Municipal Corporation Of Delhi vs Sunil Sabharwal
1995 Latest Caselaw 286 Del

JUDGMENT

P.K. Bahri, J.

(1) These three matters arise out of the complaints filed by M.C.D. against same person Sh.Sunil Sabharwal. It would be convenient to dispose of these three matters by this common judgment.

(2) Facts leading to the filing of these two criminal appeals and the criminal revision are that on July 23, 1984, at about 10.25 A.M, House No.B-101, Mansarovar Garden, belonging to Sh.Sunil Sabharwal, was inspected by the Junior Engineer (Building) of M.C.D. and it was found that four rooms, kitchen, verandah, toilet and staircase at ground floor and one room, verandah and toilet on the first floor were under construction for which no building plan had been got sanctioned and thus, a complaint under Section 332 read with Section 461 of the Delhi Municipal Corporation Act was filed on October 19 1984 before the Magistrate concerned. The record shows that the complaint was signed by the Assistant Public Prosecutor of Municipal Corporation on 4th August 1984 and was presented before the Magistrate concerned on October 19, 1984 and summons were directed to be issued for November 6, 1984.

(3) One of the points raised before the Magistrate by the respondent was that in fact this complaint was presented in October 1986. This point was negatived by the Magistrate for the very good reasons given in the order of the Magistrate. It was urged before the learned Magistrate that the complaint was barred by limitation. The learned Magistrate had, however, come to the conclusion vide his order dated 4th August 1988 that the complaint was filed within time. He has held that Shri A.S.Yadav, Metropolitan Magistrate, has directed the issuance of summons in this complaint on duty in the mobile van on November 6, 1984 for which he had issued the summons. Sh.A.S.Yadav was not the magistrate who was dealing with the municipal corporation cases in 1986. So, mere fact that under the orders of the Magistrate, year was not mentioned, the argument was sought to be built that the complaint was presented to the Magistrate in the year 1986 and not in 1984. There is no merit in this plea of the respondent. Admittedly, the complaint for the offence under Section 332 of the Municipal Corporation Act could be presented within six months of the commission of the offence and this complaint appears to have been presented within time.

(4) Another complaint arising from the same inspection carried out by the Junior Engineer was filed for the offence punishable under Section 325 read with Section 461 of the Delhi Municipal Corporation Act for having stacked the building material on the municipal land without permission. Same orders were made by Sh.A.S.Yadav, Metropolitan Magistrate on this complaint and both the complaints were being taken up for decision by the Metropolitan Magistrate together as the common facts arose for decision in both these complaints. The complaints had not been yet decided on merits.

(5) The respondent had filed a revision before the Sessions Judge which came up for hearing before Sh.J.D.Kapur, Additional Sessions Judge. He had partly allowed the revision and had set aside the orders of the Metropolitan Magistrate with regard to his finding that the complaint pertaining to the offence under Section 325 of the Delhi Municipal Corporation Act has been filed in limitation. He has mentioned in the order of revision that the said question should be decided by the learned Magistrate after recording the evidence. In respect of the complaint pertaining to the offence under Section 332 of the Delhi Municipal Corporation Act, the learned Additional Sessions Judge allowed the revision holding that the said complaint was liable to be dismissed inasmuch as a subsequent complaint filed by M.C.D. against the respondent with regard to offence covered by Section 343 of the Delhi Municipal Corporation Act, pertaining to the same premises on the allegation that the respondent had failed to demolish the illegal construction noticed above, having been dismissed by the Metropolitan Magistrate, so the same debars the Municipal Corporation of Delhi to go ahead with the complaint under Section 332 of the Delhi Municipal Corporation Act. Against these finding of the learned Additional Sessions Judge, the criminal revision 75/89 has been filed by the MCD.

(6) A complaint under Section 343 of the Delhi Municipal Corporation Act was filed before the Metropolitan Magistrate on April 6, 1985 on the allegations that respondent had failed to demolish the unauthorised construction mentioned aforesaid and thus has committed the offence under Section 343 read with Section 461 of the Delhi Municipal Corporation Act. This fact was noticed by the Junior Engineer when he inspected the premises again on 23rd August 1984 at 11.45 A.M. As this complaint was filed beyond six months from the date of the inspection i.e. 23rd August 1984, the learned Magistrate had dismissed the complaint and acquitted the respondent as the complaint was held to be time barred vide order dated March 21, 1987. Criminal Appeal No.116/88 has been filed against the said order of acquittal.

(7) Another complaint was filed against the respondent on 23rd July 1985 on the allegation that the aforesaid construction, which was illegal, was required to be demolished vide order dated July 30, 1984 but was found to be not demolished on inspection carried on 7th February 1985 at 10.15 A.M. The learned Magistrate, vide his judgment dated 21st March 1987, had held that as previous complaint of similar nature had been dismissed as time barred, thus this complaint has also to be deemed to be time barred. Criminal Appeal No.117/88 has been filed against this order of acquittal.

(8) The respondent, who has argued the appeals himself, has contended that neither of these two appeals have been instituted by any duly authorised person on behalf of the Municipal Corporation of Delhi which was the complainant or the Assistant Prosecutor, who had filed the original complaints before the Magistrate.

(9) Criminal Appeal No.116/88 has been signed by Mrs.Usha Kumar, Counsel for the M.C.D. It is accompanied by affidavit of Bachhan Singh, Assistant Municipal Prosecutor. This affidavit is attested on June 29, 1987 but in verification, it appears that, instead of year 1987, the year 1986 has been typed which appears to be a clerical mistake because this appeal has been filed on June 29, 1987 and not in 1986. The Oath Commissioner has verified this affidavit on June 29, 1987. The impugned order in this case has been made on March 21, 1987, so the question is whether this appeal has been properly instituted on behalf of Municipal Corporation of Delhi or not. The power of attorney in favor of the counsel has been signed by Sh.J.P.Jain, Deputy Law Officer. Similar is position with regard to Criminal Appeal 117/88.

(10) It is indeed not in dispute that Municipal Corporation of Delhi was the complainant in the case and it is the Municipal Corporation of Delhi who could have filed the leave to appeal and the appeal against orders of acquittal. The learned counsel for Municipal Corporation of Delhi has placed on record the office orders issued under Section 491 of the Delhi Municipal Corporation Act by the Municipal Commissioner. One is dated April 20, 1981 by which powers under Section 476(1)(h) have been conferred on Deputy Law Officer meaning thereby that full powers had been given to Deputy Law Officer to file not only the suit, written statement, appeal, affidavit, cross-objection or any other application in all legal proceedings. This particular order also entitles the Deputy Law Officer of the Corporation to engage any counsel/lawyer on behalf of the Corporation and to sign the power of attorney. This power available to the Municipal Commissioner under Section 476(1)(i) has been delegated in this manner. The respondent has, however, argued that this particular delegation would not mean that even leave to appeal can be filed by the delegatee. He has urged that the words "other legal proceedings" should be read ejusdem generis with the words "any suit" appearing in that very clause.

(11) The question is whether the words "other legal proceedings" appearing in Section 476(1)h) of the Delhi Municipal Corporation Act would include filing of leave to appeal in criminal cases or not.

(12) The matter is not res integra as it has been settled by a judgment of the Supreme Court given in case of Municipal Corporation of Delhi Vs. Jagdish Lal, . It has been held in this case that in the offences pertaining to Delhi Municipal Corporation Act and under Prevention of Food Adulteration Act, the complaint can be filed either by the Municipal Corporation or by a person authorised by it in that behalf by a general or special order and the person, so delegated, acts only on behalf of the Municipal Corporation and thus Municipal Corporation can institute an appeal against acquittal even if the complaint has been filed by its delegatee with regard to the phrase "other legal proceedings" appearing in Section 476(1)(h) of the Act. The Supreme Court held as follows:-

"IT is clear that the phrase "other legal proceedings" includes the power to institute a complaint before a Magistrate and hence it is the Commissioner alone who could exercise the power as there is no other provision in the Act which confers such power on anyone else. This view is supported by the decision of this Court in Ballavdas Agarwala v. J.C.Chakravarty, in which it was pointed out that a complaint under the Calcutta Municipal Act, 1923 as applied to the Municipality of Howrah, would only be filed by the authorities mentioned therein and not by an ordinary citizen. Section 537 of that Act provided that the Commissioners may institute, defend or withdraw from legal proceedings under the Act; under Section 12 the Commissioners can delegate their functions to the Chairman, and the Chairman may in his turn delegate the same to the Vice Chairman or to any municipal officer. It was observed in that case that the machinery provided in the Act must be followed in enforcing its provisions, and it was against the tenor and scheme of the Act to hold that Section 537 was merely enabling in nature. The principle invoked in that case was that adopted by the Privy Council in Nazir Ahmad v. King Emperor .: that where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all. It was, therefore, held that if a legal proceeding was instituted under the Municipal Act in question it must be done in accordance with the provisions of the Act and not otherwise."

(13) So, it is evident that the words "other legal proceedings" are not of any narrow import which are to take its hue from the preceding words "any suit". So, if the said phrase can include a complaint to the Magistrate, obviously, the said phrase would also include an appeal to be filed against order of acquittal before the High Court arising from the said criminal complaint.

(14) It has been then urged that the advocate had no right to sign leave to appeal application or the appeal. The advocate acts under the authority given to him by his client. The Deputy Law Officer was duly authorised to act on behalf of the Municipal Corporation for instituting these legal proceedings before the High Court and had authorised the advocate to act on his behalf in this matter and thus, in our view, the advocate was competent to sign the papers regarding the filing of the leave to appeal and the appeal against the order of acquittal in this Court. It is also pertinent to mention that the affidavit accompanying the said papers is signed by Bachhan Singh, Assistant Municipal Prosecutor. Copy of another office order has been placed on the record by the counsel for the petitioner which is dated August 18, 1986 by which Assistant Municipal Prosecutor has been delegated power for instituting the proceedings as mentioned in Section 476(1)(h) of the Act.

(15) The respondent has, however, argued that this order has been issued in supersession of all the previous orders on the subject and thus it would mean that the previous order by which the Deputy Law Officer has been given similar power stood superceded and he had no power when he signed the power of attorney in favor of the counsel. If we read this order, we find that it has been issued for giving powers to Assistant Municipal Prosecutor and Legal Assistant of the Municipal Corporation also in addition to the powers already given to others because the wording of the office order shows that the powers conferred under Section 467(c), 473 and 476 of the Act would be also exercised by Assistant Municipal Prosecutor and Legal Assistant of the Municipal Corporation of Delhi. It means that these powers are given to these officers also.

(16) However, it must be mentioned that the power of the Commissioner given in Section 476(1)(i), which has been delegated to Deputy Law Officer for engaging the lawyer on behalf of the Corporation, has not been superceded by this subsequent order at all. So, by virtue of first order, the Deputy Law Officer could engage the counsel on behalf of the Corporation and by virtue of the second order mentioned above, the Assistant Municipal Prosecutor of the Municipal Corporation could file the legal proceeding including the appeal. By filing the affidavits in support of the appeals, the said Assistant Municipal Prosecutor would be deemed to have filed the appeals.

(17) As far as the merits of the findings pertaining to three complaints, subject matters of these three matters, are concerned, the Metropolitan Magistrate had dismissed the subsequent complaint on the ground that the same were barred by limitation as the complaint had not been filed within six months of the commission of the offence. The Magistrate had not recorded any evidence for giving such finding of fact. It is true that six months' period is prescribed for filing the complaint for commission of offences punishable under Section 471 of the Delhi Municipal Corporation Act but the limitation would start running only from the date the knowledge of the offence comes to the notice of the complainant i.e. the Municipal Corporation of Delhi. The Municipal Corporation of Delhi is not a natural person and thus, unless and until the factum of commission of offence comes to the notice of an officer who is entitled to act as a complainant on behalf of the Municipal Corporation of Delhi, the limitation shall not commence. It is the question of fact to be decided on evidence which may be led during the trial on the point of limitation as to on what date the officers who had been delegated the powers to institute the complaint were apprised of the factum of commission of the offence.

(18) The respondent has placed reliance on Ram Lal Sethi Vs. The State, 1966 (68) Punjab Law Reporter (Delhi Section) 349 where it has been held that the word 'Complainant' appearing in Section 471 has reference to the Municipal Corporation of Delhi and not to any employee of the Corporation and the purpose of Section 471 is that if the Corporation does not take the action within six months of the commission of the offence or within six months of its coming to know of the same, the accused stands exonerated of its liability for punishment. This judgment is given by a Single Hon'ble Judge of the Punjab High Court in Circuit Bench at Delhi. It is pertinent to mention that the Court has given this opinion on the basis of the facts appearing in that case that no evidence has been led by the Municipal Corporation to show as to when actually the offence has been committed and when it came to the knowledge of the Municipal Corporation of Delhi.

(19) In the present case, no evidence as yet has been led to show that on what date the factum of commission of offence by the respondent came to the knowledge of the Municipal Corporation of Delhi. The respondent has mentioned that the complaint itself shows that after the demolition order was passed on 30th July 1984, the inspection was done on August 23 1984 by the Junior Engineer and he had found that demolition had not been carried out by the respondent in respect of the said illegal and unauthorised construction and the complaint having been filed on 6th April 1985 was, on the face of it, beyond six months, hence was barred by limitation. This contention has been accepted by the learned Metropolitan Magistrate on the basis of the ratio laid down in the aforesaid judgment in the case of Ram Lal Sethi (supra).

(20) The question as to who is the complainant in such like cases came up for consideration under the Delhi Development Act before this Court in case of Delhi Development Authority Vs. Punjab National Bank 1981 Dlt 353 and in case of Oriental Bank of Commerce Vs. Delhi Development Authority, 1982 Criminal Law Journal 2230. In both these cases, it has been held that not only the D.D.A. but also the authorised person, the Secretary of D.D.A, are the complainants. In Gurmit Kaur Vs. D.D.A,, 1980 Rajdhani Law Reporter (Note) 63 it has been held that the limitation would start from the date of the knowledge of the authorised officer competent to sanction the prosecution.

(21) In case of Ram Lal Sethi, (supra), no ratio has been laid down as to from what date the limitation would commence. Hence, it is evident that Municipal Corporation of Delhi being not a natural person, the knowledge of commission of offence must come to the notice of a competent officer who can initiate the prosecution on behalf of the Municipal Corporation of Delhi and only then the limitation of six months would commence from such date of knowledge. The Municipal Corporation of Delhi comprises of a large number of officials of different hierarchy. It would be really absurd to say that even if an official of class-IV comes to know about the commission of the offence, the limitation would start running from the date of his knowledge and that knowledge is to be imputed to be the knowledge of Municipal Corporation of Delhi. It is not shown that the Junior Engineer, who had inspected the premises on August 23, 1984, had the authority to launch the criminal prosecution against the respondent, so unless and until he was competent authority to initiate criminal prosecution against respondent on behalf of Municipal Corporation of Delhi, it cannot be said that limitation of six months would start running from the date of his knowledge.

(22) The learned Magistrate was not right in dismissing the complaint as having become time barred merely on the facts appearing in the complaint that the Junior Engineer had come to know about the commissioning of the offence on the inspection carried out by him on August 23, 1984 and complaint having been filed on April 6, 1985, so the same is barred by limitation on the face of it. The learned Magistrate ought to have recorded the evidence and should have, on the basis of evidence, determined as to who was the officer who was competent to initiate the criminal proceedings against the respondent on behalf of the Municipal Corporation of Delhi and as to on what date he came to know about the commission of the offence by the respondent. Hence, the order of acquittal passed by the learned Magistrate cannot be sustained.

(23) The second complaint was filed on 23rd July 1985 on the allegations that despite the demolition order dated 30th July 1984 and the notice dated 1st August 1984, the Junior Engineer had inspected the premises on 7th February 1985 and had found that the illegally constructed structure had not been demolished by the respondent. This complaint has been dismissed by the Magistrate and respondent has been acquitted on the finding that illegal structure continued to exist from the very first day and mere fact that the Junior Engineer had visited the premises and found the illegal structure to be existing on 7th February 1985 would not give any fresh six months' period of limitation for filing a complaint. There is a fallacy in this reasoning. The illegal structure which had come into existence, in respect of which demolition order has been passed, would continue to furnish fresh cause of action to the Municipal Corporation of Delhi if the same is not demolished despite service of notice.

(24) However, although we are not agreeing with the reasoning of the learned Magistrate, by which the respondent has been acquitted, we would not like to decide the case on merits and would like to remand the case back to the Metropolitan Magistrate for deciding it on merits but before deciding this case, the Metropolitan Magistrate is required to decide the first two challans filed against the respondent by which the respondent had been accused of having constructed the premises without sanction and also of having stacked the building material without any permission on the municipal lane which complaints bring about the offences under Section 332 and 325 of the Municipal Corporation Act. The respondent has been acquitted of the offence under Section 332 of the Municipal Corporation Act by the first appellate Court on the ground that respondent had been acquitted of the offences under Section 343 of the Municipal Corporation Act in respect of the same building subsequently.

(25) We are of the view that these two appeals and the criminal revision are liable to be allowed and orders of the learned Additional Sessions Judge are liable to be set aside and the orders of the Metropolitan Magistrate acquitting the respondent of the offence under Section 343 of the Municipal Corporation Act are also liable to be set aside.

(26) Before parting with the judgment, we may refer to two judgments cited by the respondent. One is M.C.D. Vs. Ravindra K.Mahindra, 1990 Rajdhani Law Reporter 289 and the other is Municipal Corporation of Delhi Vs. Krishna Devi, 1988 Rajdhani Law Reporter 78. These two judgments do not discuss the point as to from which date the limitation of six months is to commence. So, they are of no help in deciding the point arising for decision before us.

(27) He also referred to Union of India Vs. Remo Morgani, 1979-80 Calcutta Weekly Notes 634 where it has been held that it is the complainant who has the right to appeal against the order of acquittal. There is no doubt about this proposition of law. In the present case, the complainant is Municipal Corporation of Delhi and any person authorised to take the legal proceedings on behalf of Municipal Corporation of Delhi would also be entitled to file the appeal against acquittal.

(28) He also referred to State Vs. Ishwar Saran, in which it has been held that medical officer is not the complainant who can file the appeal against order of acquittal. Nothing said in this judgment is of any help in deciding the point arising for decision in this case.

(29) Reference was also made to Mangulal Chunilal Vs. Manilal Maganlal A.I.R. 1968 Supreme Court 828 which lays down that only delegatee of the powers under the Bombay Provincial Municipal Corporation Act can initiate the proceedings and not any other person authorised by such delegatee. There is no doubt about this proposition of law also. Here the appeals have been filed by the officer who had been delegated the power, as referred by us above and not by any person nominated by such delegatee.

(30) We allow the appeals and the revision and set aside the said orders and remand these three cases back to the Metropolitan Magistrate for deciding them afresh in light of the observation made by us in this judgment. The Magistrate shall first decide the two cases pertaining to the offences under Section 332 and Section 325 of the Municipal Corporation Act and thereafter shall decide the other two cases for offences punishable under Section 343 of the Municipal Corporation Act. The parties are required to appear before the Metropolitan Magistrate concerned for further proceedings on 22nd May 1995.