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In Re: Motilal Amratlal Shah - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case Number Criminal Application for Revision No. 301 of 1930
Judge
Reported in(1930)32BOMLR1502; 129Ind.Cas.342
AppellantIn Re: Motilal Amratlal Shah
Excerpt:
.....- - that application as well as the application to stay the complaint pending decision of the civil suit were rejected by the magistrate. 3. it is undoubted that in regard to acts which are offences under the special law as well as offences under the general law, the fact that an act is an offence under a special law cannot exclude the right of any imdividual aggrieved to lodge a complaint under the more general law. for instance, where an act was an offence under the cattle trespass act as well as under section 82 of the old bombay district municipal act (vi of 1873) corresponding to the present section 161, the complaint by the private individual was held to be within the law: the matter was one within the competence of the municipality alone to grant or to withhold permission,..........rescinded as being opposed to a certain rule, but he maintained it. the opponent neighbour tiled a civil suit to compel him to remove the weather shed and subsequently filed the present complaint before the first class magistrate mehmadabad, purporting to be made under sections 161 and 155 of the district municipal act, in respect of this weather shed. the petitioner accused contended that the complaint was without jurisdiction, not having been made by the municipality. that application as well as the application to stay the complaint pending decision of the civil suit were rejected by the magistrate. the accused aplies in revision to this court and asks that the proceedings should be quashed or, in the alternative, they should be stayed pending decision of the civil suit.2. it is argued.....
Judgment:

Madgavkar, J.

1. The petitioner applied to the Municipality of Mehnmdabad for permission to put up a weather shed. He first obtained permission to put it up. Subsequently the permission was rescinded as being opposed to a certain rule, but he maintained it. The opponent neighbour tiled a civil suit to compel him to remove the weather shed and subsequently filed the present complaint before the First Class Magistrate Mehmadabad, purporting to be made under Sections 161 and 155 of the District Municipal Act, in respect of this weather shed. The petitioner accused contended that the complaint was without jurisdiction, not having been made by the Municipality. That application as well as the application to stay the complaint pending decision of the civil suit were rejected by the Magistrate. The accused aplies in revision to this Court and asks that the proceedings should be quashed or, in the alternative, they should be stayed pending decision of the civil suit.

2. It is argued for the petitioner that Section 155 read with Section 161 of the Bombay District Municipal Act (III of 1901) implies that the legislature intended the prosecution to be instituted by the Municipality alone and not by a private individual such as the opponent. It is argued for the Crown that under the general law relating to the definition of offence under the Code of Criminal Procedure, it is open to any individual to lodge a complaint under Section 155 equally with the Municipality.

3. It is undoubted that in regard to acts which are offences under the special law as well as offences under the general law, the fact that an act is an offence under a special law cannot exclude the right of any imdividual aggrieved to lodge a complaint under the more general law. For instance, where an act was an offence under the Cattle Trespass Act as well as under Section 82 of the old Bombay District Municipal Act (VI of 1873) corresponding to the present Section 161, the complaint by the private individual was held to be within the law: Queen-Empress v. Mulchand (1887) U Cr. C. 355; similarly , where the complaint was a nuisance: Queen-Empress v. Bai Reva (1892) U. Cr. C. 630. But where an act is not an offence under the general law but under the special law, under which a certain public authority is invested with a definite duty and with definite powers to discharge it, the question is more doubtful. Thus, for instance, under the City of Bombay Municipal Act (Bom. Ill of 188) a complaint under Sections 68, 231, 471, and 517 could only be lodged by the Commissioner or by an official to whom he delegates his function under Section 68. The language of Section 517 of that Act is as follows : ' The Commissioner may (a) take, or withdraw from, proceedings against any person who is charged with (i) any offence against this Act; etc.' There is no express provision in the section that no other person can institute such proceedings. Similarly it was held in The Queen v. Cubitt (1889) 22 Q.B.D. 622 that 'where a statute creates an offence and specified certain persons as those by whom the provisions of the Act shall be enforced, no other person can prosecute for the offence.' In Bradlaugh v. Clarke (1883) 8 App. Cas. 354, it was observed (p. 358):-

Where a penalty is created by statute, and nothing is said as to who may recover it, and it is not created for the benefit of a party grieved, and the offence is not against an individual, it belongs to the Crown, and the Crown alone can maintain a suit for it.

4. These decisions are referred to and followed in Ashutosh Ganguli v. Watson ILR (1926) Cal. 929. In Chunilal v. Ahmedabad Municipality : (1911)13BOMLR958 , following Wolverhampton New Waterworks Co. v. Hawkesford (1859) 6 C.B.N.S. 336, it was held:

Where a statute creates a right not existing at common law and prescribes a particular remedy for its enforcement, then that remedy alone must be followed.

5. In the present case, it is clear that there is no general right in the petitioner to erect such a weather shed. The matter was one within the competence of the Municipality alone to grant or to withhold permission, and the offence complained of by the opponent, if any, arises, by reason of disobedience to the order of the Municipality. On general grounds it is clear that where a statute invests any public body or officer with the enforcement of any order and enacts that that body may institute prosecutions, such a provision would be unnecessary unless the legislature contemplates that body alone as the proper person to institute prosecutions. A general right would include that body and would not need express enactment, and unless the right was confined to that body, such an enactment, on the whole, would be meaningless. In the present cases. 161 expressly enacts: 'The municipality and...the chief officer may direct any prosecution for any public nuisance...' We are of opinion, on the whole, that the legislature contemplated that the prosecution, if any, should be instituted by the Municipality alone and not by a private individual such as the opponent, so long as the acts complained of were offences only under the Act and not under any other Act, as in the present case.

6. In this view it is not necessary to consider the question of stay though, had we come to a different conclusion, in the special circumstances, the decision of the civil suit prior to the decision of the criminal proceedings might have been advisable: Jehangir v. Framji (1928) 30 Bom. L.R. 262.

7. For these reasons we allow the application, make the rule absolute, and quash the present prosecution by the opponent as being made without jurisdiction.

8. This order is made without prejudice to the questions pending in the civil suit.


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