1. This rule has been issued to show cause why the conviction of the petitioner under Section 221, Sub-section (1), Clause (e) read with Sub-section (3), Assam Municipal Act (1 of 1923), and the sentence of a fine of Rs. 100 passed on him under that section should not be set aside on grounds 1, 2 and 3 of the petition. Ground 1 is to the effect that the trial Court had no jurisdiction to try the casa against the petitioner inasmuch as the complaint that was originally made and on the basis of which the case was started was not a complaint made against the petitioner, but was a complaint against the petitioner's gomastha, Gajananda Das and that the Deputy Commissioner had given his consent to the institution of proceedings against Gajananda Das and not against the petitioner. Ground 2 is much to the same effect as ground 1. Ground 3 purports to challenge the validity of the order or consent of the Municipal Board in respect of the prosecutions that is required by Section 318 of the Act.
2. The Health Officer of the Gauhati Municipality submitted a report to the Chairman of that Municipality in which it was stated that, on 8th March 1927, the said Health Officer has purchased a quantity of mustard oil from Gajananda Agarwalla of the Radha Krishna Oil Mill Company and that on examination of the said sample, in accordance with the provisions of the Act, it was discovered that the stuff was not genuine. By the said report the Health Officer asked that sanction might be accorded to a prosecution under Section 221 of the Act. It appears that the Chairman, on receipt of the said report, endorsed it over to the Vice-Chairman with the following remarks:
V.C. Please see whether prosecution will stand on these cases. Reports are contradictory as it appears to me.
3. The next endorsement is that of the Vice-Chairman who simply forwarded the papers to the Deputy Commissioner 'for favour of prosecution.' The Deputy Commissioner as far as can be made out from the papers that T have before me, returned the papers to the Vice-Chairman with a request to report whether a prosecution would stand. The Vice-Chairman, therefore, reported to the Deputy Commissioner that a prosecution would lie under the Assam Municipality Act, 1923. On that the Deputy Commissioner passed an order which ran in these words:
Prosecution sanctioned. Summons to accused under Section 221 of Act 1 of 1923. To Srijut T. Bhuyan, S.D.M., for disposal.
4. On the basis of this order that was passed by the Deputy Commissioner Gajananda Agarwalla, whose name appeared in the report that was originally made by the Health Officer as aforesaid, was put upon his trial before the aforesaid Sub-Deputy Magistrate. On the date fixed for the hearing of the case the said Gajananda Agarwalla did not appear and the petitioner being present in Court, and he apparently taking upon himself the responsibility of any transaction that might have been made by Gajananda and in respect of which the case was to go on, the Sub-Deputy Magistrate proceeded to try the petitioner for an offence under Section 221, Sub-section (1) read with Sub-section (3) of the Act and eventually convicted and sentenced him as already mentioned.
5. The validity of the proceedings against the petitioner has been challenged upon the grounds that are set out in the rule to which I have already referred. Shortly put, it is urged that the proceedings as against the petitioner were illegally started inasmuch as the sanction that had been given by the Deputy Commissioner was in respect of the prosecution, not of the petitioner, but o his gomastha, Gajananda Agarwalla, and that, in the absence of an order or consent of the Deputy Commissioner in respect of proceedings against the petitioner, the petitioner could not be lawfully tried. It has also been contended that, with regard to the other sanction that is required by law, namely, the order or consent of the Municipal Board, it is only the Chairman who is competent to grant it unless he has delegated his powers in that respect to the Vice-Chairman and that inasmuch as, in the present case, no such delegation has been prove}, the Vice-Chairman was not competent to order or give consent to the initiation of the prosecution.
6. So far as the first of these contentions is concerned, what has been said in the explanation that has been submitted to this Court by the learned Extra Assistant Commissioner is that the original complaint as disclosed in the report of the Health Officer was directed against all persons of the Radha Krishna Oil Mill who could be proceeded against for offences under Section 221 and, therefore, included the petitioner who, on the statement that he made in the course of the trial, is the owner or one of the owners of the Radha Krishna Oil Mill, and that the sanction that was accorded for the prosecution of Gajananda could be availed of for the purpose of the prosecution of the petitioner. Now. Section 221, Assam. Municipal Act (1 of 1923) makes punishable the doing of certain acts, and Sub-section (3) of that section says that any person' who contravenes any of the provisions of Sub-section (1) or Sub-section (2) shall be punished, etc. The present case is one in which it is alleged that Sub-section (1) of Section 221 has been contravened because the accused person, whoever he was, directly or indirectly, himself or by any other person on his behalf, sold or exposed for-sale mustard oil which is mentioned in Clause (e) of that sub-section. Section 224 says that no proceedings shall be instituted under Sections 220 to 223 Section 221 being, one of those sections without the order or consent of the Deputy Commissioner or the Sub-Divisional Magistrate. The law contemplates that, with regard to proceedings to be started in respect of matters coming within the purview of Sections 220 to 223, the Deputy Commissioner or the Sub-Divisional Officer will take into consideration the facts of each particular case and come to a conclusion as to whether proceedings should or should not be started. This necessarily involves that the attention of the officer who is toil give his order or consent to the institution of the proceedings should be directed to the person or persons against whom such proceedings are to be instituted. While I do not agree with the petitioner's contention that a general order or consent to proceedings under any of these sections against any person or persons who may be concerned in the acts may not be. made or given. I am of opinion that the-order that was actually passed in the present case by the Deputy Commissioner and the terms of the report on it was endorsed preclude the supposition that the Deputy Commissioner meant to do anything else than consenting to or ordering the prosecution of Gajananda Das. The fact that, in the report that was submitted by the Health Officer, Radha Krishna Oil Mill was mentioned is not sufficient to disclose that any offence was committed by the owner or owners of the Mills all that was said was Gajananda. Das had committed the offence and the order passed by the Deputy Commissioner cannot be read as authorizing the summoning of anybody else than Gajananda. Das. In my opinion it was not open to the trial Magistrate to attach the order for consent that had been previously obtained for the proceedings against Gajananda Das to the prosecution of anybody else. The first contention, therefore, is well founded.
7. Then, as regards the other contention of the petitioner, namely, as to the competency of the Vice-Chairman to sanction the prosecution of the petitioner, the position seems to be this : Under Section 318 of the Act no prosecution for an offence under the Act can be instituted without the consent of the Board. Under Section 29, the Chairman is authorized to exercise all the powers by the Act in the Board for the transaction of the business connected with the Act or for the purpose of making any order authorized thereby. Section 30 empowers the Chairman to delegate his powers in this respect by a written order to the Vice-Chairman subject to certain restrictions. There is a proviso to that section which says that nothing done by the Vice-Chairman which might have been done under the authority of a written order from the Chairman shall be invalid for want of defect of such written order if it be done with the express or implied consent of the Chairman previously or subsequently obtained.
8. Section 30, therefore, means that a delegation by a written order is essential; but, if there is no such delegation, an act lone by the Vice-Chairman shall not be invalid if done with the express or implied consent of the Chairman previously or subsequently obtained. In the explanation that has been submitted by the learned Extra Assistant Commissioner, it is stated that there is in existence a general order of the Chairman in writing authorizing the Vice-Chairman to prosecute people for offences under this Act. No details, however, of this general order have been given in the explanation and there are no sufficient materials on the record from which it can be ascertained whether there was in this case any express or implied consent of the Chairman, previously or subsequently obtained within the meaning of the proviso to Section 30. Were this, however, the only ground on which the proceedings could be held to be defective, possibly, I would not have interfered in view of the fact that the objection to the validity of the Vice-Chairman's order was not a point that was made at any time in the course of the trial. The other contention, to which I have already referred, in my opinion, is more substantial, and on it this Rule should in my judgment be made absolute. I accordingly set aside the conviction of the petitioner that is complained of in this Rule and direct that the fine, if paid by him, be refunded.