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The Corporation of Calcutta Vs. Promotho Nath Mullick - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in30Ind.Cas.643
AppellantThe Corporation of Calcutta
RespondentPromotho Nath Mullick
Excerpt:
calcutta municipal act (iii of 1899 b.c.), sections 589, 341, 102, 63(3) - notice issued on behalf of general committee, whether to be signed and if so, by whom--special rule of evidence contained in section 589, applicability of--proceeding of committee how to be proved when not signed by chairman--irregularity--evidence act (i of 1872), section 78. - .....589 of the act stands in the way of the secretary to the corporation, who is also secretary to the general committee, signing a notice under section 341 of the act. section 589 obviously does not. section 589 is a special rule of evidence applying to all proceedings under the act and when the notice is signed as mentioned in section 589, it proves the regularity of all proceedings taken under the act. there is nothing in the section which limits the general law of evidence as applicable to proceedings under the act. so far as the secretary is concerned, there seems to be no reason why he should not sign the notice on behalf of the general committee. the secretary under the terms of the act is not only the secretary to the corporation but he is also by the terms of section 63(3) appointed.....
Judgment:

Fletcher, J.

1. This case comes before us on a reference made by the Municipal Magistrate of Calcutta in his capacity as a Presidency Magistrate under Section 432 of the Code of Criminal Procedure. Certain proceedings had been taken against Promotho Nath Mullick, the opposite party in this case, under Section 450(3) of the Calcutta Municipal Act, III (B.C.) of 1899, for his failure to comply with a notice served under the Act, the offence being under Section 341(1) for not having removed or altered a fixture within the period prescribed by the notice served under the Act.

2. The points which have been referred to us are as follows:

(1). Whether Section 589 of the Act stands in the way of the Secretary to the Corporation, who is also Secretary to the General Committee, signing a notice under Section 341 of the Act. Section 589 obviously does not. Section 589 is a special rule of evidence applying to all proceedings under the Act and when the notice is signed as mentioned in Section 589, it proves the regularity of all proceedings taken under the Act. There is nothing in the section which limits the general law of evidence as applicable to proceedings under the Act. So far as the Secretary is concerned, there seems to be no reason why he should not sign the notice on behalf of the General Committee. The Secretary under the terms of the Act is not only the Secretary to the Corporation but he is also by the terms of Section 63(3) appointed Secretary to the General Committee. It could never be in the contemplation of the Legislature that every notice going under the Act should be signed by all the members of the General Committee and that any notice which, did not contain the signatures of the members of the General Committee should be invalid. As a matter of fact, there is no express provision in the Act requiring signature to these notices at all, and it seems not unreasonable that the Municipal Officer who holds the1 office of the Secretary to the Corporation and the General Committee should sign, as part of his ordinary duty, the notices that are issued on behalf of the General Committee, the only difference being that the special rule of evidence contained in Section 589 doss not apply when the notice does not purport to have been signed by the Chairman. But subject to that, of course, there is no reason why the notices should not he signed by the Secretary. In my opinion, we ought to answer the first question by stating that Section 589 does not stand in the way of the Secretary signing a notice under Section 341 of the Act.

3. The second question is--whether Exhibit I, which is a copy of the printed proceedings of the General Committee's meeting and which contains their sanction under Section 341 in this case, is sufficient legal proof of the sanction. That, again, depends on Section 589. If the notice had been signed by the Chairman, it would not have to be proved that there had been a meeting or that it had been regularly held. But that does not prevent the general law of evidence from being applicable and those proceedings can be proved either by the production of a copy of proceedings certified by the legal keeper or by a printed book purported to be published under the authority of the General Committee. In what manner the Corporation should think fit to prove the meeting and the passing of the resolution is not for us to determine at present. The copy, if produced, must be certified by the legal keeper. Presumably, Mr. Wyness is not the legal keeper. But, apparently, the keeper of the proceedings of the General Committee would be the Secretary who is appointed by the Act to be the Secretary to the General Committee. I think, therefore, that the printed proceedings themselves would not be sufficient legal proof unless they answer the description given in Section 78 of the Evidence Act, namely, being a printed book purported to be published by the authority of such body.

4. The third question is--whether the order of the Chairman delegating to the Secretary to the Corporation of Calcutta and Secretary to the General Committee of the Corporation of Calcutta the powers to sign all written documents referred to and described in Section 589 of the Act is legal. That question does not arise. But 1 may mention in passing, in order that the Corporation may have the benefit of the special rule of evidence under Section 589 and to avoid further difficulties, that the notices issued should bear the signature or a fac simile of the signature of the Chairman, because whether the signature by the Secretary, the Secretary purporting to sign under the general power of delegation, would make applicable the special rule of evidence laid down by Section 589, I am not at present prepared to say. All we need say is that this third question does not arise in this reference.

5. The next question is--whether in the event of Exhibit I and notice under Section 341 being held illegal, these irregularities are cured by Section 102 of the Act. Section 102 is in these terms: 'No proceeding taken under this Act shall be questioned on the ground merely of any defect or irregularity not affecting the merits of the case.' If these are the only defects or irregularities, nobody could say that the, mere fact that the Secretary has signed the notice instead of the Chairman in any way affects the merits. The second sub-section may be of importance, if the case proceeds, namely, as to the proof that the meeting of the General Committee was duly convened and the resolution was free from all defects or irregularities.

6. These are all the questions pleaded before us by the Municipal Magistrate and there seems to be very little substance in them and we answer the reference in the above way.

Beachcroft, J.

7. The answer to the first question propounded by the learned Magistrate is obviously in the negative. Section 589 merely provides a method of proof of consent, etc., of the Corporation, General Committee, Chairman or Municipal Officers where the consent of those bodies or individuals is required under the Act. It has nothing whatever to do with the signing of notices though doubtless if a notice purports to set forth the consent referred to in the section, signature of the notice by the Chairman would be sufficient evidence of the consent of the Corporation, General Committee or Chairman. There is no provision in the Act for the signing of the notices nor are the duties of the Secretary defined, and there seems to be no reason why the signing of notices, if they require signature at all, should not be included in the ordinary duties of the Secretary.

8. The second question is-'whether the printed proceedings of the General Committee's meeting, which, inter alia, contains their sanction under Section 341, is sufficient legal proof of the sanction under Section 589 of the Act.' The answer to this is also obviously in the negative, for M. Wyness, who signed it, is not the Chairman. It was suggested that Section 78(5) of the Evidence Act would make the copy of the proceedings sufficient f roof. But the copy produced does not appear to have been certified by the legal keeper, nor is it contained in a printed book purporting to be published by the authority of the Corporation.

9. I express no opinion on the third question which does not appear to arise properly on the facts stated.

10. The fourth question is--whether in the event of the Hon'ble Judges holding that Exhibit I, the printed proceeding of the General Committee purporting to be signed by Mr. Wyness is not legal proof of the sanction of the General Committee under the provisions of Section 589, or that the notice under Section, 341 should have been signed by the Chairman, and not by the Secretary, is either of these irregularities cured by the provisions of Section 102 of Act III (B.C.) of 1899?' In view of the answer previously given that the Secretary is competent to sign notices, this question in so far as signature by him is assumed to be an irregularity requires no answer, though the section doubtless would cure an irregularity of such a nature.

11. But I am at a loss to understand how the learned Magistrate treats the state of things contemplated in the first part of the question as an irregularity. I imagine the Magistrate must have been in some doubt as to whether Mr. Wyness could legally sign the proceedings. If he was the President of the next ensuing meeting, it was obviously his duty to sign the proceedings under Section 97. But that is not the question put by the learned Magistrate. His question is in effect this: assuming that a certain document is not legal proof of a certain fact, does Section 102 (which is merely a validating section), make it proof of that fact,' in other words, does Section 102 amend the law of evidence?' When the question is presented in this form, the answer is so obviously in the negative that discussion becomes unnecessary.


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