V.B. Raju, J.
1. This is a revision application by one Soni Tribhovandas Kalidas who was accused No. 2 in Criminal Case No. 427 of 1959 and who is convicted in that case under Section 96(5) of the Bombay District Municipal Act hereinafter referred to as the Act.
2. In the petition it is stated that after taking the permission of the Limbdi Municipality on 14-11-1935 the applicant constructed one window and two Jalias on the third floor of his house but subsequently on 14-7-36 the Thakore Saheb of Limbdi ordered him to close the said window and jalias. The applicant complied with the said order. But on 19-6-59 the applicant removed the construction which had blocked up the window and Jalias and the Limbdi Municipality filed a complaint for having opened them without obtaining the permission of the Municipality. The applicant was prosecuted by the Secretary of the Municipality and convicted under Section 96(5) of the Act. In revision before the learned Sessions Judge two contentions were raised viz. that as the Municipality had given permission in 1935 for the construction of the window and two Jalias it was not necessary to take permission of the Municipality for re-opening the window and Jalias which were blocked in 1936 under orders of the Thakore Saheb. The second point urged was that it was not competent to the Secretary of the Municipality to file the prosecution and that the General Body was not competent to delegate its power to prosecute to the Managing Committee. Both these contentions were rejected by the learned Sessions Judge. He however reduced the sentence of fine of the applicant from Rs. 150/to Rs. 101/-. In revision before me the same points are urged.
3. As regards the first point it is true that permission of the Municipality had been taken in 1935 for the construction of the window and two jalias. If the prosecution and the conviction related to the construction of the window and the jalias then obviously the conviction would be wrong because the window and jalias had been constructed in 1935 with the permission of the Municipality. But what the applicant was prosecuted for is the removal in 1959 of the construction which had blocked up the window and jalias. This would amount to an external alteration and for altering externally a building permission of the Municipality has to be taken under Sub-section (1) of Section 96 of the Act. As the applicant had not taken the permission of the Municipality for this external alteration his conviction under sect 96(5) of the Act is quite proper.
4. The second point urged is that the General Board was not empowered to delegate to the Managing Committee its power to prosecute. The General Board passed a Resolution No. 9 which is at Ex. 10. The General Board resolved that the question whether to settle or compromise the dispute with the applicant or to prosecute the applicant should be delegated to the Managing Committee and that the Managing Committee was empowered to authorise the Secretary to prosecute the applicant in case it decides that he should be prosecuted. Section 161 of the Act provides that the Municipality and in the case of offences against any of the provisions of the Act mentioned in Section 183(d) the Chief Officer may direct prosecution. The effect of the resolution passed by the General Board of the Limbdi Municipality is that the Managing Committee should try to settle or compromise the matter and if there was no settlement or compromise the Managing Committee was empowered to authorise the Secretary to prosecute the applicant. In my opinion this does not amount to a delegation of its powers. The specific question whether to prosecute Soni Tribhovandas Kalidas was considered by the General Board and the General Board decided that if there was no compromise with Soni Tribhovandas he should be prosecuted and that the Managing Committee should authorise the Secretary 10 prosecute the said person. This does not amount to a delegation of powers. But it amounts to a conditional direction to prosecute in case there was no settlement or compromise of the dispute with Soni Tribhovandas Kalidas.
5. Moreover Section 96 of the Act is one of the sections referred to in Section 183 of the Act. It was therefore competent for the Chief Officer to direct the prosecution. It is said that there was no Chief Officer in the Limbdi Municipality. But it is conceded that there is no officer superior to the Secretary. The Chief Officer means the Chief Executive Officer whatever be his designation. The Secretary of the Limbdi Municipality is therefore the Chief Officer as there is no other Chief Executive Officer. He was therefore competent to direct the prosecution. I therefore hold that there is no merit on the contention relating to the question whether the Secretary can be authorised to prosecute the applicant.
I Therefore reject both the contentions. The revision application is dismissed.