Solid State Devices India Limited Vs. Yamuna Digital Electronics Pvt. Ltd. - Court Judgment

Excerpt:
- [a.k. sarkar,; m. hidayatullah and; s.k. das, jj.] the appellant was convicted of selling adulterated butter under ss. 406 and 407 read with s. 488 of the calcutta municipal act as extended to the municipality of howrah on a complaint filed by the sanitary inspector on january 2, 954 which was signed in token of sanction by the health officer of the said municipality. the appellant contended that the trial was vitiated for want of a valid sanction because at the relevant time the health officer of the municipality did not have any power to sanction the prosecution. under the act the power to institute a complaint vested in the commissioners but they could delegate the power to the chairman and the chairman could also by a general or special order in writing re-delegate the power to the vice-chairman or to any municipal officer. the question of the delegation of their power by the commissioners was not specifically raised, but it was urged that the chairman had by certain subsequent orders revoked the delegation in favour of the health officer. the first order passed by the chairman on february 6, 1948, delegated to the vice-chairman all his powers, duties and functions in respect of seven departments including the health department. the second order was passed on december 20,1949, by which the chairman delegated his powers and functions to the health officer to order prosecution and to sign prosecution sheets in respect of cases concerning the health and conservancy departments. the third order was made on april 7, 1951, on the eve of the new election, and stated: "till the election of executives by the new board i delegate all my powers and functions except those that are delegated to the vice-chairman to the respective officers of departments". after the election, the new chairman passed an order on july 4, 1951, delegating all his powers, duties and functions in respect of six departments including the health department to the vice-chairman. the last order was passed on december 12, 1952, which said: "i hereby revoke my order dated the 4th july 1951, so far as it relates to the health department which shall henceforth be direct under my charge until further orders. this will take effect from 15th december, 1952". the appellant urged that the third order modified the second and placed a time limit on it and that the delegation lapsed on the expiry of the time. the respondent contended that the third order did not affect the second and that in any case the health officer could file the complaint as a private citizen. held, (per s. k. das and a. k. sarkar, jj.) that the health officer was not empowered as the duly delegated authority to institute criminal proceedings against the appellant on the date on which he made the complaint. the third order made by the chairman on april 7, 1951, modified the second order by making the delegation thereunder in favour of the health officer effective only till the election of the new executive. the object of the third order was to leave the new chairman free to pass his own orders of delegation and not to fetter his discretion in any way. the orders passed by the new chairman did not delegate the power to the health officer. held, further, that a complaint under the calcutta municipal act, 1923, as applied to municipality of howrah, can only be filed by the authorities mentioned therein and not by an ordinary citizen. section 537 of the act provides that the commissioners may institute, defend or withdraw from legal proceedings under the act; under s. 12 the commissioners, can delegate their functions to the chairman, and the chairman can in his turn delegate the same to the vice- chairman or to any municipal officer. the machinery provided in the act must be followed in enforcing its provisions, and it is against the tenor and scheme of the act to hold that s. 537 is merely enabling in nature. nazir ahmed v. king emperor, (1936) l.r. 63 i.a. 372. referred to. sisir kumar mitter v. corporation of calcutta. (1926) i.l.r. 53 cal. 631, explained. keshabdeo kedia v. p. banerjee, sanitary inspector, howrah municipality. a.i.r. (1943) cal. 31 and state v. manilal jethalal a.i.r (1953) bom. 365,referred to. cole v. coulten,2 ellis & ellis 695, buckler v. wilson, (1896) 1 q.b.d. 83, the queen v. stewart, (1896) 1 q.b.d. 300 and giebler v. manning, (1906) 1 k.. b 709, held inapplicable. the queen v. cubitt. (1889) 22 q.b.d. 622, relied on. per hidayatullah, 1. the sanction given by the health officer was valid as the delegation of authority, to him by the order of december 20, 1949, was not taken away by subsequent orders. the order of december 20, 1949, which specially conferred the power to order prosecution to sign prosecution sheets was a special order and was unaffected by the general order of april 7, 1951. the later order put a time limit only on delegations made under that order and not on orders made before.  order1. special leave granted.2. on condition that the appellant deposits in the trial court a sum of rs. 5,00,000/- (rupees five lakhs) within two months from today and a further sum of rs. 5,00,000/- (rupees five lakhs) within two months thereafter, the winding up proceedings in company petition no. 14 of 1984 pending before the high court of andhra pradesh proceedings in suit no. 15 of 1986 in the court of the subordinate judge, medak district, sanga reddy, and suits nos. 10331, 10330 and 10332 of 1986 in the court of the additional judge, city civil court hyderabad, shall remain stayed. by consent of parties, the issue whether the amount claimed by the respondent in the winding up proceedings is in fact due to the said respondent will be tried in suit no. 10331 of 1986. the aforesaid amount of rs. 10,00,000/-(rupees ten lakhs) shall be invested by the trial court in a scheduled bank in fixed deposit for a period of three years.3. the appeal is disposed of accordingly. there is no order as to costs.

Judgment:
ORDER

1. Special leave granted.

2. On condition that the appellant deposits in the trial court a sum of Rs. 5,00,000/- (Rupees Five lakhs) within two months from today and a further sum of RS. 5,00,000/- (Rupees Five lakhs) within two months thereafter, the winding up proceedings in Company Petition No. 14 of 1984 pending before the High Court of Andhra Pradesh proceedings in Suit No. 15 of 1986 in the court of the subordinate Judge, Medak District, Sanga Reddy, and Suits Nos. 10331, 10330 and 10332 of 1986 in the court of the Additional Judge, City Civil Court Hyderabad, shall remain stayed. By consent of parties, the issue whether the amount claimed by the respondent in the winding up proceedings is in fact due to the said respondent will be tried in suit No. 10331 of 1986. The aforesaid amount of Rs. 10,00,000/-(Rupees Ten lakhs) shall be invested by the trial court in a Scheduled bank in fixed deposit for a period of three years.

3. The appeal is disposed of accordingly. There is no order as to costs.