Chimanlal Bechardas vs Surat Borough Municipality

Chainani, J.

[1] In this case the accused has been convicted u/s 52 of the Bombay Shops and Establishments Act, 1948, on the charge of keeping his shop in Surat open on Sunday October 15, 1950, in contravention of the provisions of Section 16 of the Act. The Additional Sessions Judge, Surat, has now made a reference recommending that the conviction of and the sentence passed upon, the accused should be set aside, as there was no valid sanction for his prosecution.

[2] Section 60 of the Act provides that no prosecution under this Act or the rules or orders made thereunder shall be instituted except with the previous sanction of the Government or the local authority, as the case may be. The expression "local authority" has been defined in Section 2(15) of the Act as meaning a Municipality constituted under the City of Bombay Municipal Act, the Bombay District Municipal Act or the Bombay Municipal Boroughs Act or a local board constituted under the Bombay Local Boards Act. As the accused''s shop is situated in Surat City, the local authority in this case would be the Surat Municipality, which is constituted under the Bombay Municipal Boroughs Act, 1925. The sanction for the prosecution of the accused has, however, not been granted by the Surat Municipality, but by its Chief Officer.

A Chief Officer is an executive officer of the Municipality. He is appointed by the Municipality. Section 9 of the Bombay Municipal Boroughs Act provides that every Municipality shall consist of elected councillors. A Chief Officer is, therefore, a different entity from the Municipality or the local authority, whose sanction is required u/s 60. This section does not empower the Chief Officer to grant such Sanction. Section 43 of the Act provides that it shall be the duty of every local authority to enforce, within the area subject to its jurisdiction, the provisions of the Act provided that the local authority may by order direct that the said duty of enforcing the provisions of the Act shall be discharged, in such circumstances and subject to such conditions, if any, as may be specified in the order, by its Chief executive officer or any other subordinate to it.

It is doubtful whether sanctioning a prosecution would fall within the expression "enforcing the provisions of the Act" in Section 43 of the Act. Even assuming that under this section the Municipality could delegate its power of granting sanction for instituting prosecutions to its Chief Officer, there is nothing on the record to show that the Surat Municipality has delegated this power to its Chief Officer. There is also no provision in the Bombay Municipal Boroughs Act, which would enable the Chief Officer to exercise this power. Section 30(2) of this Act states that the executive power for the purpose of carrying out the provisions of "this Act" vests in the Chief Officer. This section, therefore, deals only with the powers of a Chief Officer for the purpose of carrying out the provisions of the Municipal Boroughs Act. Section 34 defines the powers and duties of a Chief Officer. This section also does not contain any provision which would enable a Chief Officer to exercise the power conferred on a Municipality u/s 60 of the Bombay Shops and Establishments Act.

[3] The view taken by the learned Additional Sessions Judge that there was no valid sanction for the prosecution of the accused is therefore, correct. We accordingly set aside his conviction and the Sentence passed upon him fine, if paid, should be refunded.

[4] Conviction set aside.