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Mohan Lal Vs. Town Area Committee - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtJammu and Kashmir High Court
Decided On
Judge
Reported in1966CriLJ263
AppellantMohan Lal
RespondentTown Area Committee
Cases ReferredEmperor v. Muhammad Shafi
Excerpt:
- .....prosecution case was that the petitioner mohan lai had constructed a khoka within the limits of town area committee baramulla without the requisite permission of the said committee. thereafter a complaint was filed by a sanitary inspector on the basis of which the petitioner was prosecuted and ultimately convicted.3. both the courts below have concurrently found as a fact that the petitioner had constructed a khoka and that the petitioner was unable to produce any permission from the committee for constructing the same.4. the only point of law that has been argued before me was that the sanitary inspector was not duly authorised to file the complaint under section 62 of the town area act and hence the entire proceedings taken against the petitioner were without jurisdiction. to put.....
Judgment:
ORDER

S. Murtaza Fazl Ali, J.

1. This is an application against the Orders of the courts below convicting the petitioner under Sections 45,47 and 57 of the Town Area Act. The petitioner has been sentenced to a fine of Rs. 15/- and in default of payment of fine lo a simple imprisonment for one week and the petitioner has also been ordered to remove the 'Khoka' within 10 days.

2. The prosecution case was that the petitioner Mohan Lai had constructed a Khoka within the limits of Town Area Committee Baramulla without the requisite permission of the said Committee. Thereafter a complaint was filed by a Sanitary Inspector on the basis of which the petitioner was prosecuted and ultimately convicted.

3. Both the courts below have concurrently found as a fact that the petitioner had constructed a Khoka and that the petitioner was unable to produce any permission from the Committee for constructing the same.

4. The only point of law that has been argued before me was that the Sanitary Inspector was not duly authorised to file the complaint under Section 62 of the Town Area Act and hence the entire proceedings taken against the petitioner were without jurisdiction. To put the contention in a more illustrative form it comes to this that although by virtue of the resolution dated 30-12-1957 the Town Area Committee had generally authorised the Sanitary Inspector to file cases for violation referred to in Section 62 of the Town Area Act, there was no specific authority by the Committee in respect of a particular offence which the petitioner is alleged to have committed. It was, therefore, contended that the authority was both vague and incompetent. Section 62 of the Town Area Act runs as follows:

No court shall take cognizance of any offence punishable under this Act or any rule made thereunder except on the complaint of the Town Area Committee or of some person authorised specially by name or office by the Committee in this behalf.

Analysing the provisions of this Section, it seems to me that it requires that before any court can take cognizance of any offence under the Act, there must be a complaint of a person authorised specially by name or office by the Committee in this behalf. Mr. Dhar submitted that the word 'specially' which follows 'authorised' would clearly show that the authority must be specific and must contain reference to the nature of the offence and the accused concerned. Mr. Raina, however, submitted that the provisions of Section 62 of the Act are wide enough to include a general authority given to any person by the Committee authorising him to launch prosecutions against an accused person. In this connection, he has submitted two authorities before me. In the first place, he has relied on a Full Bench decision of the Allahabad High Court, report-ed in Powell v. Municipal Board of Mussoorie, ILR 22 All 123 (FB) where seven Judges took the view that a general power of authorisation to launch prosecution is a valid authority under the Act. The provisions of the Municipal Act in that case, as would appear from the judg-ment in that case, are almost identical with the provisions in the State Act. Their Lord-ships after dealing with the various provisions of law observed as follows:

The word 'authorised' would include it just as much as the narrower kind of authority which consists in authorising an agent merely to take specific action in a particular case. That the wider meaning is not an exceptional or anomalous one is further shown by the instance cited by Mr. Chamier of 129 other enactments, such as Section 59 of the N.W.P. Rent Act, 1881, Section 51 of the Code of Civil Procedure and Section 19 explanation 2 of the Limitation Act, 1877 in which the same words 'authorised in this behalf' are clearly used in the sense of a general authority. Then if the language used is wide enough why should we go out of our way to place restrictions on it....

The meetings of the Board are subject to regulations as regards convening notices to be sent to the members and as to quorum and so presuppose a machinery which often means considerable delay and which could not possibly be applied as a preliminary to each and every prosecution for a municipal offence. That is precisely the consideration which induced the Legislature to enact the concluding words of Section 69. I can see no a priori improbability, no considerations of public policy which would make it unlikely that the legislature should entrust to a Municipal Board power to confer on other persons not only a specific authority to file a particular complaint but a general authority to prosecute for municipal offences, including authority to determine whether a prosecution is desirable.

Similar view was taken by a Division Bench of the Lahore High Court in Emperor v. Muhammad Shafi, reported as AIR 1928 Lahore 27, where a decision of a Single Judge taking a contrary view was specifically over-ruled. In view of these authorities, I am inclined to agree with the contention raised by the learned Counsel for the Town Area Committee. Moreover, it seems to me that the word 'specially' qualifies not 'authorised' but the words 'name or office.' In other words the significance of the word 'specially' would connote that there must be a specific person or a body who should be authorised to file a complaint. Indeed, if the word 'specially' had preceded the word 'authorised' the matter could have been slightly different.

5. In these circumstances, therefore, I hold that a general power of authority given by the Committee on 30-12-1957 is a valid authority as contemplated by Section 62 of the Town Area Act.

6. No other point was pressed before me.

7. A fortnight time is allowed to the petitioner to demolish the 'Khoka.

8. The application is accordingly dismissed and the Rule is discharged.


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