Shillong Municipal Board vs Shri Bhagirath Yadav

Manisana, J.—This is an appeal from an order of acquittal of the Chief Judicial Magistrate Shillong in CR Case No. 396(S) of 1979.

Facts of the case, in brief, are thus. On 13-8-79, the Chief Executive Officer of the Shillong Municipal Board made a complaint to the Chief Judicial Magistrate Shillong stating that the accused Shri Bhagirath Yadav, the proprietor of Yadav Mistanna Bhandar at Shillong Bara Bazar, has made an extension of 12ft x 4ft in area to the ground floor without obtaining permission from the Municipal Board. The notice u/s 177(1) of the Meghalaya Municipality Act, for short ''the Act'', had been served on the accused directing him to demolish the unauthorised construction, but he failed to do so. The Chief Judicial Magistrate acquitted the accused of the charge, without entering into the merits of the case, on the ground that the prosecution was instituted without the order or consent of the Board as is provided u/s 324 of the Act. Hence this appeal.

Mrs. B. Dutta, the learned counsel for the appellant, has contended that order or consent of the Board was not required in such a case where the Shillong Municipal Board was dissolved by the order of the State Government of Maghalaya u/s 298 of the Act and the Chief Executive Officer was functioning and discharging the powers and duties of the Board.

Mr. My Ciddikie, the learned counsel for the respondent has contended that the consent of the Board was required, and that u/s 10 of the Act, the Municipal Board is a body corporate having perpetual succession and a common seal, and by that name shall sue and be sued and, therefore, the prosecution should have been instituted in the name of the Municipal Board.

The question which arises for consideration is whether the order or consent of the Board was required u/s 324 of the Act where the complaint was made by the Chief Executive Officer during the period of supersession or dissolution of the Board.

Section 299 of the Act provides consequences of super session. u/s 299, when the Board is dissolved or superseded all the Commissioners of the Board shall, as from the date of the order of dissolution or supersession, vacate their offices as such Commissioners and all the powers and duties which under the Act may be exercised and performed by the Board, whether at a meeting or otherwise, shall, during the period of supersession, or in case of dissolution till the new Commissioners and the Chairman are elected or nominated, be exercised and performed by such person or persons as the State Government may direct.

In the present case, after the dissolution of the Board, the Chief Executive Officer has directed by the State Government to exercise all the powers and duties of the Board, whether at a meeting or otherwise. Therefore, the Chief executive Engineer, so long as the supersession or dissolution lasts, shall exercise and perform the powers and duties, and as such, during the period of supersession or dissolution, there is substitution of functionaries, and the Chief Executive Officer shall be deemed to be the Board for the purpose.

The question which, therefore, arises for consideration is whether the Court shall not take cognizance of any offence under the Act, or under any rules or bye-laws made under the Act, on the complaint of the Board (now the Chief Executive Officer).

u/s 324 of the Act, no prosecution for an offence under this Act, or under any rule or bye-law made in pursuance thereof, shall be instituted without the order or consent of the Board. Section 324 further provides limitation for institution of the prosecution. The object of the order or consent of the Board is to guard vexatious proceedings against any person, i.e. the object is to save unnecessary harassment to the accused. Therefore, if the Board, which is to give the consent or order, itself makes a complaint, the position would be otherwise. We approach the matter as follows. Section 190, Cr. P.C. provides that any Judicial Magistrate of the first class has jurisdiction to take cognizance of any offence upon receiving a complaint of facts which constitute such offence. u/s 4(2), Cr. P.C. all the offences under any other law shall be tried, and otherwise dealt with according to the provisions of the Code, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences. u/s 5, Cr. P.C. nothing contained in the Code, shall, in the absence of a specific provision to the contrary, affect any special or local law for the time being in force. Therefore, any Magistrate of the first class shall have the jurisdiction to take cognizance of any offence under the Act provided that there is no provision to the contrary under the Act. Section 324 is the relevant provision. On reading of Section 324, we do not find that there is any bar from taking cognizance of any offence under the Act or Under any rules or bye-laws made thereunder, on the complaint made by the Board itself. In the present case, as already stated, the functionaries of the Board had been substituted by the Chief Executive Officer, and the Chief Executive Officer, would be deemed to be the Board, and as such, complaint made by the Chief Executive Officer was maintainable, i.e., the Magistrate had jurisdiction to take cognizance of the offence.

As regards the contention of Mr. Ciddikie relating to Section 10, section 10 relates to Civil suit and not to criminal prosecution. Criminal prosecution is one thing and the Civil suit is another. In that view of the matter, the contention of Mr. Ciddikie cannot be accepted.

The next question, which arises for consideration is whether the prosecution shall be terminated as the matter has been pending for last 11 years, and, u/s 158 of the Act, offence is punishable with a fine not exceeding Rs. 200/- and to a further fine not exceeding Rs. 25/- during which encroachment continues. Quick justice is a sine qua non of Article 21 of the Constitution of India. Considering overall circumstances of the case, we are of the view that it would be just and fair and in accordance with the equity to direct that the trial to proceed no further. We do so accordingly.

In the result, the appeal is dismissed with the above observation. However, we make it clear that the Board may take any other suitable action with regard to encroachment in accordance with law.