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1976 DIGILAW 144 (CAL)

S. M. Bose v. P. K. Verma

1976-04-14

H.N.Seth, P.C.Borooah

body1976
Judgment 1. THE Respondent in Criminal Appeal Nos. 182 and 183 of 1975, viz., P. K. Verma, the Proprietor of Scholar Press, was tried before Shri G. C. Biswas, Senior Municipal Magistrate, metropolitan Magistrate and Judicial Magistrate, First class, Calcutta in Case Nos. 4945-C of 1973 and 6105-C of 1972 under section 437 (1) (b) of the Calcutta Municipal act, 1951 (hereinafter referred to as the Act) for non-payment of license fees amounting to Rs. 100 - per year for the years 1972-73 and 1971-72 in respect of the said Press which was located at premises No. 128, Hazra Road, Calcutta. 2. THE learned Magistrate by two separate judgments dated March 17, 1975 acquitted the Respondent on the ground that the cases were not sustainable for want of service of notice of assessment upon the Respondent as well as for want of sanction by the commissioner of the Corporation of Calcutta. Detailed reasons were given in the judgment in connection with case No. 6105-C of 1972. The two appeal have been preferred against the order of acquittal by Shri S. M. Bose, Deputy License Officer of the Corporation. 3. MR. Mrigen Sen, learned Advocate appearing on behalf of the appellant, does not dispute the finding of the learned Magistrate that the cases are not sustainable for want of proper service of notice of assessment on the respondent. Mr. Sen however challenges the acquittals on the ground of want of sanction by the Commissioner of the Corporation of Calcutta. 4. MR. Manan Kumar Ghosh, learned Advocate appearing on behalf of the respondent does not controvert Mr. Sen's argument that the learned Magistrate was wrong in holding that the prosecution was bad for want of sanction by the Commissioner. The learned Magistrate in coming to his conclusion that the prosecution was bad for want of proper sanction has relied on a decision of this High court, viz. the case of Corporation of Calcutta v. Bivabati Basu (73 C. W. N. 786. On the basis of that decision, the learned Magistrate has come to the conclusion that the Commissioner himself holds the power to prosecute under authority delegated to him under section 30 of the Act and this power cannot be further delegated under section 34 of the said Act. On the basis of that decision, the learned Magistrate has come to the conclusion that the Commissioner himself holds the power to prosecute under authority delegated to him under section 30 of the Act and this power cannot be further delegated under section 34 of the said Act. The learned magistrate also held that the; Commissioner appears to have delegated his powers under section 254 (1) of the Act to the Deputy License Officer under section 34 of the said Act by a letter dared September 19, 1952 and as such delegation was bad in law. 5. THE decision referred to above arose out of a Reference made by a Sen or Municipal Magistrate to this court under section 342 (a) of the Code of Criminal Procedure, 1898 for the determination of a question of law viz., whether in view of the provisions of, section 552 (1) of the Act, a petition of complaint bearing the facsimile signature of the Commissioner of the Calcutta Corporation can be accepted as proper and valid execution of a petition of complaint by the Commissioner to enable the Court to proceed upon such complaint. Amaresh Ray and bagchi JJ. who constituted the Bench give two separate judgments. In both the judgments the question was answered in the negative but the learned judges also expressed the view that the authority delegated to the Commissioner under section 30 of the Act could not be further delegated by him. In this connection Bagchi, J. observed as follows : - "the power of the Calcutta Corporation under section 585 clause: (a) of the Calcutta Municipal Act, 1951 can, under the provisions of section 30 of the Act and the resolution of the Calcutta Corporation passed thereunder, be delegated only to the Commissioner of the Calcutta Corporation, but to no other municipal officer or servant. Section 34 of the Calcutta Municipal Act 1951 does not authorise the commissioner of the Calcutta Corporation to delegate his delegated powers, duties or functions to any other municipal officer or servant. " Amaresh Ray, J was also of the same view. He observed: "power to make such complaint is a function under Calcutta Municipal Act. Making of the complaint is governed by Criminal Procedure code. " Amaresh Ray, J was also of the same view. He observed: "power to make such complaint is a function under Calcutta Municipal Act. Making of the complaint is governed by Criminal Procedure code. The complaint may be signed by the Commissioner under authority delegated under section 30 of the Calcutta Municipal act, for and on behalf of the complainant, Corporation of Calcutta, commissioner cannot delegate that delegated authority under section 34 of the Calcutta Municipal Act. " 6. THE authority to launch the prosecutions and institute the complaints in the two cases before us were purporated to be delegated by the Commissioner of the Calcutta Corporation by an order dated September 19, 1952. Under the order the Commissioner delegated to the Deputy Licence Officer under section 34 of the Act the powers conferred upon him under section 254 (1) of the Act. Section 254 (1) of the Act empowers the Commissioner to prosecute a person if such prosecution lies under the provision of the Act or cause a notice of demand to be served on such person in accordance with the scheduled forms when there is any sum due from such person on account of taxes as specified in sub-sections (a) to (d. Section 254 (1) must be read with section 585 (a) or in other words, a prosecution by the Commissioner under section 254 (1) is on behalf of the Corporation by virtue of the powers delegated to him under section 30 of the act. 7. THE instant prosecutions were under section 437 (1) (b) of the Act which is punishable under section 537 of the Act. The power of launch the prosecution lay with the Corporation of Calcutta by virtue of Section 585 (a)of the Act, and this power was delegated to the Commissioner under section 30 of the Act. The Commissioner could not on September 19, 1952, further delegate such a power to the Deputy License Officer. 8. BY section 11 of the Calcutta municipal (Amendment) Act, 1953 (West Bengal Act XIX of 1953), section 34 of the Act was amended and the Commissioner was empowered to delegate to any municipal officer or servant any of his powers, duties or functions including the powers, duties or functions delegated to him under section 30 of the Act. This amendment came into force on July 6 1953. This amendment came into force on July 6 1953. After that date the Commissioner could delegate to the Deputy License Officer or any other officer or servant of the corporation the powers conferred upon him under section 30 of the Act including the power to launch prosecution in the name of the Corporation. In the case of Corporation of Calcutta v. Bivabati Basu (supra), the learned Judges obviously overlooked the amendment of section 34 of Act by west Bengal Act XIX of 1953. Had the attention of the learned Judges been drawn to the amendment, the aforesaid observations regarding the commissioner's inability to further delegate his powers given to him under section 30 would probably not have been made. This is also clear from an unreported judgment of Bagchi J, delivered on March 20, 1970 in dealing with an application under Article 134 (1) (c)of the Constitution in connection with criminal Appeal No. 357 of 1969 (Corporation of Calcutta v. Messrs. Bhagat oil Mill. In the said judgment the lea rued Judge observed as follows :- "by amending section 34. of the Calcutta Municipal Act 1951, by act XIX of 1953 the provision has been made under which the Commissioner may delegate any of his powers, duties and functions including the duties, powers and functions delegated 10 him under section 30 either by the Calcutta Corporation or by a Standing Committee subject to certain exceptions. " It was further observed : - "the amended provision of section 34 and the "commissioner's circular had not been placed before me when the appeal was heard and decided. Had the amended provision of section 34 and the commissioner's circular been placed before me my judgment in appeal might not have been one of confirmation of acquittal." 9. IN view of the fact that the delegation in the instant cases was made prior to the Calcutta Municipal (Amendment) Act. 1953 coming into force and also in view of the fact that the notices of assessment were not properly served upon the Respondent, the appeals must stand dismissed. Appeal dismissed.