N.M. Miabhoy, J.
1. This is a group of 23 appeals in one of which two questions relating to municipal law and in the rest one such question arise for decision. The facts involved in all the 23 appeals are the same except that the dates are different. We will narrate the facts obtaining in Criminal Appeal No. 400 of 1961 in order to understand the points in dispute in that appeal and the point in dispute in the rest of the appeals. After narrating the facts we will formulate the points and proceed to discuss them. Criminal Appeal No. 400 of 1961 is by the State of Gujarat. The respondent in that appeal is one Shri Nathumal Visandas. He was a hawker in fruits and vegetables hawking his articles in a handbarrow within the limits of the Municipality of Dwarka. The latter Municipality was constituted during the old Baroda regime and there is no dispute that it is now governed by the Bombay District Municipal Act 1901 (hereafter called the Act). This Municipality framed two rules under Section 46 and five by-laws under Section 48 of the Act which affect hawkers of fruits and vegetables. By the second rule the Municipality levied a licence fee on hawkers of vegetables and fruits charging them with a daily fee of four annas or a monthly fee of Rs. 5/or a yearly fee of Rs. 50/-. By-law No. 1 directs every hawker of fruits and vegetables (hereafter called hawker simpliciter) to take out a daily permit or a monthly or yearly licence for hawking his wares within the municipal limits. By-law No. 2 casts a duty upon the Secretary of the Municipality or any other person authorised in that behalf to grant daily permit or monthly or yearly licence in the form specified in the Schedule A to the by-laws after collecting fee at the rate specified in Rule 2. By-law No. 4 enacts that a hawker who commits breach of by-law No. I shall be liable to pay a fine of Rs. 10/ for the first day and Rs. 2/for each subsequent day. By-law No. 3 enacts the conditions of licence and by-law No. 5 renders a licence committing a breach of any of these conditions liable to payment of a fine not exceeding Rs. 25/and makes him also liable to have his licence cancelled or withdrawn. These rules and by-laws came into force on 15th of January 1956. It appears that the respondent in appeal No. 400 of 1961 and the respondents in the other appeals either took out daily permits or yearly or monthly licences upto 1st of July 1960 but failed to do this as and from that date. However inspite of this failure all the respondents continued to carry on their business of hawking fruits and vegetables within the limits of the Municipality. The consequence was that these respondents carried on the business of hawking without proper permits or licences having been taken out under by-law No. 1 and without payment of the licence fee as provided for in rule No. 2. Therefore on 8th August 1960 the secretary of the Municipality addressed a notice to the respondent in appeal No. 400 of 1961 (hereafter called respondent simpliciter) informing him that he should obtain daily monthly or yearly permit before doing his business and drawing his attention to the fact that the above business could not be continued without obtaining such a permit. The notice further stated that by conducting the business after 1st July 1960 the respondent had committed a breach of the rules and by-laws relating to the conduct of business in sale of fruits and vegetables (hereafter called rules and by-laws). The notice ended by stating that the respondent should obtain a licence according to the rules and by-laws failing which further action would be taken against the respondent The respondent did not give any reply to this notice. On 20th August 1960 The Municipality at its meeting held on that day passed a unanimous resolution in which it resolved that the Municipal President was invested with all the powers for Making arrangements for filing complaints for infringement of the municipal rules and by-laws and further resolved that the President should make arrangements and incur expenditure in relation thereto. On 9th December I960 the President addressed a letter to Shri H.K. Somani Assistant Sanitary Inspector of the Municipality in which he authorized that officer to file complaints against the respondent and the respondents in 17 other appeals for breach of the aforesaid rules and by-laws. Armed with this authority Shri Somani filed the complaint Ex. 1 in appeal No. 400 of 1961, in which he complained that the respondent had since 1st July 1960 continued to sell fruits and vegetables by hand lorry within municipal limits aforesaid without having obtained any permit or licence from the Municipality as per the rules and that inspite of a notice he had committed a willful breach of those rules and by-laws by selling fruits and vegetables. This complaint was filed in the Court of the learned Judicial Magistrate First Class Dwarka. In the course of the hearing of this complaint two substantial points were raised on behalf of the defence. The Municipality led evidence to show that the respondent had carried on the business of hawking in vegetables and fruits without obtaining a licence and without payment of the fee required under rule No. 2. The respondent contended that he had paid a sum of Rs. 3-12-0 after 1st July 1960 but did not contend that he had taken out the licence or permit as required by law No. 1. The evidence led by the Municipality showed that the respondent had not made any such payment. The respondent did not lead any evidence in the case to prove that he had made the payment of Rs. 3-12-0. He did not file any receipt evidencing such payment to the Municipality. Therefore on the prosecution evidence there is no doubt that the respondent did not take out a licence as required by by-law No. 1 and that he did not pay the licence fee as required by rule No. 2. Though the complaint contains a statement at the top that the respondent had committed a breach of the rules and the by-laws it is quite clear from the contents thereof that the only gravamen of the Municipality was that respondent had carried on the business of hawking without having obtained a permit or licence from the Municipality and therefore the offence which was alleged against the respondent was the offence under by-law No. 4. At the top of the complaint it was mentioned that the charge was under by-law No. 4 read with by-law No. 1 It is true that at the top it was also mentioned that the charge was also under by-law No. 4 read with rule No. 2. But having regard to the language of by-law No. 4 there is no doubt whatsoever that the charge was only that the respondent had carried on the business of hawking without obtaining the necessary permit and there was no question of any breach of rule No. 2 The question of payment of licence or permit fee would arise only if an application for licence or permit is made and the payment of the licence fee would he insisted upon by the Municipality only after such application is made and before the necessary permit or licence is granted. Therefore the question which arose for determination in the learned Magistrates Court was whether the respondent had carried on the business of hawking without obtaining the necessary permit or licence. As already stated there was prosecution evidence to that effect and it was not the contention of the respondent that he had obtained a licence or a permit. But though this was the charge which was preferred in the complaint at the time of the first examination of the respondent the learned Magistrate did not ask any question to the respondent about his failure to have obtained a licence or a permit. Instead the learned Magistrate only put questions about the non-payment of the licence fee.
2. In that view of the matter there is a defect in the way in which the case has been conducted in the trial Court. But from the evidence as a whole the arguments advanced and from the judgment of the learned Magistrate it does appear that the defence understood that the charge which it had to meet was that the business of hawking vegetables and fruits was conducted without the necessary permit and licence and therefore the fact that in the examination the aforesaid the question was restricted only to the non-payment of licence fee and no reference was made to the failure to take out a licence or a permit does not appear to have caused any prejudice to the respondent. This also follows from the contentions raised on behalf of the respondent in the trial Court The contentions were two in number. The first contention was that the rules and by-laws were not valid at law and the second contention was that Shri Somani was incompetent to file the present complaint. The learned Magistrate considered both these points and upheld them. He held that the rules and by-laws were not valid on three grounds. The first ground was that previous sanction of the competent authority had not been obtained before passing the by-laws. The second ground was that one months notice had not been given after publication of the rules as required by Section 62 of the Act and the third was that Section 46 did not authorize the Municipality to frame a bylaw for inflicting penalty for breach of rules and by-laws. It was held that this bylaw No. 4 was inconsistent with the other provisions of the Act for collection of taxes. As regards the second point the learned Magistrate held that the President was not empowered to authorize the Assistant Sanitary Inspector to file a complaint that the President himself was also not authorized to do the same and that in any case the President was not authorized to delegate the power to prosecute to Shri Somani. On these two grounds the learned Magistrate acquitted the respondent. The respondents in the other appeals opposed the prosecution on the same two grounds. The learned Magistrate however acquitted all the respondents in those appeals only on the finding that Shri Somani was not competent to file the complaint. He did not record any finding on the question of the validity of. the rules and bylaws. He also further observed that there were not sufficient materials on the record of those other cases which would Justify a finding that the by-laws and the rules were invalid. However learned Assistant Government Pleader appearing on behalf of the State conceded before us that if the finding of this Court was that the by-laws or the rules in question were invalid then he would not press for conviction in the other cases. Mr. Joshi who appears on behalf of the Municipality in some of the appeals did not take any objection to this line of approach. Therefore the main questions which were argued in this Court were the same two questions which were decided in the case from which appeal No. 400 of 1961 arises. We will mention presently the several ramifications of the arguments and submissions which were made on the two points. The learned Advocates did not confine their arguments only to those sections or points which were relied upon in the trial Court but argued the matter by reference to different sections and different aspects of the same matter.
3. Now as regards the rules and the by-laws it is first necessary to state that in order to decide the question about the validity of these rules and by-laws we must discuss them separately because the provisions relating to rules are quite different from the provisions relating to by-laws. The question appears to have been argued and decided in the trial Court on the basis as if the rules and the by-laws were governed by the same set of sections. Probably this approach was undertaken in the trial Court because the Municipality itself framed the rules and the by-laws by one and the same resolution and adopted one and the same procedure in respect of both. The result of this as we shall presently show has been that the Municipality has fallen into a pit-fall so far as the framing of the rules is concerned. We shall first of all mention the various resolutions by which the rules and the by-laws were framed by the Municipality and thereafter consider the question as to whether these rules and by-laws are valid or not by discussing separately the validity of the by-laws.
4. On 2nd August 1955 at an adjourned meeting the Municipality unanimously resolved that the draft for rules and by-laws as prepared by it earlier was selected and that the same should be published in the interest of the public. Accordingly notices were published on the Office Board of the Municipality at a place called Garbi Chawk and at the office of the Mamlatdar Okhamandal. The notices invited objections in writing within one month from the date of the publication and further stated that if no objections were received in time the Municipality would take necessary steps to obtain sanction for the draft rules and by-laws. No objections were received by the Municipality from anyone. Then at an adjourned meeting on 3rd October 1955 the Municipality took into consideration the rules and by-laws and resolved that the draft be transmitted for sanction meaning thereby the sanction of the Director of Local Authorities who at the relevant time had the power to grant sanction for rules and by-laws. The original sanction granted by the Director of Local Authorities is not on the record. But from Ex. 24 it appears that that authority granted sanction both for the by-laws and the rules on 4th January 1956. After the grant of this sanction a meeting of the Municipality was called on 9th January 1956 for passing the rules and the by-laws and on that date the Municipality by its resolution No. 163 resolved to pass those rules and by-laws and further decided that they should be put into force with effect from 15th January 1956.
4. Now far as the by-laws are concerned the objection that was raised in this Court was that the sanction that was granted by the Director of Local Authorities on 4th January 1956 was not effective on the ground that it was not a previous but only a subsequent sanction. The argument was that under Section 48 of the Act the sanction required was a previous sanction and therefore sanction should have been obtained by the Municipality before it published the draft on 2nd August 1955. To understand this contention it is necessary to reproduce the relevant part of Section 48 which is as follows:
Every Municipality may from time to lime with the previous sanction in the case of City Municipalities of the State Government or in other cases of the Commissioner make alter or rescind by-laws but not so as to render them inconsistent with this Act.
Then follows a number of clauses in which the subjects on which the by laws could be framed have been mentioned. The clauses which are relevant for the purposes of the present case are Clauses (v) and (w) which are as follows:
(v) prescribing the conditions on or subject to which licences may be granted refused suspended or withdrawn for hawking or exposing for sale in any public place or street any article whatsoever whether it be for human consumption or not;
(w) generally for the regulation of all matters relating to municipal administration.
Then comes a paragraph which is as follows:
And every Municipality may with the like sanction prescribe a fine not exceeding five hundred rupees for the infringement of any such by-law.
Then there is Sub-section (la) which is not relevant for the purposes of these appeals. Sub-sections (2) and (3) are relevant and deserve to be quoted in full. They are as follows:
(2) Every Municipality shall before making any by-law under this section publish in such manner as shall in their opinion be sufficient for the information of the persons likely to be affected thereby a draft of the proposed by-law together with a notice specifying a date on or after which the draft will be taken into consideration, and shall before making the by-law receive and consider any objection or suggestion with respect to the draft which may be made in writing by any person before the date so specified.
(3) When any by-law made by a Municipality is submitted to the Central Government State Government or Commissioner for sanction a copy of the notice published as aforesaid and of every objection or suggestion so made shall be submitted for the information of the Central Government State Government or Commissioner along with the said by-law.
5. Now from these sub-sections it is suite clear that the power of the Municipality to make by-law is subject to the condition that it shall obtain the previous sanction of the commissioner. It is not disputed that the Dwarka Municipality is not a City Municipality as defined in the Act but is a District Municipality. Therefore it is not disputed that the sanctioning authority Was not the State (Government but the Commissioner and as we have already mentioned there is no dispute that at the relevant time the powers of the Commissioner were vested in an officer called the Director of Local Authorities. Now reading Sub-sections (1) and (2) together there is no doubt whatsoever that the previous sanction of the authority is to be obtained before the by-laws are made and the submission of the defence can be right only if the by-laws were made on 2nd August 1955. Prom Sub-section (2) it is quite clear that the Legislature has contemplated the stage of the preparation of a draft before the making of the by-laws. It is only after the Municipality has prepared a draft that the question of taking the previous sanction of the authority can arise. Before the authority can grant sanction the authority must know what the proposed by-laws are. In the absence of any such document the authority would not be in a position to say what by-laws have got to be sanctioned. Now from the various resolutions, which we have enumerated above we have no doubt whatsoever that what was done on 2 August 1955 was that only a draft was selected. The resolution says so in specific terms. The by-laws were not passed on that particular day. Therefore the by-laws cannot be said to have been made on that date. Subsection (3) further enjoins on the Municipality certain duties before making an application for previous sanction of the competent authority. It says that the Municipality shall publish the draft of the proposed by-law. It further casts a duty upon the Municipality to publish a notice specifying the date on or after which the draft will be taken into consideration, it also casts a duty to receive and consider objections or suggestions which may be made in writing by any person within the time so specified. All these preliminary steps have got to be taken by the Municipality before sanction of the authority is sought and it is only after these preliminary steps have been taken that the authority concerned can grant sanction and the by-laws are to be made after such a sanction has been obtained. Therefore we have no doubt whatsoever that all the steps which were taken by the Municipality before the competent authority sanctioned the draft by-laws on 4th January 1958 were the steps which the law directed the Municipality to take before making an application for sanction. Therefore the correct position is that the draft was prepared on the 2nd August 1955 it was published on 6th August 1955 the objections were considered on the 3rd of October 1955 and thereafter sanction was obtained on the 4th January 1956. There is no doubt that till this stage the by-laws were in the draft stage and they were not made by the Municipality. The by-laws came to be made only after the Municipality passed the resolution on the 9th of January 1956 Therefore having regard to the provisions contained in Sub-section (1) and (2) there is no doubt whatsoever that the procedure which was required to be followed by these two sub-sections was followed in the preparation and the making of the bylaws aforesaid. But the argument of the defence was based upon the language used in Sub-section (3). In Sub-section (3) it is stated that when any by-law made by a Municipality is submitted to the authority concerned for sanction a copy of the notice published as directed in Sub-section (2) and every objection or suggestion so made shall be submitted for the information of the authority concerned. The contention was that this sub-section contemplates the submission of the papers for sanction after the by-laws were made and therefore it was contended that after the by-laws had been made a second or subsequent sanction was necessary.
6. Therefore the argument was that after the by-laws were made on the 9th January 1956 it was necessary for the Municipality to obtain the sanction of the competent authority after that date. We cannot agree. There is no doubt that the language which is used in Sub-section (3) is inappropriate. The difficulty arises because of the use of the word made in the expression any bylaw made by a Municipality. But if we read Sub-section (3) as a whole and along with Sub-section (2) to which it makes a reference there cannot be any doubt whatsoever that the Legislature does not provide in Sub-section (3) for a second sanction but only provides that certain papers should be submitted to the sanctioning authority when applying for the previous sanction referred to in Sub-section (1). This is quite clear from the fact that in Sub-section (3) what the Legislature directs the Municipality to do is to send a copy of the notice and of every objection or suggestion referred to in Sub-section (2) and there cannot be any doubt that the stage with which the Sub-section (2) deals with is the stage of draft of the by-laws. Under the circumstances in our judgment the verb made used in Sub-section (3) is inappropriate The correct phraseology is any by-law proposed to be made by a Municipality or any draft of the by-law made by a Municipality. Sub-section (3) is not designed to provide for any sanction at all. That sub-section is designed for the purpose of providing the requirements which are to be undergone before the previous sanction mentioned in Sub-section (1) is obtained. In our judgment therefore the correct interpretation of Section 48 of the Act is not that previous sanction is to be obtained in respect of the draft and a subsequent sanction is to be obtained after the draft is made into a by-law. But the correct interpretation of the section as a whole is that first a draft is to be made and selected by the Municipality and after undergoing the procedure laid down in Sub-section (2) sanction of the competent authority is to be obtained and thereafter the Municipality is to pass a resolution accepting the draft so sanctioned and when this event takes place the by-law is said to be made with the necessary previous sanction as provided for in Section 48 of the Act. This view is supported by the decision reported in Emperor v. Shirinbai Sorabji Nagpurwala A.I.R. 1941 Bombay 66 in which it was held that after a draft was sanctioned by the competent authority a by-law cannot be said to have been made but it was necessary for the Municipality thereafter to pass a resolution accepting the sanctioned draft which would be converted into a by-law of the Municipality. Mr. Vakharia the Learned Counsel for the respondent however placed reliance upon the case of Jethmal and Ors. v. State of Rajasthan and Ors. reported in . In this case Their Lordships were called upon to interpret Section 64(1) of the Rajasthan Panchayat Act (21 of 1953). It was held in this case that two sanctions were necessary one a previous and the other a subsequent sanction before the tax in question was imposed. But there is a vital difference between Section 64 Sub-section (1) aforesaid and Section 48 which we have to interpret. The tax which was selected in that particular case was the tax referred to in Clause (j) of Section 64 and that clause provided that if the tax did not happen to be any of the taxes provided by Clauses (a) to (i) then before selecting that other tax previous sanction of the State Government was necessary. What was done in that case was that the panchayat passed a resolution on the 8th of October 1956 in which they said that they proposed to impose a tax on the import of wood. Then they published the necessary notification and the panchayat took up the matter again on the 22nd of November 1956 and decided to impose the tax which they had proposed in the meeting of the 8th of October 1956. This proposal was sanctioned by the Government on 11th of July 1957 Therefore it is quite clear that when the sanction was given the Government only granted previous sanction for the selection of the other tax referred to in Clause (j). But Section 64 also stated like Section 48 that if a tax was to be imposed under that section by a municipality then previous sanction of the State government was necessary. It was this second previous sanction which was lacking in that case. It is true that there are certain observations made in that case which go to show that two sanctions were necessary even when a tax happened to be imposed under any of the Clauses (a) to (i). But we have no doubt whatsoever that those observations are obiter and were not necessary for decision of the case Their Lordships have definitely pointed out in one of the paragraphs at page 77 that whatever might be said as to the imposition of tax from Clauses (a) to (i) so far as a tax included in Clause (j) was concerned the procedure of the double sanction was absolutely essential. They have also pointed out in another paragraph at page 76 that where the imposition of a tax was required to be after obtaining the sanction of the government what was required was that after the necessary procedure had been followed by the body imposing the tax the final proposal was to be sent to the government for sanction. Where however previous sanction was required for the imposition of a tax the matter had to be submitted to Government twice for sanction. Therefore this authority is distinguishable from the facts of the present case on the ground that Section 64 Sub-section (1) of the Panchayat Act definitely enacted that in the case of the selection of the other kind of tax a previous sanction was necessary and a previous sanction also was necessary for the imposition of the tax. That decision was arrived at on the language of Section 64 and cannot be regarded to be an authority for interpretation of Section 48 of the Act. Under the circumstances we have no doubt whatsoever that before the Municipality enacted the by-laws they had obtained the previous sanction of the competent authority and the by-laws cannot be said to be invalid on the ground of want of a second previous sanction. We may mention that after the whole matter was discussed in the light of Sub-sections (1), (2) and (3) of Section 48 and in the light of the decision in Emperor v. Shirinbai Sorabji Nagpurwala reported in A.I.R. 1941 Bombay 66 Mr. Hathi who was interested in arguing this point because of his appeal which is to be taken up immediately after this group is over fairly conceded that the by-laws in question could not be challenged on the ground of want of previous sanction. The learned Magistrate has held that the by-laws are invalid on the ground that the procedure which is prescribed in Section 62 of the Act was not undergone Now Section 62 does not deal with a by-law at all. That section deals with the farming of a rule in respect of a tax and consequently there is no doubt that that section is not at all applicable for considering the validity of the by-laws. The learned Magistrate has also mentioned Section 46 in connection with by-law No. 4 but Section 46 also has no application because that section does not deal with a by-law at all. That section only deals with framing of rules. Under the circumstances in our judgment the finding of the learned Magistrate that the by-laws were invalid is not justified and the by-laws cannot be held to be invalid for want of previous sanction.
7. Now so far as the rules are concerned tine matter would be governed by Section 46 of the Act. The relevant part of Section 46 is as follows:
Every Municipality shall as soon as conveniently may be after the constitution there of make and may from time to time alter or rescind rules but not so as to render them inconsistent with this Act.
Then follows a number of subjects on which rules can be framed. According to this section therefore the Municipality is competent to frame rules. Unlike Section 48 this section does not require previous sanction of the Government for the making of the rules. But there is a proviso to this section which is relevant and that proviso is proviso (a) which enacts that no rule made or alteration or rescission of a rule made under the section shall have effect unless and until it has been approved in the case of City Municipalities by the State government or in other cases by the Commissioner. Therefore so far as this proviso is concerned it definitely lays down that the subsequent approval of the competent authority is necessary in order to make the rules effective. In the absence of this subsequent approval the rule remains a dead letter and will not be infused with life. Having regard to the various steps which the Municipality took and which we have mentioned above jointly with the making of the by-laws it is quite clear that the rules were also made only on the 9 of January 1956. Till that date the rules were also in the stage of the draft and there was no definite resolution of the Municipality before that date making a rule. All that the Municipality did before that stage was to select a draft and to publish the same. It was not necessary under Section 46 of the Act for the Municipality to undertake these steps in so far as they related to the making of the rules. The rules are challenged by the defence on the ground that after 9th of January 1956 the rules were not approved by the competent authority as required by the proviso (a). So far as the record of the case goes there is nothing to show that the rules mentioned above were submitted by the Municipality after 9th of January 1956 for sanction of the competent authority. Therefore the rules cannot be said to have been effective even though they were passed at the meeting of the 9th of January 1956. But the contentions of Mr. Joshi and the learned Government Pleader were that we must presume that the sanction was so obtained and that the mere fact that there is nothing on the record on this subject cannot necessarily mean that the sanction was not obtained in respect of the rules. In this connection the learned Assistant Government Pleader drew our attention to the fact as to how the rules and the by-laws were challenged in the trial Court. It was contended that after the prosecution case was over the defence led evidence by examination of the secretary of the Municipality to produce on the record the various resolutions beginning from 2 August 1955 to 9th January 1956 which we have referred to above. It was contended that not only no attempt was made to bring on record any resolution which may have been passed after 9th of January 1956 but no question was even asked to the secretary as to whether any sanction was obtained in respect of the rules. It was also further urged that the rules were not challenged on the ground of want of subsequent approval in the trial Court. We have given our best consideration to these arguments of Mr. Joshi and the learned Assistant Government Pleader. We gave an opportunity to Mr. Joshi to show to us whether any sanction was given to the aforesaid rules by the Government. He was unable to show to us that any such sanction was obtained. If he had shown to us any such record in the possession of the Municipality then we would have certainly either taken additional evidence ourselves or we would have remanded the case for taking further evidence on the subject. The question about the validity of the aforesaid rules and by-laws was prominently raised in the trial Court and in our judgment the prosecution had sufficient notice that the rules and by-laws were being challenged on the ground that the provisions of Sections 46 and 48 had not been complied with. Section 46 was prominently mentioned in the trial Court as one of the sections which had been offended and that section has been referred to by the learned Magistrate in his judgment. Under the circumstances in our judgment the record does not justify the raising of a presumption in favour of the Municipality that the rules had been subsequently approved by the competent authority. We cannot raise the presumption in the present case because it is obvious to us from the way in which the bylaws and the rules have been both treated as one entity by the Municipality that the Municipality thought that the same procedure was applicable for the rules as the procedure prescribed for the by-laws. Under the circumstances in our judgment the Rules 1 and 2 are ineffective for the reason that the Municipality did not obtain the subsequent approval of the competent authority. The result of this finding would be that the Municipality was incompetent to levy the fees from the respondent as provided for in Rule (2).
8. It was urged in the trial Court that Section 46 of the Act did not authorize the Municipality to frame a by-law to inflict a penalty for breach of a rule. This submission was based upon the decision of the Bombay High Court in the case of Vishnu Shanker Vasantram v. Emperor reported in 39 Bombay Law Reporter 89. However in our view this question does not arise for decision in the present case at all. The complaint was filed not for the breach of any rule but breach of by-law No. 1. The last paragraph in Sub-section (1) of Section 48 confers a power upon the Municipality to frame a by-law for inflicting a penalty for breach of a by-law. It is true that in the present proceedings reference has been made to the rules framed under Section 46 but the reference was only in so far as rule No. 2 was referred to in by-law No. 2. So far as we can see the present proceedings have been undertaken only with a view to punish the respondent under by-law No. 4 and that by-law provides for punishment of a person who commits a breach of the other by-laws. It does not make any provision for punishment of any person for breach of any rule. Under the circumstances in our judgment no question of the power of the Municipality to frame a by-law for punishment of a breach of any rule arises at all.
However the contention of the learned Assistant Government Pleader and Mr. Joshi was that though the rules might be ineffective those rules did not in any way come in the way of establishment of the offence under by-law No. 4 and that though the Municipality might be precluded from collecting the fees under by-law No. 2 that would not exonerate the respondent from obtaining the licence as provided for in by-law No. 1. The argument was as follows. By-law No. 1 requires a licence to be taken out. By-law No. 4 punishes a person who does not take out a licence and carries on the business of hawking in vegetables and fruits. Therefore it was contended that the moment it was admitted by the other side or that there was proof that the business of hawking was carried on a breach of the by-law No. 1 was committed and the respondent rendered himself liable to be punished under by-law No. 4. It was contended that it was not the case of the respondent that be had made an application for obtaining a licence and that the same had been refused on the ground that the respondent was not willing to pay the licence fee. It was urged that even if such was the case even then the respondent would not be exonerated because if that part of the direction which was given to the secretary to grant a licence only after collecting the fees specified in rule No 2 was invalid even so the respondent was bound not to carry on the business of hawking unless the licence was first obtained. If the respondent wanted to carry on the business he could have paid the licence fee under protest and subsequently he could have taken steps for recovering the same or in the alternative the respondent could have started proceedings against the secretary for compelling him to grant a licence without payment of the fees. The answer of the defence to this line of reasoning was that the invalidity of rule No. 2 affected the validity of by-law No. 2 and as a consequence all the by-laws were so affected that they must be held to be invalid on account of the invalidity of rule No. 2. Therefore the question for consideration is whether the invalidity of the direction given in rule No. 2 to the secretary affects either the validity of by-law No. 2 and as a consequence the validity of the other by-laws. Now on this subject the following passage from Crawfords Interpretation of Laws and Statutory Construction at page 216 on which Mr. Vakharia relies is instructive:
Simply because a statute happens to be unconstitutional or invalid in pan it does not necessarily mean that the part which is not invalid must also fail not even though the statute be penal. It is only where the valid parts are so clearly dependent upon and so inseparably connected with the invalid parts that they cannot be separated without defeating the object of the statute that they too must fall with those parts which are invalid.... In determining separability the test is whether the legislature has manifested an intention to deal with a part of the subject matter covered irrespective of the rest of the subject matter; if such an intention is manifest the subject matter is separable. If the valid parts are complete in themselves and independent of the invalid parts and capable of being executed according to the intention of the legislature they must be sustained by the court notwithstanding partial invalidity. The invalid parts however may be dropped only where the part which is retained is fully operative as a law. And where the invalid and the valid parts are interdependent and essentially and inseparably connected in substance there is a strong presumption that the legislature would not have enacted one part without the other and the entire statute will fall. A similar result will occur where all the provisions of an Act are connected as parts of a single scheme. In such a case if the main object or purpose is invalid those provisions which are incidental will also fall. But in any instance there is a presumption that the legislature intended for the Statute or Act to be effective in its entirety unless something in the act indicates to the contrary.
Reference was also made in this connection to the decision of Their Lordships of the Supreme Court in R.M.D. Chamarbaugwalla and Anr. v. Union of India and Anr. reported in Article 1. Rule 1957 Supreme Court 628 where similar principles were laid down by Their Lordships. In our judgment if the tests laid down by the author are applied to the facts of the present case then it is quite clear that the invalidity of the above part of by-law No. 2 does not in any way affect the validity of the other by-laws. In the first instance we have no doubt whatsoever that the valid and the invalid provisions in by-law No. 2 are distinctly separable. By-law No. 2 casts a duty upon the secretary to grant a licence. It also casts a duty upon the secretary to collect the licence fee. If the imposition of the licence fee is found to be invalid then it is quite clear that the secretary in law is precluded from recovering the fees. But there is nothing in the by-law to suggest that inspite of the invalidity of the direction for collection of fees the secretary was not bound to grant the licence. The duty of the secretary to grant the licence will be there even if in law he was precluded from collecting the illegal fees. The second test which has been laid down by the author is to determine as to what the probable intention of the authority would have been if it had known that it was not competent to collect the licence fee. New in our judgment there is no doubt whatsoever about the object of the by-laws. The bylaws were not enacted primarily for the purpose of collecting licence fees. That was only an incidental object or provision in the bylaw. It was most probably enacted with a view to meet the expenses in connection with the administration of the rules and the by-laws. But the main object of the Municipality in enacting the by-laws was to protect the health and the hygiene of the city and its citizens and that is quite clear from the fact that in by-law No. 3 the Municipality has distinctly provided as to what shall not be done by the hawkers in the interests of the general hygiene and protection of the health of the citizens. This was a more important object for the Municipality to achieve than mere collection of the fees. Therefore even if the Municipality had come to know that it was not competent to collect the licence fees in our judgment the Municipality would have under the circumstances of the case insisted upon a licence being taken out in order that the Municipality might enforce the conditions which they had laid down in by-law No. 3. For the same reasons it cannot be stated that the scheme of the bylaws is such that the valid provisions cannot be given effect to if a part of bylaw No. 2 is found to be invalid. It also cannot be stated that the valid parts of the by-laws cannot be fully operative as a law in the absence of the invalid part of the by-law. The only effect of the omission of the invalid part of the by-law would be that the Municipality would not be able to collect the licence fees. But all the same the Municipality would be able to enforce the conditions mentioned in by-law No. 3 and would be able to punish any person who hawks without obtaining a licence or commits a breach of any of the conditions mentioned in by-law No. 3 For the same reasons we also cannot hold that the valid and the invalid parts are so interdependent and inseparably connected with each other that there should be a strong presumption that the Legislature would not have enacted one part without the other. Therefore we cannot uphold the contention that the result of the invalidity of the direction given to the secretary in by-law No. 2 is that all the by-laws become inoperative and ineffective. Under the circumstances in our judgment by-laws Nos. 1 and 4 with which we are concerned in the present appeal ate valid by-laws and inasmuch as the respondent carried on the business of hawking without obtaining the necessary licence the respondent can be said to have committed the breach of by-law No. 1 and rendered himself punishable under by-law No. 4.
9. Mr. Vakharia raised one more point and that was that though the resolutions aforesaid said that rules and by-laws were being framed and the document which embodies the rules and by-laws stated that they were rules and by-laws in effect what the Municipality had enacted were only rules and not by-laws. This argument of Mr. Vakharia was based on the submission that in Ex. 16 which reproduces the rules and by-laws only Section 46 of the Act is referred to and there is no reference to Section 48 of the Act. In our judgment the mere fact that Section 48 is omitted would not deprive the by-laws of their character as by-laws. In deciding this question we must also bear in mind the contents of what are described as rules and by-laws. The document itself makes a distinction between rules and by-laws and describes paragraphs 1 and 2 as rules and the subsequent paragraphs 1 to 5 as by-laws. Prom the point of view of the subject-matter also it is quite clear that the matter dealt with by Rules 1 and 2 was the same as was mentioned in Section 46 and the matters dealt with by by-laws Nos. 1 to 5 dealt with the matters referred to in Clause (v) of Section 48 of the Act. In our judgment therefore the Municipality did not attempt to enact rules simpliciter but attempted to deal conjointly with both rules and bylaws. Mr. Vakharia further contended that it was illegal for the Municipality to deal with the rules and the by-laws by one and the same procedure. He contended that the Municipality was bound in law to deal separately with rules and bylaws. Mr. Vakharia however was not able to point out any provision in the Act itself or any authority in support of this contention. There is nothing so far as we can see in the Act which requires that the Municipality cannot conjointly deal with both these matters. It is true that if the matters are rules then the Municipality must comply with the provisions relating to rules and if they are by-laws it must comply with the provisions relating to by-laws. If there is any Difficulty found on this score then the Municipality must suffer for the same. But there is no reason or principle as to why the Municipality cannot deal conjointly with both the matters.
There was one more contention which Mr. Vakharia wanted to urge and which has been dealt with by the learned Magistrate and that was that even if the rules were effective in the sense that subsequent approval had been given by the competent authority even then the rules were invalid because the procedure prescribed in Chapter VII of the Act had not been undergone. The submission was based on the ground that the rule No. 2 fell within the purview of sec46 Clause (1). On the other hand, the contention of Mr. Joshi and the learned Assistant Government Pleader was that rule No. 2 did not fall under Section 46 Clause (1) but fell under Section 70 of the Act. The contention was that when the matter fell under the latter section the procedure which is prescribed by Chapter VII and specially by Section 60 61 and 62 was not necessary to be undergone. It is not necessary to decide this question in view of our finding that the rule is ineffective on the ground that the subsequent approval of the Government was not obtained. If and when such subsequent approval is obtained it is open to the respondent to challenge the rule on the ground that it was invalid because the provisions of Section 60 6 and 62 had not been complied with.
That brings us to the second point raised in the trial Court about the competency of Mr. H.K. Somani to file the complaint. The decision of this question depends upon the interpretation of Sub-section (1) of Section 161 of the Act which is as follows:
The Municipality may direct any prosecution for any public nuisance whatever and may order proceedings to be taken for the recovery of any penalties and for the punishment of any persons offending against the provisions of this Act or of any by-law thereunder and may order the expenses of such prosecutions or other proceedings to be paid out of the municipal fund:
Provided that no prosecution for an offence under this Act or any by-law framed thereunder shall be instituted except within six months next after the date of the commission of the offence or if such date is not known or the offence is a continuing one within six months next after the commission or the discovery of such offence.
Now the first proposition which was canvassed in our Court was as to who was the complainant. Having regard to the complaint there is no doubt whatsoever that the Municipality is not the complainant. It is true that in the title of the complaint it is mentioned that The Dwarka Municipality through its Assistant Sanitary Inspector Shri Hirjibhai Kalabhai of Dwarka. But the rest of the complaint does not leave any doubt that the complainant was H.K. Somani who described himself as the Sanitary Inspector Dwarka Municipality. If the Municipality was complainant it is not shown that Mr. Somani had the authority to sign for and on behalf of the Municipality. In addition to this it is further stated in the complaint that the complainant was amongst the witnesses. There is no doubt that the reference is to Ms. Somani as a witness and not to the Municipality. That the Municipality was not the complainant is also quite clear from the letter of the President which appears a Ex. 9. That letter is addressed to Mr. Somani the Assistant Sanitary Inspector of the Municipality and states that he was authorized to file the complaint. Therefore we have no doubt whatsoever that the complainant in the present case was not the Municipality but Mr. H.K. Somani. The contention of the defence was based upon this particular fact. It was contented that the true interpretation of Section 161 was that only a Municipality could lodge a complaint in respect of Municipal offences and that no person other than the Municipality concerned could be a complainant in respect of such offences. Elaborate arguments were advanced to us for and against this particular submission and at one time we were inclined to take the view that the section was permissive and did not preclude persons other than the Municipality from filing complaint in respect of municipal offences. But in the course of the arguments my learned brother pointed out a decision of the Bombay High Court exactly on the same subject which took a contrary view and we heard the arguments of the Learned Counsel on both the sides as to the effect of that ruling. The decision is In re Motilal Amaratlal Shah reported in 32 Bombay Law Reporter 1502. In this case one Motilal had refused to remove a weather-board after a notice was given to him by a Municipality to remove the same. The Municipality itself did not take any proceedings after such refusal. Thereupon one Shankerlal a neighbour of Motilal first filed a civil suit in the Civil Court and then filed a criminal complaint in the Court of the First Class Magistrate at Mehmadabad for an offence under Section 155 of the Bombay District Municipal Act 1901 Motilal then presented an application objecting to his being prosecuted at the instance of Shankerlal. That objection was overruled by the Magistrate on the ground that Section 161 was an enabling section and that it did not deprive any individual to launch a complaint or a Magistrate from taking cognizance thereof. Motilal came in revision to the Bombay High Court. The contention which was urged in support of the revision application was that having regard to the provisions contained in Section 161 of the Act it was not open to any person other than the Municipality concerned to launch a prosecution for a municipal offence. In delivering the judgment Their Lordships first observed that the law was clear that a private individual could file a complaint in respect of an offence under the general law inspite of the fact that the offence also happened to be an offence under a special law. After making this observation Their Lordships proceeded to state that where an act was not an offence under the general law but under a special law under which a certain public authority was invested with a definite duty and with a definite power in regard thereto the question was more doubtful. After making this observation. Their Lordships referred to Sections 68 231 471 and 517 of the City of Bombay Municipal Act and then referred to The Queen v. Cubitt (1889) 22 Q.B.D. 622 and some other authorities and then proceeded to decide the question in hand. The following are the relevant observations made for reaching the final decision.
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 case Section 161 expressly enact: 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.
10. The learned Assistant Government Pleader conceded that this decision was a direct authority for the proposition that no person other than the Municipality can launch a criminal prosecution in respect of a municipal offence. Mr. Joshi however very strenuously contended before us that this was not so. He relied upon the observations of Their Lordships at the commencement of the judgment in which they said that the question was more doubtful. It was therefore contended that the decision was based upon a doubt and in fact there was no decision on the subject at all. We cannot agree with this submission. It is true that Their Lordships began the judgment by stating that the matter was more doubtful but that was only at the commencement of the judgment for the purpose of emphasizing that the matter was not one which was free from doubt but aster having so stated Their Lordships examined some authorities on the subject and thereafter proceeded to lay down the principles on which they should act. They pointed out that it was clear to them that where a statute invested any public body or officer with the enforcement of any order and enacted that that body might institute prosecutions a provision of that type was unnecessary unless the Legislature contemplated that body to institute prosecutions. They also pointed out that a municipal body had also a right to prosecute along with the other citizens and such an express enactment was not necessary unless the right to prosecute was intended to be confined to the body mentioned in the enactment. It is after making these general considerations that Their Lordships mentioned the provision of Section 161 and expressly thereafter decided the point raised and said that the Legislature contemplated that the prosecution should be instituted by the Municipality alone and not by a private individual. Under the circumstances in our judgment this decision is a direct authority on the subject and is indistinguishable from the facts of the present case. A faint attempt was made by Mr. Joshi to contend that the decision was per incurium or insilentio. In our judgment the decision cannot be attacked on any of these two grounds. There is no doubt that Their Lordships were called upon to interpret and decide the question with reference to the provisions of Section 161 of the Act. In fact the contention that no person other than the Municipality can institute a proceeding in respect of a municipal offence was solely based upon the provisions of Section 161. Therefore it cannot be said that Their Lordships had not in view the provision of Section 161 at all. Nor can it be said that Their Lordships had ignored to be provisions of that section. Having failed in this attempt Mr. Joshi intended to canvass a larger proposition and he wanted to urge that a decision of the Bombay High Court even though recorded earlier than the 1st of May 1960 was not binding upon this Court. We precluded Mr. Joshi from arguing further on this point in view of the decision arrived at on 31st of October 1961 by A Special Bench of this Court in The State of Gujarat v. Shri Gordhandas Keshavji Gandhi and Ors. Criminal Appeal No. 381 of 1960 (1962 III G.L.R. 269. However though we are bound by the decision in the aforesaid case we may mention here some of the arguments which were advanced at the bar in opposition to the proposition laid down in the above case before the case was discovered by my learned brother and which arguments had appealed to us and which in our judgment would if necessary require the matter to be referred to a larger bench for consideration. We will presently mention the reasons as to why we are not making a reference in the present case although we have been impressed with some of the arguments advanced at the bar in opposition to the aforesaid proposition. In the first instance in our judgment in answering the question in hand it is desirable that attention must be first paid to the language of the Section 161 sought to be interpreted and not upon general considerations derived from other authorities which as we shall presently mention were distinguishable. The section as it stands is couched in permissive form. In Emperor v. Kassam Alibhai reported in 36 Bombay Law Reporter 965 Section 517 of the City of Bombay Municipal Act (Bom. III of 1888) quoted in Motilal's case came up for consideration. That section is in pari materia with Section 161. The language used in that section is almost the same as the language used in Section 161. A Division Bench of the Bombay High Court construed that section as permissive and this inspite of the fact that a reference was invited to Motilal's case. The proposition in Motilal's case that Section 161 had invested the Municipality with the enforcement of the municipal offences requires to be reexamined. The view appears to be based mainly upon the case of The Queen v. Cubitt (1889) 22 Q.B.D. 622. In that case it was held that the only persons who are entitled to prosecute for offences created by The Sea Fisheries Act 1883 were the sea-fishery officers appointed under the Act. This decision was based upon Section 11 of the Fisheries Act which was in a mandatory form. The same case was cited on Emperor v. Kassam Alibhai 36 Bombay Law Reporter 965 and Beaumont C.J. pointed out that the Sea Fisheries Act provided that the provisos of that Act should be enforced by certain officers and the Court had held that only those officers could enforce the provisions. He also held that that decision was not applicable to Section 517 of the City of Bombay Municipal Act of 1888 because that section was permissive in form. The second authority which is cited in Motilal's case is Bradlaugh v. Clarke (1883) 8 App. Cas. 354. That is a decision of the House of Lords. But this was not a case arising out of a prosecution. The case arose out of an action brought by one person to recover a penalty created by the Parliamentary Oaths Act 1866 (Section 5). It was held in that case that in order to enable a common informer to maintain an action for a penalty created by a statute an interest in the penalty must be given to him by express words or by sufficient implication. This case is not an authority for the proposition that a criminal prosecution cannot be launched by a person other than the person mentioned in the statute. Different considerations arise in the case of prosecutions from a case in which a suit is filed. It is well known that under the general law every person is entitled to file a criminal complaint in respect of an offense; whereas such is not the case when a person files a suit. Then we find that if Section 161 were to be interpreted to mean that only a municipality alone is entitled to file a criminal complaint then it does not fit in with that part of Section 161 which states that the Municipality may direct any prosecution for any public nuisance whatever. The learned advocates were not able to point out to us any provisions in the Act which provides for punishment of public nuisance. Reference was made only to Section 151. But that section does not provide for the punishment of a public nuisance but it provides for the failure to carry out instructions issued by the municipal authorities on the subject of a nuisance. But oven assuming that Section 151 deals with a public nuisance there is no doubt that the aforesaid part of Section 161 does not deal with only the so-called public nuisance mentioned in Section 151 but it deals with all kinds of public nuisances and this is made quite clear by the use of the word whatever in that subsection. In Emperor v. Kassam Alibhai 36 Bombay Law Reporter 965 Macklin J. whilst holding that Section 517 of the City of Bombay Municipal Act did not exclude the non-municipality from filing a complaint pointed out the same flaw which we have noticed above viz. that Section 517 authorized the Municipality to take proceedings in respect of public nuisances; whereas in Section 516 it was also provided that any person residing in the City of Bombay might complain to a Presidency Magistrate of the existence of any nuisance. Beaumont C J. in the same case also pointed out another reason for interpreting Section 517 of the Bombay Municipal Act in the above manner and that reason also in our judgment applies in interpretation of Section 161 of the Act. In City of Bombay Municipal Act Section 516 provided that any police officer might arrest any person who commits in his view any offence against the Act if the name and address of such person be unknown to him and if such person on demand declines to give his name and address; and Sub-section (2) provided that no person so arrested shall be detained in custody after his true name and address are ascertained or without the order of a Magistrate for any longer time not exceeding at the most forty hours from the arrest than is necessary for bringing him before a Magistrate competent to take cognizance of his offence. The same provision is to be found in Section 163 of the Act. Beaumont C.J. pointed out that if Section 517 aforesaid were to be interpreted to mean that a non-municipality including a police officer was not competent to file a complaint then it was difficult to see what the Magistrate was to do with a case which was brought before him under Section 516 In our judgment if Section 161 were to be interpreted in the manner contended for by the defence then the same difficulty would arise also as pointed out in Emperor v. Kassam Alibhai 36 Bombay Law Reporter 965. In support of its interpretation of Section 161 of the Act in Motilals case reported in 32 Bombay law Reporter 1502 reference was made also to other cases. One was the case of Chunilal Virchand v. The Ahmedabad Municipality reported in 13 Bombay Law Reporter 958. That case has nothing to do with the interpretation of Section 161. The principle which was laid down there was based upon Wolverhamptons case. In Chunilal Virchands case the question for consideration was whether an appeal lay to the High Court from order of the District Court under Clause 3 of Section 160 of the Bombay District Municipal Act (Bombay Act III of 1901). In holding that no such appeal lay Their Lordships proceeded on the principle that where a statute created a right not existing at common law and prescribed a particular remedy for its enforcement then that remedy alone must be followed. The principle is unassailable but as we have pointed out different considerations arise when dealing with the question of filing a prosecution in respect of an offence and in case of criminal offences it is well known that ordinarily every individual has got a right to initiate a criminal prosecution unless he is debarred from doing so by any statute and for considering a question of this kind the proper thing to do is to have regard to the language of Section 161 itself and to see whether there is anything in that section which debars a person other than the Municipality from instituting criminal prosecutions in respect of criminal offences. In other words the task is to find out whether the language used in Section 161 is disabling language debarring non-municipalities from filing complaints or whether it is an enabling provision intended to enable municipalities to start criminal prosecutions. It is not improbable that the Legislature thought it right to incorporate this provision in the statute book to obviate an argument that a corporation such as the Municipality was not entitled to institute criminal prosecutions unless the statute under which the corporation was formed authorized it to initiate criminal prosecutions. In this connection it is important to notice that Section 161 does not deal only with the power to prosecute but it also deals with the power to spend municipal funds for the conduct of the prosecutions. It may be that the Legislature thought that under the general law the Municipality cannot have spent any part of its fund for the purpose of prosecuting persons for municipal offences and therefore the Legislature thought it proper to confer in one and the same section the power both to prosecute and to incur expenditure from out of municipal funds in the conduct of such prosecutions The second case to which reference is made in - In re Motilal 32 Bombay Law Reporter 1502 is Ashutosh Ganguli v. Matson I.L.R. 53 Calcutta 929 In this case it was held that no prosecution could be instituted under Section 72 of the Provincial Insolvency Act unless the Insolvency Court sent the case under Sub-section (2) for trial to the nearest First Class Magistrate and a conviction on the complaint of a private person was bad in law. In holding this the Court relied upon Queen v. Cubitt (1889) 22 Q.B.D. 622 and one more case Anderson v. Hamlin (1890) 25 Q.B.D. 221 in which the judgment was also delivered by Lord Coleridge C.J. who delivered the judgment in Queen v. Cubitt. With great respect in our judgment the Calcutta High Court failed to notice the distinction between a civil suit and a criminal prosecution and also the distinction which was pointed out in Emperor v. Kassam Alibhai 36 Bombay Law reporter 965 to the effect that the language which was used in the Sea Fisheries Act was mandatory language which precluded non-sea fisher officer from enforcing the provisions of the Sea Fisheries Act.
11. We may mention that Mr. Hathi drew our attention to the proviso to Section 161 of the Act and said that if we were to take the view that any person other than the Municipality can file complaints in respect of matters dealt with by Section 161 then a strange situation would arise inasmuch as the persons acting under Section 161 would be bound to file their complaints within six months whereas persons not acting under that particular section would not be bound by any such period of limitation. This is a relevant argument and it will have to be evaluated along with the other points which we have mentioned above.
12. For the above reasons in our judgment when the proper occasion arises the judgment delivered in Motilals case may require to be considered by a larger Bench. But in the present cases though we have noticed the criticisms which can be validly urged against that case we are not disposed to refer the matter to a larger bench because in our judgment it is quite clear from the record that the complaints were filed in all these cases by Mr. Somani not in his individual capacity but for and on behalf of the Municipality and he purported to act not under the general law of the land which entitles any private individual to file a complaint but he purported to act under Section 161 of the Act and therefore the present complaints must stand or fall on the basis that they either comply or do not comply with the provisions of Section 161. In our judgment Motilals case does not necessarily decide that the Municipality alone must become the complainant in a prosecution for an offense under the Act. The observations made by their Lordships in that case in regard to this are obiter. The point which was raised and decided in that case was whether a private individual could file a complaint apart from the provisions contained in Section 161 of the Ace and all that was decided was that a private individual meaning thereby an individual in his private capacity could not do so. That does not necessarily mean that in all cases the municipality must figure as the complainant. Such a question did not arise in Motilals case. All that Motilals case decided was that in cases of municipal offences complaints could only be filed under Section 161 of the Act and not outside it. As we read Section 161 we do not find any justification for the view that the Municipality alone can be the complainant. All that the section requires is that in the case of public nuisances the Municipality may direct any prosecution and in respect of proceedings for recovery of any penalties and for the punishment of any persons offending against the provisions of any Act or any law the Municipality may order proceedings to be taken. Therefore though the Municipality has not been the complainant in ail these cases if the present complainant Mr. Somani can show as he must that the present proceedings were started by him under orders passed by the Municipality then the complaints would be valid. All throughout the proceedings Mr. Somani intended to represent and did claim to represent the Municipality Before he filed the complaints the Municipality passed resolutions. On the basis thereof the Municipal President addressed letters to him authorizing him to file the complaints. I here is also no doubt whatsoever that the expenses in connection with the present litigation were being incurred by the municipality and this could be done only if the municipality was acting under Section 161 of the Act. Under the circumstances in our judgment the present cases must stand or fall on the basis of the resolutions on which the prosecutions were initiated. Therefore the question for consideration in each case therefore is whether the municipality has or has not ordered proceedings to be taken against each of the accused. In the cases from which these appeals arise three resolutions of the municipality which are relevant for consideration have been brought on record. The learned Assistant Government Pleader states that although the copies show that there were two different resolutions on the 10th of August 1960 and 20th of August 1960 in effect there was only one resolution on the 20th of August 1960 and that the date given in the copies produced in some of the Appeals as 10th of August was a mistake. The learned Assistant Government Pleader seems to be right because the resolution number which is given for the resolutions which are dated 10th and 20th of August on the record is one and the same being resolution No. 39. The second resolution is dated 22nd of November 1960. The municipality relied upon these two resolutions as complying with the provisions of Section 161 of the Act. In our judgment if the municipality can establish that these two resolutions embodied orders for proceedings being taken for punishment of the respondents for committing breach of by-law No. 4 then there will be no bar under Section 161 of the Act. Before we consider some other arguments which were urged in this connection on behalf of the defence we would like first of all to consider whether the two resolutions aforesaid do or do not comply with the provisions of Section 161 of the Act. The first resolution is resolution No. 39 dated 20th of August 1960 In this resolution it was resolved by the municipality that the President was invested with all the powers of the municipality for making arrangements for filing complaints in respect of infringements of rules and by-laws of the municipality and it further resolved that the President should make arrangements and incur expenses in the matter thereof. Now the first argument which was advanced on behalf of the prosecution was that this resolution was itself an order for taking proceedings against the respondents within the meaning of Section 161 and therefore Section 161 was complied with. It was contended that once there was such an order then anybody could be the complainant and it was not necessary that either the municipality or the President or any other individual connected with the municipality should initiate the proceedings. In our judgment the former contention is not justified. It is true that the order must be liberally construed as being one which was passed by the municipality in execution of their municipal functions. But in our judgment in order that Section 161 may be complied with the resolution relied upon must partake of the character of an order and an order implies a command and requires the person ordered to comply with the same. In the above resolution in our judgment this ingredient is missing. The resolution does not order the President necessarily to start proceedings against the persons who have broken the rules and the by-laws. Even assuming that the contention of the prosecution is justified that in order that an order may be passed it is not necessary that a rule or a by-law must have been already broken and that the Municipality can make an order for prosecution in anticipation of a breach of a rule or a by-law the resolution in our judgment does not necessarily order the President to file prosecutions but gives a discretion to him in the matter and when such is the case it is quite clear to us that the Municipality has not itself made an order in respect of prosecution for breaches of municipal by-laws and rules but it has delegated its power under Section 37 of the Act to do so. In other words the power to make the order for prosecution conferred by the Act upon the Municipality has been delegated by this resolution to the Municipal President. Alternatively it was argued that if this was the correct interpretation of the resolution then the resolution had effectively conferred that power upon the President and consequently the order passed by the President empowering Mr. Somani to institute the proceedings would be the order as required by Section 161 of the Act. Mr. Vakharia on the other hand contended that this delegation was ineffective for the reason that the delegation was not made in accordance with the rules to be made by the Municipality under Section 46 of the Act.
13. Section 37 provides that any powers which may be exercised by or on behalf of the Municipality may be delegated in accordance with the rules to be made by the Municipality in that behalf to the President or to some other officers or bodies mentioned in the section. Therefore the argument was that in order that a delegation might be effective and valid it was necessary that the delegation must be made in accordance with the rules framed under Section 46 of the Act. This argument has appealed to the learned Magistrate and he has observed that there was nothing on the record to show that the rules regarding delegation of powers were made by the Municipality. Now the grievance of the learned Assistant Government Pleader was that in the course of the trial it had never been contended on behalf of the respondents that the delegation was not in accordance with the rules and therefore the aforesaid contention sprung a surprise upon the prosecution. It is not possible to say from the record as to at what stage the point was raised. It is true that there is no reference to this particular point pointedly at the stage of the evidence. But in our judgment the moment the defence raised the question of the incompetence of the prosecutor it was upto the prosecution to establish that Section 161 of the Act was complied with and in order to establish that point if the Municipality itself had not passed the order and if the order was passed by a person or authority other than the Municipality it was the duty of the prosecution to lead evidence to show that the person or the authority was legally authorized to pass the order under Section 161 of the Act This would include in the case of a delegation proof to the effect that the delegate was legally authorized by the proper authority and that the delegation was conferred in accordance with law. But even assuming that this was not in the mind of the prosecution at the time of the trial there cannot be any doubt whatsoever that the prosecution could not have been unmindful of this point at the time when the arguments were addressed to the learned Magistrate. At that stage even the prosecution could have either led evidence or shown in some legal way to the learned Magistrate about the existence of the rules and that those rules were complied with in passing the aforesaid resolution Even assuming that the prosecution did not realize the importance of this point till the judgment was delivered in any case when the appeal came to be filed before this Court the prosecution could have certainly taken measures for bringing it to the notice of this Court about the existence of the rules and that those rules were complied with. Neither in the memo of appeal filed by the Government or in the memo filed by the Municipality is there any contention to the effect that the rules were in existence and that they had been complied with. This appeal was argued for more than two days and the question about the compliance of the provisions of Section 37 was raised prominently. Even before the respondents learned advocate addressed us and until Saturday even after the dictation of the judgment was begun the learned advocates appearing on behalf of the prosecution did not know whether there were any such rules in existence or not. However whilst this judgment was being dictated it was mentioned to us that the Municipality had passed rules under Section 46 of the Act and that there was some provision in the rules providing for the delegation of municipal powers to certain individuals including the President. Our attention was drawn to some of these rules. But in our judgment it is now too late to consider the question as to whether those rules have or have not been complied with by the Municipality. For example in rule No. 43 shown to us it has been mentioned that no delegation shall be valid unless in the case of a delegation to an individual the resolution by which the delegation is made is supported by at least half the total number of councilors. Prom the copy of the extract from the book of resolutions it appears that the resolution dated 28th of August 1960 was passed unanimously and the resolution bears the signatures in all of eight persons including the President. It is not possible to determine on the record as it stands and without some more research as to what was the total number of councilors in the Municipality at the relevant time. Under the circumstance at this late stage unless further evidence is taken in the matter it is not possible to say whether rule No. 43 is or is not complied with. In our judgment inasmuch as the Municipality had not relied upon the resolution and inasmuch as the learned Magistrate had never been told that there were rules in existence and as it was the duty of the prosecution to prove that the order was passed by a properly authorized person it is not possible now to say with confidence that the copy of the resolution which has been brought on record was one which complied with the provisions of Section 37 of the Act. Alternatively the learned Assistant government Pleader contended that in any case even if we assume that the existence of the rules has not been proved in the case then the delegation was competent inasmuch as if there were no rules in existence a delegation was competent by the Municipality under Section 37. We cannot agree with this contention. In our judgment unless it is possible to say that the Municipality has a general power of delegation apart from Section 37 the delegation must necessarily be controlled by and comply with the provisions of Section 37 and in our judgment the expression in accordance with rules to be made by the Municipality in this behalf qualifies the power of delegation. In other words, if a delegation is to be valid under Section 37 there must be rules made by the Municipality and the delegation must comply with those rules. If the rules are not made by the Municipality then in that case delegation cannot be made under Section 37 of the Act. In our judgment any other view would lead to very undesirable results. Ordinarily a municipality being the creature of a statute must itself exercise its own powers and unless the statute authorizes the Municipality to do so it cannot transfer responsibility for exercising those powers to someone else. Now Section 37 enacts that the powers may be delegated to particular individuals. This appears to be one of the limitations imposed upon the power of delegation and secondly it says that the delegation must be in accordance with rules. Under Section 46 the rules require the approval of the Government or a competent authority. Therefore it is for the competent Government or the competent authority first to consider what shall be the procedure which shall be adopted before powers vested in the Municipality come to be delegated. In our judgment therefore a simple resolution passed by the Municipality apart from Section 37 cannot transfer any power of the Municipality to any delegate Under the circumstances in our judgment the record of the case does not justify the conclusion that the power of the Municipality under Section 161 was delegated to the Municipal President.
14. The second resolution which is on the record is dated 22nd of November 1960. This resolution is No. 68 and was passed by a majority two councilors voting against it and one councilor remaining neutral. By this resolution the Municipality resolved that the President shall take all proper measures for taking legal steps against the said hawkers and shall incur all the expenditure in connection therewith. The hawkers referred to are mentioned in the item on the agenda which appears in the column No. 1 and the item is described as follows: To do whatever is proper under managing committee resolution No. 8 dated 7th November 1960 as the hawkers of vegetables are not paying the licence fees since the month of July Apart from the other infirmities which we have mentioned in relation to the resolution dated 20th of August 1960 this resolution suffers from one more infirmity This resolution does not say in terms that the subject-matter which was considered or the power which was given was in relation to the breach of by-law No 1 i.e. in relation to the failure to take out a licence. On the contrary the express provision relating to the subject-matter mentions clearly the fact about the non-payment of the licence fee. Therefore this resolution does not necessarily mean that power was conferred upon the President to take proceedings for breach of by-law No. 1. As the resolution stands it mentions legal steps to be taken in relation to the non-payment of the licence fee Under the circumstances in our judgment there is no order so far as this resolution is concerned for taking proceedings for punishment of offenders of by-law No. 4 within the meaning of Section 161 of the Act. We may mention that resolution dated 20th of August 1960 covers 18 appeals and resolution dated 22nd of November 1960 covers five appeals being Nos. 490 606 607 608 and 609 of 1961. In view of our conclusion that the aforesaid two resolutions do not amount to orders under Section 161 and that the resolutions do not amount to a valid delegation of the power conferred upon the Municipality under Section 161 of the Act it is not necessary to consider whether the resolutions as they stand are invalid on certain other grounds urged by Mr. Vakharia such as that the resolutions did not themselves state the names of the persons against whom the proceedings were to be instituted or that the orders were passed in a general way for taking proceedings for breaches of all by-laws and rules.
For the aforesaid reasons we have come to the conclusion that the finding in all the appeals was correctly recorded that Mr. Somanis complaint did not comply with the provisions of Section 161 of the Act and therefore the prosecutions were incompetent. We have also come to the conclusion that the by-laws were valid except that the direction given in by-law No. 2 to the secretary to collect the fees under rule No. 2 was invalid on the ground that rule No. 2 itself was invalid on the ground that that rule had not received subsequent approval of the competent authority as required by the proviso (a) to Section 46 of the Act.
However in our judgment the order of acquittal passed by the learned Magistrate in respect of all these cases is not justified Having regard to his finding that the prosecutions were incompetent the learned Magistrate should have ordered that the accused persons should be discharged. The proper order was that the complaints should stand dismissed and not that the accused should be acquitted To that extent the orders in all the appeals will be modified. Subject to this all the appeals will stand dismissed.
All the appeals are dismissed subject to the above modification.