and other Departments to the Vice Chairman
It did not mean that the order book exhibit A came to an end nor did it mean that from February 6 1948 it was the Vice Chairman who alone could do all that is mentioned in the thirteen pages printed in the Paper Book and what is presumably there regarding other departments
Delegation of administrative powers is one thing and delegation of 766 power to do some specific act or acts is quite another
The general order in favour of the Vice Chairman No 1 would not cut down the special orders of the Chairman
The general order cannot be read as specialbecause generalia verba sunt generaliter intelligenda and generalities never derogate from specialities
It only granted the residuary powers which were not covered by the special delegations from time to time
No doubt the word used is all but the whole intent and purpose of the delegation must be borne in mind
Qui haeret in litera haeret in cortice
Broome s Legal Maxims 9th Edn p 443
The rules of interpretation of statutes only follow rules of interpretation of deeds and instruments and not vice versa
To hold otherwise would mean that after the order of February 6 1948 No 1 all functions duties and powers including those specifically mentioned in the order book came to be centred in the Vice Chairman
It was he alone who could inspect and examine house drains section 275 approve the site and position of the cesspools section 279 issue or serve notices section 503 inspect the service pipes R 5 3 examine the water pipes R 6so on and so forth
And yet this would be the effect of the Order of February 6 1948 if the effect of the Order of April 7 195 1 on the Order of December 20 1949 is as is claimed
It may be contented that if that is the effect of the Order we can declare it to be so  but one reaches this result only if one disregards the distinction between special and general orders and there is no principle of interpretation on which it can be rested
The special delegation order of December 20 1949 could only come to an end if it was withdrawn either expressly or by necessary implication
No doubt it was a delegation by Mr section K Mukherjee and he ceased to hold office later but the delegation made by him would not fall by that reason alone
The delegation was not personal to Mr Mukherjee but was made by virtue of office and it could only cease to be operative if cancelled in the same manner by the same officeholder or his successor
It was however argued that it came to an end because of a time limit imposed by 767 the Chairman by his Order of April 7 1951 No 111
That Order stated that powers and functions except those delegated to the Vice Chairman were to be exercised till the election of the Executives by the new Board
But the time limit was imposed on powers delegated by that Order
This is clear from the language employed   Till the election of Executives by the New Board I delegate all my powers and functions to respective officers of departments
 The contention is that this Order had the effect of imposing a time limit on all delegations made even before
This general order did not have this effect on a special order for the reasons stated
The delegation of the power to order prosecution and to sign prosecution sheets was specially conferred by the Order of December 20 1949 No 11 and was not revoked by the general order which could not be read specially  nor was it intended that this power was to have a time limit
By officers of the department was not meant the officers on whom special powers were conferred to do special acts
The Order quoted above is in general terms and puts a timelimit on the delegation made by that order
It says nothing about delegations of a special kind already in existence or that the general order was to be in supression of all special orders
It does not in terms seek to affect them either expressly or even by implication
In my opinion the special delegation made by the Order of December 20 1949 No 11 remained unaffected and thus enables the Health Officer to file the complaint
In this view of the matter it is unnecessary to decide whether section 537 of the Calcutta Municipal Act is merely enabling or mandatory and whether in the absence of a proper delegation the Health Officer or other officers of the Municipality or any private person could have initiated the prosecution in such a case
I would therefore hold that the appeal has no force and that it should be dismissed
ORDER OF COURT In view of the judgment of the majority the appeal is allowed
Appeal allowed


Summary:
The draft standing orders submitted by the appellants to the certifying officer for certification under section 31 Of the  were altered by the latter on the footing that the modifications were necessary so as to be in conformity with the model standing orders
Section 4 Of the Act before it was amended in 1956 provided that it shall not be the function of the certifying officer or the appellate authority to adjudicate upon the fairness or reasonableness of the provisions of any standing order while under section 32 the draft shall be as far as is practicable in conformity with the model standing orders where they have been prescribed
The question was whether the certifying officer had jurisdiction to make the modifications in the present case
Held that there is a distinction between considerations of fairness or reasonableness and those of practicability and that though the certifying officer may not modify the draft on the ground that its provisions are unfair or unreasonable he can and must modify it in matters covered by the model standing 975 orders if he is satisfied that conformity with such model standing orders is practicable in the circumstances of the case
Electric Workers  Union vs The U P Electric Supply Co AIR 1949 All 504 disapproved
Jiwan Mal  Co vs Secretary Kanpur Loha Mills Karmachari Union  Ors AIR 1955 All
581 and Mysore Kirloskar Employees  Association vs Industrial Tribunal Bangalore and Anr  approved