A complaint under the Calcutta Municipal Act, 1951, must be filed by the Commissioner or a duly authorized delegate.

SANKAR BHATTACHARYYA, J. N. HORE

( 1 ) THIS is an application under S. 482 of the Cr. P. C,1973 for quashing the proceeding pending before the learned Senior Municipal and Metropolitan Magistrate, 1st Court, Calcutta being Case No. 3007b of 1981.

( 2 ) ON 26-9-81 Dr. S. S. Mondal, Sanitary Officer and Borough Health Officer, Corporation of Calcutta, filed a complaint against petitioner Sm. Rajmohini Jhamb under S. 437 (1) (b) read with S. 537 of the Calcutta Municipal Act,1951 before the learned Municipal Magistrate, Calcutta " for using or permitting to be used premises No. 1, Alipore Road, Calcutta for selling storing, packing, pressing, cleaning, preparing or manufacturing by any process whatever workplace run with electricity which is in the opinion of the Corporation dangerous to life, health or property and likely to create nuisance without a licence from the Commissioner for the year ending on 31st March,1981 in contravention of S. 437 of Act XXXIII (W. B. C.) of 1951. "

( 3 ) ON receipt of the complaint, the learned Municipal Magistrate took cognizance of the offence and issued summons on the petitioner requiring her to appear before him on 25-1-83. Being aggrieved, the petitioner moved this Court in revision and obtained the present Rule.

( 4 ) MR. Ghosh, the learned Counsel for the petitioner, has urged three points before us : (1) Complainant Dr. S. S. Mondal, Sanitary Officer and Borough Health Officer was not competent to initiate the prosecution or file the complaint in the absence of valid delegation of power by the Commissioner to the complainant. In the absence of any such valid delegation the prosecution is not maintainable in law and cognizance taken by the learned Magistrate is bad. (2) The allegations in the petition of complaint in a printed form are vague and unintelligible. The complaint does not specify as to which particular purpose for which the premises is alleged to be used is in the opinion of the Corporation dangerous of life, health or property or likely to create a nuisance. The learned Magistrate even at this stage of issuing process was required to apply his mind to the allegations in the complaint and if the learned Magistrate had applied his mind to the contents of the complaint he would not have issued the process at all as the same is not make any sense and the allegations are inconsistent with each other. (3) In respect of the business of petrol pump which is carried on at the said premises under the name and style of 'puspa Bagh Service Station' there is not only a trade licence issued by the Corporation of Calcutta but also there are other statutory licences issued by the State Government and the Central Government including the Explosive Licence. There is no requirement of any Health Licence under S. 437 of the Calcutta Municipal Act, 1951 nor was any licence ever required to be taken by the Corporation of Calcutta. The Corporation of Calcutta has not issued any Public Notification notifying the purpose which was considered to be dangerous under S. 437 (1) (b) by the Corporation. In any event, the running of a petrol pump which is done after obtaining licences from all the concerned authorities cannot be regarded as one of the purposes mentioned in S. 437 (1) (b) of the Act and any opinion of the Corporation of Calcutta to the contrary is unreasonable and capricious and not sustainable in law.

( 5 ) THE first point that has been urged by Mr. Ghosh has considerable force and merits acceptance. The relevant portion of S. 585 of the Calcutta Municipal Act, 1951 reads as follows :"585 The Corporation may - (a) take or withdraw from proceedings against any person who is charged with - (i) any offence against this Act or any rule or by-law made thereunder : (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. "

( 6 ) UNDER S. 585 read with Ss. 28 and 30, it is the

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