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Corporation of the City of Nagpur Vs. Ramdas Mahadeorao Gulhane and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai High Court
Decided On
Judge
Reported in1980CriLJ597
AppellantCorporation of the City of Nagpur
RespondentRamdas Mahadeorao Gulhane and anr.
Excerpt:
.....land revenue code which conferred a power upon the state by issuing notification in the official gazette, to direct that the additional commissioner shall exercise the powers and discharge the duties and functions of the commissioner under maharashtra land revenue code, as well as under any law for the time being in force. then section 13 (3) of the code confers a power upon the state government, by issuing a notification in the official gazette to direct that the additional commissioner shall exercise the powers and discharge the duties and functions of the commissioner under the provisions of the maharashtra land revenue code as well as under any law for the time being in force. 15. i fail to see how this ruling also can be successfully pressed into service, so far as the point..........in this criminal appeal is, whether the sanction for prosecution granted by the additional deputy municipal commissioner of the city of municipal corporation nagpur under section 60 of the bombay shops and establishments act of 1948, (for short hereinafter called 'the bombay shops act') is a valid sanction or not, within the meaning of section 60 of the said act,2. this appeal is preferred by the corporation of the city of nagpur, being aggrieved by the order passed by the learned sessions judge nagpur, setting aside the conviction and sentence of respondent no. 1 passed by the judicial magistrate first class (corporation), who had convicted him under section 7 (2-a) and sections 51 and 325 read with section 52 of the bombay shops and establishments act.3. the conviction and.....
Judgment:

Waikar, J.

1. The only point for consideration, in this Criminal Appeal is, whether the sanction for prosecution granted by the Additional Deputy Municipal Commissioner of the City of Municipal Corporation Nagpur under Section 60 of the Bombay Shops and Establishments Act of 1948, (for short hereinafter called 'the Bombay Shops Act') is a valid sanction or not, within the meaning of Section 60 of the said Act,

2. This appeal is preferred by the Corporation of the City of Nagpur, being aggrieved by the order passed by the learned Sessions Judge Nagpur, setting aside the conviction and sentence of respondent No. 1 passed by the Judicial Magistrate First Class (Corporation), who had convicted him under Section 7 (2-A) and Sections 51 and 325 read with Section 52 of the Bombay Shops and Establishments Act.

3. The conviction and sentence were set aside by the learned Sessions Judge, holding that the sanction granted to the prosecution under Section 60 of the Bombay Shops Act, by the Additional Deputy Municipal Commissioner was not valid and hence the complaint was liable to be dismissed for want of valid sanction.

4. When this appeal came up for hearing an application No. 346 of 1979 was filed by the appellant for permission to file certain documents on record. This application is not very seriously opposed by the respondents. The documents which are sought to be filed are : (1) A resolution dated 30-3-1962 passed by the Corporation investing the Municipal Commissioner and the Deputy Municipal Commissioner with the powers to sanction prosecution under Section 60 of the Bombay Shops Act, (2) An order dated 4-3-1975 passed by the Municipal Commissioner, delegating certain powers under Section 59 of the City of Nagpur Corporation Act, 1948 to the Additional Deputy Municipal Commissioner Shri S. R. Motghare including the powers under the Bombay Shops Act, (3) Creation of the post of Additional Deputy Municipal Commissioner by the Corporation by resolution dated 21-12-1972, (41) Government of Maharashtra accorded sanction to the creation of the post of Deputy Municipal Commissioner though designated as Additional Deputy Municipal Commissioner.

5. All these documents were permitted to be filed in this appeal.

6. Section 60 (1) of the Shops Act i? in these terms ;-

No prosecution under this Act or the rules or orders made thereunder shall be instituted except by an Inspector and except with the previous sanction of the District Magistrate or the local authority, as the case may be:-Provided that any local authority may direct that the powers conferred on it by this sub-section shall, in such circumstances and subject to such conditions if any, as may be specified in the direction, be exercised by its standing committee or by any committee appointed by it in this behalf, or, if such local authority is a Municipal Corporation by its Municipal Commissioner, Deputy Municipal Commissioner or Assistant Municipal Commissioner.

7. Thus the section makes a distinction between a local authority which is Municipal Corporation and any other local authority. In case of a local authority, other than Municipal Corporation, it is provided that such local authority may direct the powers conferred by this sub-section to be exercised either by its standing committee or by any committee appointed by it in that behalf However, so far as the local authority that is the Municipal Corporation is concerned, three authorities have been Specified namely (1) Municipal Commissioner, (2) Deputy Municipal Commissioner, (3) Assistant Municipal Commissioner.

8. What is submitted by Mrs. Hardas is that the term Municipal Commissioner not having been defined in the Bombay Shops Act, a reference has been made to the definition to be found in Section 5 (9) of the City of Nagpur Corporation Act 1948 which reads thus:

Commissioner means the Municipal Commissioner for the City appointed under Section 45 and includes an acting Commissioner appointed under Sub-section (3) of Section 48 and any Municipal Officer empowered under this Act to exercise, perform or discharge any of the powers, duties or functions of Commissioner to the extent to which such officer is so empowered.

She further referred me to Section 50 (4) of the City of Nagpur Corporation Act which empowers the Municipal Commissioner to confer powers of Commissioner on any Municipal Officer which is in these terms.

Any of the powers, duties or functions conferred or imposed upon or vested in the Commissioner by this Act may be exercised, performed or discharged under the Commissioner's control and subject to his superintendence and to such conditions and limitation, if any, as he may think fit to prescribe, by any Municipal Officer whom the Commissioner may generally or specially empower in writing in this behalf.

(Underlining mine)

9. It is, the therefore, submitted by Mrs. Hardas that the Municipal Commissioner acting under Section 59 (4) of the Act has delegated his powers to the Additional Deputy Municipal Commissioner by his order dated 4-3-1975,

10. In support of her submission Mrs. Hardas relied upon Gulabrao Bablaji Ujjainkar v. State of Maharashtra 1976 MahLJ 393 (Bom). In that case, notification issued under Section 4 (1) of the Land Acquisition Act by the Additional Commissioner was challenged on the ground that powers under Section 4 (1) are conferred by the legislature only on the Commissioner. On behalf of the State, reliance was placed on Section 13 (1) of the Maharashtra Land Revenue Code which conferred a power upon the State by issuing notification in the official gazette, to direct that the Additional Commissioner shall exercise the powers and discharge the duties and functions of the Commissioner under Maharashtra Land Revenue Code, as well as under any law for the time being in force.

(Underlining mine)

11. In this connection, it was, therefore, observed:

Then Section 13 (3) of the Code confers a power upon the State Government, by issuing a notification in the official gazette to direct that the Additional Commissioner shall exercise the powers and discharge the duties and functions of the Commissioner under the provisions of the Maharashtra Land Revenue Code as well as under any law for the time being in force.

12. Thus, there was no question of delegation of powers involved for consideration. The question was one of interpretation of the expression or the word 'Commissioner' and it was held that by virtue of Section 13 (3) of the Maharashtra Land Revenue Code, it included Additional Commissioner also. It is pertinent to note that Section 13 (3) ibid embodies the expression 'under any law for the time being in force'. The notification under Section 13 (3) in specific terms referred to the duties and functions conferred on the Commissioner under the Land Acquisition Act. Kad the words, 'under any law for the time being in force' not been in existence in Section 13 (3) ibid, it would be doubtful, whether the notification for the purpose of Land Acquisition Act could be issued.

13. In the instant case the delegation of his powers by the Municipal Commissioner as contemplated by Section 59 (4) of the City of Nagpur Corporation Act (extracted above), refers to the powers, duties and functions conferred or vested in the Commissioner by that Act, i. e, by the City of Nagpur Corporation Act. To hold that by virtue of Section 59 (4) of the said Act, the Commissioner could delegate his powers under Section 60 of the Bombay Shops Act to any Municipal Officer would be to read something more in Section 59 (4).

14. Mrs. Hardas's next reliance was on Central Talkies Ltd. v. Dwarka Prasad : 1961CriLJ740 . It was a case under the U. P. Control of Rent and Eviction Act, Section 3 of that Act enjoined that no suit shall be filed for eviction without the previous sanction of the District Magistrate. Section 2 (d) of that Act further provided that the District Magistrate would include an officer authorised by the District Magistrate to perform any of his functions under that Act. An application was made to the District Magistrate, who had transferred the case to the Additional District Magistrate. The permission was granted by the Additional District Magistrate, and Us validity was questioned on the ground that the Additional District Magistrate was not empowered by the District Magistrate to exercise his powers under the Act. In this connection, it was observed:

By the act of transferring the case to the Additional District Magistrate, the District Magistrate must be deemed to have authorised him to exercise his powers under Section 3 of the Eviction Act. However, it is not necessary to rely upon this aspect of the case, because in our opinion, Section 10 (2) of the Code of Criminal Procedure gave ample powers to Mr. Brijpal Singh Seth to accord permission for bringing the suit, and the order of the District Magistrate, even if treated as a transfer was valid.

15. I fail to see how this ruling also can be successfully pressed into service, so far as the point involved for consideration here is concerned.

16. Shri Gupte the learned Counsel for the respondent No. 1 (accused) on the other band referred me to State of Maharashtra v. Samarilal Chhaganlal Agrawal 1976 MahLJ 92 (Bom). It was a case under the Essential Commodities Act. Section 6-A of that Act, required that whenever an essential commodity was seized, it had to be produced without any reasonable delay before the Collector of the District and the Collector, if satisfied that there has been contravention of the order, could make an order for confiscation. In that case, the show cause notice was issued by the Sub-Divisional Officer and the order of confiscation was also made by him. In the Essential Commodities Act, the word 'Collector' was not defined. It was argued that under Section 13 (4) of the Maharashtra Land Revenue Code, the Sub-Divisional Officer could perform all the duties and functions and could exercise all powers conferred upon the Collector by the Code or by any law for the time being in force. It was, therefore, canvassed on behalf of the State that the Sub-Divisional Officer was a Collector for the purpose of Section 6-A of the Act. The submission was negatived with this observation:

It is therefore clear to me that under Section 6-A of the Essential Commodities Act the essential commodity has to be produced before the Collector of the district; a show cause notice under Section 68 of the Act has also to be issued by the Collector and the ultimate order, of the confiscation also has to be made only by the Collector. They power of confiscation cannot be exercised by the Sub-Divisional Officer.

17. To sum up, therefore, Section 60 of the Bombay Shops Act, makes a distinction between a local authority which is a Municipal Corporation, and any other local authority. A local authority other than a Municipal Corporation can direct that the powers under this section shall be exercised either by its' standing committee, or by any committee appointed by it in this behalf, whereas in case of local authority which is a Municipal Corporation the officers concerned are : - (1) Municipal Commissioner, (2) Deputy Municipal Commissioner and (3) Assistant Municipal Commissioner. The Bombay Shops Act does not define these officers, and one may, by virtue of Section 2 (15) read with item 1 of Sch. II-A of the Bombay Shops Act turn to the City of the Nagpur Corporation Act for definition of these officers. The definition of the term 'Commissioner' in Section 5 (9) of the City of Nagpur Corporation Act, no doubt includes any Municipal Officer who is empowered under the said Act, but Section 59 (4) empowers the Commissioner to delegate only such of his powers to any of the Municipal Officers as are-imposed and vested on him by that Act (i. e. City of the Nagpur Corporation Act).

18. The authorisation or delegation of powers contemplated by Section 59 (4) is limited and circumscribed to the delegation of only such powers which are imposed upon or vested on the Commissioner under the said Act.

19. It was lastly submitted by Mrs. Hardas that in fact a post of a Deputy Municipal Commissioner has been created and it is only designated as Additional Deputy Municipal Commissioner and as such the sanction accorded by the Additional Deputy Municipal Commissioner in the instant case must be deemed to be a sanction accorded by the Deputy Municipal Commissioner within the meaning of Section 60 of the Bombay Shops Act. This submission again cannot be accepted. The authority specified in Section 60 is only Deputy Municipal Commissioner and what is contemplated, therefore, is not a class of persons holding a particular equivalent post. There is no reason, in fact to deviate from the normal rule that the expressions or words which are used in an enactment or a notification must be read as such and not in any other manner.

20. I thus find that the learned Sessions Judge Nagpur was justified in holding that the sanction accorded by the Additional Deputy Municipal Commissioner is not a valid sanction.. The decision of the learned Sessions Judge, therefore, is correct. There is no substance in this appeal and the same has to be dismissed. Appeal dismissed. Rule discharged.


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