Ramaswami, J. - (1.) On August 29, 1960, Shri Sham Sunder Mathur, Municipal prosecutor of the Delhi Municipal Corporation filed a complaint in the Court of Magistrate First Class against the respondent, Jagdishlal under Section 7 read with Section 16 of the Prevention of Food Adulteration Act, 1954 (37 of 1954). In the said complaint Shri Sham Sunder Mathur said that he was competent to file the complaint under Section 20 of the aforesaid Act in accordance with a resolution passed by the Corporation in its meeting held on December 23, 1958. By his order dated April 30, 1962 the learned Magistrate acquitted the respondent. The Delhi Municipal Corporation made an application to the High Court asking for special leave under Section 417 of the Code of Criminal Procedure to appeal against the order of acquittal. The application was granted on September 3, 1962. When the appeal came up for hearing a preliminary objection was raised on behalf of the respondent that the only person competent to file the appeal was the complainant, Shri Sham Sundar Mathur. But the leave application was not filed by him and, therefore, the Municipal Corporation was not competent to prosecute the appeal. It was contended that only the complainant was competent to present an application for special leave under Section 417 (3) of the Code of Criminal Procedure. As the complainant in this case was Shri Sham Sudar Mathur the appeal could not be filed by the Delhi Municipal Corporation. The High Court upheld the preliminary objection of the respondent and dismissed the appeal by its order dated April 29, 1965. This appeal is brought by special leave on behalf of the Delhi Municipal Corporation against the judgment of the High Court dated April 29, 1965 in Cri. A. No. 163-D of 1962.
(2.) Section 20 of the Prevention of Food Adulteration Act, 1954 states: " (1) No prosecution for an offence under this Act shall be instituted except by, or with the written consent of, the Central Government or the State Government or a local authority or a person authorised in this behalf, by general or special order; by the Central Government or the State Government or a local authority: Provided that a prosecution for an offence under this Act may be instituted by a purchaser referred to in Section 12, if he produces in Court a copy of the report of the public analyst along with the complaint. ********** " Section 417, sub-sections (1), (2) and (3) of the Code of Criminal Procedure after its amendment by Act 26 of 1955 provide: " (1) Subject to the provisions of sub-section (5), the State Government may, in any case, direct the Public Prosecutor to present an appeal to the High Court from an original or appellate order of acquittal passed by any Court other than a High Court. (2) If such an order of acquittal is passed in any case in which the offence has been investigated by the Delhi Special Police Establishment constituted under the Delhi Special Police Establishment Act, 1946 (XXXV of 1946), the Central Government may also direct the Public Prosecutor to present an appeal to the High Court from the order of acquittal. (3) If such an order of acquittal is passed in any case instituted upon complaint and the High Court, on an application made to it by the complainant in this behalf, grants special leave to appeal from the order of acquittal, the complainant may present such an appeal to the High Court. ********** "
(3.) The principal question to be determined is whether the complaint dated August 29, 1960 was instituted by the Delhi Municipal Corporation. It is argued on behalf of the respondent that the complaint petition was not made and signed by the person competent under the Delhi Municipal Corporation Act, 1957 to exercise powers of the Corporation in the matter of institution of legal proceedings, In our opinion there is substance in this contention. The only provision under the Delhi Municipal Corporation Act, 1957, which confers powers to institute legal proceedings is Section 476 (1) (h) which states: " (1) The Commissioner may - ********** (h) institute any prosecute any suit or other legal proceeding, or with the approval of the Standing Committee withdraw from or compromise any suit or any claim for any sum not exceeding five hundred rupees which has been instituted or made in the name of the Corporation or of the Commissioner; ********** " 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 not 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 vs. J. C. Chakravarty, (1960) 2 SCR 789 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 vs. King Emperior, 63 Ind App 372 at page No. 381 viz.: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.;