Full Judgment Text
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 7
PETITIONER:
K. M. KANAVI
Vs.
RESPONDENT:
THE STATE OF MYSORE
DATE OF JUDGMENT:
18/04/1968
BENCH:
BHARGAVA, VISHISHTHA
BENCH:
BHARGAVA, VISHISHTHA
SIKRI, S.M.
SHELAT, J.M.
CITATION:
1968 AIR 1339 1968 SCR (3) 821
CITATOR INFO :
R 1970 SC 816 (2,4)
D 1972 SC 928 (6)
D 1982 SC1407 (17)
ACT:
Bombay Municipal Boroughs Act, (18 of 1925)--Section 23A(2),
(3) and s. 200(1)--Prosecution and conviction of retiring
President for disobeying orders of State Government to hand
over charge--Procedure prescribed by s. 200(1) mandatory.
HEADNOTE:
Section 23A(3) of the Bombay Municipal Boroughs Act, 1925,
makes it an offence if a retiring President to whom a
direction has been issued by the State Government to hand
over charge of his office does not comply with such
direction and under s. 200(1) the authorities who "may
direct"’ any prosecution for punishment of any person
offending against the provisions of the Act are the Standing
Committee and the Chief Officer.
The appellant who was removed from the office of President-
ship refused to obey the order of the State Government
directing him to hand over charge to the newly elected
President. He was prosecuted and convicted for an offence
under s. 23A(3), not on the direction of the Standing
Committee or the Chief Officer as required by s. 200(1) but
on a complaint filed at the instance of the State Government
by the newly elected President. The High Court, dismissing
revision application against the order of conviction, took
the view that s. 200(1) was only an enabling provision and
it could not be held to be exhaustive of the authorities who
could make directions for initiation of such proceedings.
In appeal to this Court,
HELD: The conviction must be set aside. The Scheme of
the Act and the purpose of s. 200(1) make it clear that if
any proceeding for punishment of any person for
contravention of any of the provisions of the Act is to be
instituted, it must be instituted in the manner laid down in
s. 200(1) of the Act and in that manner only. The word
"may" was intended to give a discretion to the Standing
Committee or the Chief Officer to make directions for taking
proceedings only when they considered it appropriate that
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 7
such a direction should be made and to avoid compelling the
Standing Committee or the Chief Officer to make such
directions in all cases. If the interpretation of the High
Court were to be accepted it would mean that this provision
was totally unnecessary, because, there would be no need to
confer power on the Standing Committee or the Chief Officer
to make such directions if such directions could be made or
proceedings instituted at the instance of any private
individual. [826 C-D. F]
Baliavdass Agarwala v. Shri J. C. Chakravarty, [1960] 2
S.C.R. 739 Mangulal Chunilal v. Manilal Maganlal and
Another, Criminal Appeal No. 59 of 1965 decided on 23-11-
1967, followed :
The State v. Manilal Jethalal, (1953) 55 B.L.R. 377,
referred to.
Section 200(1), as it stands at present, is clearly
applicable even to a proceeding for punishment of a retiring
President under s. 23A(3) even though it might look
anomalous that the prosecution in such
822
circumstances has to be ordered by the Chief Officer who was
his subordinate at least during the time when he was working
as the President. The remedy lies in suitable amendment of
s. 200(1). L828 E]
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 145 of
1965.
Appeal by special leave from the judgment and order dated
January 15, 1965 of the Mysore High Court in Cr. Revision
Petition 299 of 1964.
H. R. Gokhale and R. B. Datar, for the appellant.
R. Gopalakrishnan, and S.P. Nayar, for the respondent.
The Judgment of the Court was delivered by
Bhargava, J. The appellant, K. M. Kanavi, was the President
of the Municipal Borough of Gadag Betgeri from 11th January,
1960 to 15th March, 1963. He was removed from the
President-ship on 15th March, 1963 by an Order passed by the
Government of Mysore for neglect of duty and incapacity
under section 21(2) of the Bombay Municipal Boroughs Act,
1925 (No. XVIII of 1925) (hereinafter referred to as "the
Act") which was applicable to Gadag Betgeri, even though it
was situated in the State of Mysore, because it was earlier
a part of the State of Bombay. On the next day, i.e., on
16th March, 1963, the Government passed an order superseding
the Borough. The appellant filed two writ petitions
challenging these two orders of his removal and supersession
of the Borough. The order of supersession was quashed by
the High Court of Mysore by its judgment dated 10th April
1963 in Writ Petition No. 492/1963 reported in The Presi-
dent, Gadag Betgeri Municipal Borough v. State of Mysore(1).
Thereafter, elections were held for the office of the
President, because the appellant had ceased to be the
President under the order of removal. One Malashetti was
elected as the President of the Borough on 22nd April, 1963.
On 25th April, 1963, the new President asked the appellant
to hand over all the papers, documents and property
belonging to the Municipal Administration. On 2nd May,
1963, the appellant sent three keys and two files of papers
by registered parcel to the new President. The new
President returned it on the ground that those articles had
not been delivered to him in person by the appellant and be
considered it unsafe to take delivery of the registered
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 7
parcel. When sending this parcel, the appellant wrote an
accompanying letter in which he specifically stated that he
was retaining certain papers as they were needed by him for
his writ petition which was pending against his order of
removal. Thereafter, on 20th June, 1963, the State
Government made an order under sub-s. (2) of S. 23A of the
Act directing the appellant to hand over charge of all the
papers
(1) [1964] 1. M. L.J. 147.
823
And properties which were in his possession to the new
President. He was also asked to hand over an iron cupboard
with its keys and contents which were with him. This
Government Order was served on the appellant on 9th July,
1963. The appellant did not comply with the Order and,
consequently, on 21st September, 1963, the Government of
Mysore sent an order to the Divisional Commissioner
directing him to take necessary action under section 23A of
the Act to prosecute the appellant, since he had defied the
Government Orders and had refused to hand over charge of the
papers and properties of the Borough to, the newly elected
President. The Divisional Commissioner, in turn, wrote to
the Deputy Commissioner on 5th October, 1963, requesting him
to take immediate action under S. 23A(3) of the Act to
prosecute the appellant. The Deputy Commissioner then
passed an order authorising the newly elected President of
the Borough to be the formal complainant in respect of this
prosecution which had been ordered by the Government and to
file a criminal complaint against the appellant. This order
was made by the Deputy Commissioner on 24th December, 1963.
The new President, Malashetti, thereupon filed a complaint
against the appellant for an offence punishable under S.
23A(3) of the Act. The complaint itself is dated as 3rd
January, 1964, but the judgment of the High Court mentions
that the complaint was actually presented in Court on 8th
January, 1964. Since these dates are not very material for
decision of the point on the basis of which this appeal is
being decided, we have not tried to ascertain the exact date
of presentation of the complaint in court. On the basis of
this complaint and the facts mentioned above, the appellant
was convicted by a Magistrate for the offence under S.
23A(3) of the Act and was sentenced to pay a fine of Rs.
501-, in default to suffer simple imprisonment for seven
days. The appellant filed a revision against this order of
conviction in the High Court of Mysore and challenged it on
three grounds. One ground was that the complaint filed by
the new President Malashetti was incompetent as it was not
filed in accordance with the procedure laid down in the Act,
so that the proceedings taken by the Magistrate were without
jurisdiction. The second point was that, even if it be held
that the complaint was validly filed the provisions of S.
23A of the Act were not attracted, as the appellant could
not be held to be a retiring President and an order under S.
23A(2) can only be made against a retiring President. The
third plea was taken that the complaint was barred by time.
The High Court did not accept any of these three pleas and
dismissed the revision. The appellant has, therefore, come
up to this Court in appeal by special leave.
In this case, the facts, which have been enumerated above,
were not disputed even during the trial of the case, and the
defence
8Sup CI/68-13
824
of the appellant was confined to the three grounds mentioned
above which were urged in the revision before the High
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 7
Court. To appreciate the first ground mentioned above, it
is necessary to reproduce section 23A and sub-s. (1) of
section 200 of the Act which are as follows :-
"23A. (1) On the election of a new President
or Vice-President, the retiring President or
Vice-President in whose place the new
President or Vice-President has been elected
shall hand over charge of his office to such
new President or Vice-President, as the case
may be.
(2) If the retiring President or Vice-
President fails or refuses to hand over charge
of his office as required under sub-se
ction (1)
the State Government or any authority
empowered by the State Government in this
behalf may, by order in writing, direct the
President or the Vice-President, as the case
may be, to forthwith hand overcharge of his
office and all papers and property of the
municipality, if any, in his possession as
such President or Vice-President, to the new
President or Vice-President.
(3) If the retiring President or Vice-
President to whom a direction has been issued
under sub-section (2) does not comply with
such direction, he shall, on conviction, be
punished with simple imprisonment for a term
which may extend to one month or with fine
which may extend to Rs. 500 or with both.
200. (1) The standing committee and, subject
to the provisions of sub-section (3) the Chief
Officer 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 rule or 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 by-laws 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 discovery of such
offence."
Sub-s. (1) of S. 23A casts the duty on the retiring
President to hand over charge of his office to the new
President, when a_new President has been elected. It is
obvious that, when handing over
825
charge, the retiring President must hand over to his
successor all the papers and property belonging to the
Borough. Sub-section (2) of s. 23A envisages a case where
the retiring President fails or refuses to hand over charge
of his office in that manner. This sub-section empowers the
State Government or any authority empowered by the State
Government in this behalf to make an order in writing
directing the retiring President to forthwith hand over
charge of his office and all papers and property of the
municipality to the new President. Sub-section (3) of s.
23A prescribes the punishment which can be awarded to a
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 7
retiring President who is convicted for not complying with a
direction issued under sub-s. (2). It is clear that, in the
present case, the appellant was not liable to conviction
under s. 23A(3) merely because he refused to hand over
complete charge to Malashetti when the latter asked him to
do so by his letter dated 25th April, 1963 or even by the
subsequent reminder dated, 6th May, 1963. The failure of
the appellant to hand over the property, however, led the
State Government to make a direction under s. 23A(2) on 20th
June, 1963 and this Order of the Government was served on
the appellant on 9th July, 1963. This Order was not
complied with by the appellant according to the case of the
prosecution. It was because of the failure of the appellant
to comply with this Order that the complaint was filed by
the new President under s. 23A(3). The complaint was,
therefore, clearly for initiating a proceeding for the
punishment of the appellant who had offended against the
provision under sub-s. (2) of s. 23A of the Act. Under s.
200(1) of the Act, direction for taking such proceedings
could be made either by the standing committee or by the
Chief Officer. Admittedly, Malashetty was not the Chief
Officer, nor did he file the complaint under any direction
made by the Standing Committee of the Borough. It is on
this ground that the plea has been put forward on behalf of
the appellant that the complaints against him was
incompetent and no conviction could be validly recorded
against him on its basis.
The High Court rejected this plea on the ground that, in its
opinion, s. 200(1) of the Act is only an enabling section
which gives the power to the Standing Committee and the
Chief Officer to make directions for taking of proceedings
of this nature and it cannot be held to be exhaustive of the
authorities who could make directions for initiation of such
proceedings. The High Court took notice of the fact that in
the Act, there is no provision forbidding cognizance of an
offence being taken except on a complaint made under a
direction of the Standing Committee or the Chief Officer,
and interpreted the expression "may direct" used in s.
200(1) of the Act as indicating that it was an enabling
section permitting the Standing Committee and the Chief
Officer to make necessary directions. In these
circumstances, the High Court con-.
826
cluded that this provision could not be held as laying down
that the Standing Committee and the Chief Officer were the
exclusive authorities who could institute proceedings of the
nature mentioned in that sub-section. On this view, the
High Court further proceeded to hold that a complaint could
have been filed for an offence under the Act by even a
private individual, so that the complaint filed by
Malashetty, who was interested in his capacity as the newly
elected President, was competent and valid.
We are unable to accept the interpretation put by the High
Court on S. 200(1) of the Act. It is true that there is no
specific provision in the Act laying down that cognizance of
an offence under the Act is not to be taken except on a
complaint filed in accordance with a direction made under S.
200 (1 ), but the scheme of the Act and the purpose of this
provision in S. 200(1) makes it clear that the legislature
intended that such proceedings should only be instituted in
the manner laid down in that sub-section. The word "may"
was used only because the legislature could not have enacted
a mandatory provision requiring the Standing Committee or
the Chief Officer to make a direction for institution of
proceedings in all cases. This word was intended to give a
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 7
discretion to the Standing Committee or the Chief Officer to
make directions for taking proceedings only when they
considered it appropriate that such a direction should be
made and to avoid compelling the Standing Committee or the
Chief Officer to make such directions in all cases. The use
of this word "may cannot be interpreted as laying down
that, if a proceeding for punishment of any person for con-
travention of any of the provisions of the Act is to be
instituted, it can be instituted in any manner without
complying with the requirements of S. 200(1) of the Act. If
the interpretation put by the High Court on this provision
is accepted, it would mean that this provision was totally
unnecessary, because there would be no need to confer power
on the standing committee or the Chief Officer to make such
directions if such directions could be made or proceedings
instituted at the instance of any private individual. We
cannot accept the submission that this provision was made in
the Act simply by way of abundant caution. In fact, if the
provision had been made with such an object in view, there
is no reason why the power should have been expressed to be
conferred on the standing committee and the Chief Officer
only and not on the President of the Municipality. We,
consequently, hold that, if any proceeding for punishment of
any person for contravention of any of the provisions of the
Act is to be instituted, it must be instituted in the manner
laid down in S. 200(1) of the Act and in that manner ,only.
This view of ours follows the principle laid down by this
Court in Ballavdas Agarwalay. Shikri J. C.Chakravarty(1). In
that case,
(1) [1960] 2 S.C.R. 739.
827
the Court had to interpret a similar provision in S. 537 of
the Calcutta Municipal Act, 1923, under which it was laid
down that the Commissioner may institute, defend or withdraw
from legal proceedings under that Act or under any rule or
bye-law made thereunder. The Court held that, though the
word used was "may". this provision must be read as
requiring that the institution or withdrawal from legal
proceedings under that Act must be by the Commissioners and
no other authority. The decision was given on the basis
that the scheme of the Act made it clear that section was
intended to confer exclusive power on the Commissioners.
The interpretation that it was a mere enabling section
because of the use of the word "may" was rejected and it was
hold that, if the other interpretation canvassed was
accepted, the section would become clearly otiose. That
principle clearly applies to the interpretation of S. 200
(1) of the Act with which we are concerned.
In Mangulal Chunilal v. Manilal Maganlal and Another(1), a
similar interpretation was put on section 481 ( 1 ) of the
Bombay Provincial Municipal Corporation Act, 1949, which
also used the word "may" when laying down that the
Commissioner may take or withdraw from proceedings against
any person who is charged with any offence against this Act
or...... This Court referred to the decision in Ballavdas
Agarwala(2) and said :-
"Similarly, here it seems to us that only the authorities
mentioned in S. 481, read with s. 69, can launch proceedings
against persons charged with offences under the Act or the
rules, regulations or by-laws made under it."
In the case before us, reliance was placed on the other side
on a decision of the Bombay High Court in The State v.
Manilal Jethalal(3). That decision has already been
disapproved by this Court in the case of Mangulal
Chunilal(1), and need not detain us. On this view, it must
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 7
be held that the complaint in the present case, which was
instituted by Malashetty, the newly elected President,
without any order or direction by the standing committee or
by the Chief Officer was not competent as it did not comply
with the requirements of S. 200(1) of the Act.
In this connection, a new point that was raised was that,
whenever an Order under s. 23A(2) of the Act is made and is
disobeyed, only the State Government, which made the Order
or the new President to whom the papers and property of the
Borough have to be given under the direction made by the
Government will have the knowledge that the retiring
President has failed to
(1) Criminal Appeal No. 59 of 1965 decided on 23-11-1967.
(2) [1960] 2 S. C. R. 739.
(3) [1953] 55 B. L. R. 377.
828
comply with the direction and has, thus, committed an
offence punishable, under S. 23A(2) of the Act and,
consequently, it should be held that a complaint in respect
of such an offence was not intended to be covered by the
provisions of S. 200(1) of the Act. On the language of s.
200(1) of the Act, however, we must reject this contention,
because it clearly lays down that the Standing Committee and
the Chief Officer are the authorities who can order
proceedings to be taken for the punishment of any person
offending against the provisions of the Act, and the present
prosecution of the appellant is clearly for an offence of
failing to comply with a direction under s. 23A(2) made
punishable under s. 23A(3) of the Act. It may, no doubt,
appear anomalous that the prosecution of even a retiring
President in such circumstances has to be ordered by the
Chief Officer, who was his subordinate at least during the
time when he was working as the President. It seems to us
that this anomaly has arisen, because, when s. 23A in its
present form was introduced in the Act by the Bombay Act XL
of 1950 and for the first time a retiring President was made
liable to conviction for failing to comply with a direction
made under sub-section (2) of that section, the Legislature
did not notice that S. 200(1) of the Act would govern even
such a proceeding. The legislature left s. 200(1) of the
Act untouched. That provision, as it stands at present, is
clearly applicable even to a proceeding for punishment of a
retiring President under s. 23A(3) of the Act, so that the
remedy may now lie in a suitable amendment of S. 200(1) of
the Act. The conviction of the appellant on the basis of
the complaint filed by the new President Malashetty, in
disregard of the provisions of s. 200(1) of the Act, must,
therefore, be held to be invalid and set aside.
Since the appeal succeeds on this one ground, we do not con-
sider it necessary to discuss the other two grounds raised
by the appellant for challenging his conviction. The appeal
is allowed and the conviction and sentence of the appellant
are set aside
R.K.P.S. Appeal allowed.
829