ABRAHAM SUNNY Vs. SREEMATHY AMMA
HIGH COURT OF KERALA
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(1.) The short question that arises for decision in this case is whether the Commissioner of a Municipal Corporation can delegate his power to file a complaint to initiate proceeding against any person who is charged with any offence against the Kerala Municipal Corporations Act Rules, Bye laws or Regulations. The Commissioner's power of initiating civil and criminal actions etc., is provided for in S.425 of the Kerala Municipal Corporations Act, 1961 -- Act 30 of 1961 (shortly stated the Act).
The section reads af follows:-
"Provisions respecting institution, etc., civil and criminal actions and obtaining legal advice - The Commissioner may --
(a) take, or withdraw from, proceedings against any parson who is charged with --
(i) any offence against this Act, the Rules, bye laws or regulations;
(ii) any offence which affects or is likely to affect any property or interest of the corporation or the due administration of this Act;
(iii) committing any nuisance whatsoever;
(b) compound any offence against this Act, the rules, bye laws or regulations which may, by rules made by the government, be declared compoundable;
(c) defend himself if sued or joined as a party in any proceedings in respect of the conduct of elections or in respect of the electoral roll;
(d) defend, or compromise any appeal against an assessment or tax;
(e) take, withdraw from or compromise proceedings under S.414 and 422 for the recovery of expenses or compensation claimed to be due to the corporation;
(f) withdraw or compromise any claim for a sum not exceeding five hundred rupees against any person in respect of a penalty payable under a contract entered into with such person by the Commissioner, or with the approval of the standing committee any such claim for any sum exceeding five hundred rupees; committee, any such
(g) with the approval of the council, defend any suit or other legal proceedings brought against the corporation or against any municipal authority, officer or servant in respect of anything done or omitted to be done by them respectively in their official capacity;
(h) with the approval of the standing committee, compromise any claim, suit or other legal proceeding brought against the corporation or against any municipal authority, officer or servant, in respect of anything done or omitted to be done as aforesaid;
(i) with the approval of the standing committee, institute and prosecute any suit or withdraw from or compromise any suit or claim, other than a claim of the description specified in clause (f), which has been instituted or made in the name of the corporation or of the commissioner;
(j) obtain much legal advice and assistance as he may from time to time think it necessary or expedient to obtain, on as he may be desired by the council or the standing committee to obtain, for any of the purposes mentioned in the foregoing clauses of this section or for securing the lawful exercise or discharge or any power or duty vesting in or imposed upon any municipal authority, officer or servant."
(2.) The expression 'take proceedings' as used in this section means instituting a complaint and does not mean causing a complaint to be filed as held by the Supreme Court in construing an identical provision in S.481 of the Bombay Provincial Municipal Corporation Act 59 of 1949 in the case Mangalal Chunilal v. Maganlal ( AIR 1968 SC 822 ).
(3.) In that case the Supreme Court overruled the contrary view of the Bombay High Court in State v. Manilal Jethalal (AIR 1953 Bom. 365). In the Bombay case, speaking for a Division Bench of that court, Bavedakar, J., had said at page 368:
"One can see easily why the word take' is used. It was desired to combine in one clause the two powers, the power to launch proceedings and the power to withdraw proceedings, and if the words "withdraw from proceedings" were used, it was not easy to use the words "order proceedings to be taken" in combination with the words ''withdraw proceedings". That was why, in our view, the words "take or withdraw from proceedings" were used in the City of Bombay Municipal Act. If the legislature had in such a case really wanted that the complaint should actually be either of the commissioner or an officer empowered by him, it would have been perfectly easy to use the words which find place in several Acts, for example, "except upon a complaint in writing of the commissioner or an officer to whom he has delegated his powers". On the whole, therefore, we think that we should interpret the words "take proceedings" to mean "order proceedings to be taken"."
The Supreme Court said about this observation in the case cited supra (AIR 1968 SC 822 at p. 824):
"But we are not free to interpret the words "take proceedings" to mean ''order proceedings to be taken" because the word "take" is an English word and we can only ascribe to it a meaning which it bears in the English language.";
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