TRIKAMDAS UDESHI Vs. BOMBAY MUNICIPAL CORPORATION

JUDGEMENT

(1.) A question of considerable public importance arises on this revision application. The petitioner boarded a tram-car belonging to the Bombay Electric Supply and Transfer Undertaking of the Bombay Municipality at Crawford Market. and got out at Bori Bunder without purchasing a ticket. He was thereupon called upon by the Traflfc Supervisor to pay a sum of Rs. 5 as penalty. The petitioner paid the fine and obtained a receipt for it from the Supervisor. He then filed a suit in the Small Causes Court to recover this amount as having been paid under coercion. The Small Causes Court dismissed the suit. It is from that order that this revision application is preferred,

(2.) ON 11-9-1950, the General Manager of the Bombay Electric Supply and Transport Undertaking issued a notice delegating certain powers under Section 68-B, Bombay Municipal Corporation Act to certain officers in respect of certain functions mentioned in the notice, and one of the powers delegated to a Traffic Supervisor was the power to compound any offence against the Bombay Municipal Corporation Act which under the law at the time in force may legally be compounded; this was Under Section 517 (1) (b) and the power was limited to the following Offences, viz. , infringement of Tramways and Omnibus by-laws and avoiding or attempting to avoid payment of fares only. What is contended by the petitioner is that the General Manager had no power to delegate, that even if he had the power, the delegation was illegal, that the petitioner had committed a non-com-poundable offence by failing to purchase a ticket for travelling in the tram-car, and the Municipality had no power in law to compound a non-compoundable offence.

(3.) NOW, in order to understand these contentions it is necessary to look at the scheme of the Bombay Municipal Corporation Act and the bylaws made thereunder. Section 460-H of the Act deals with the levy of fares and charges for transport services, and Clause (4) provides that if a person does not pay the fare, he shall be punished for the offence with fine which may extend to Rs. 10. Then by-laws have been framed under Section 461a of the Act and the relevant by-laws are 12 and 39. By-law 12 provides that no person travelling in any car shall avoid or attempt to avoid payment of his fare; and by-law 39 imposes a penalty not exceeding Rs. 25 for a breach of by-law 12. Mr. Mistree has fairly conceded that looking to the terms of Section 460h (4), by-law 39 is clearly incompetent. When the statute itself imposes a penalty which is not to exceed Rs. 10, a by-law cannot increase the penalty to Rs. 25. But the more important aspect of Sub-section (4) of Section 460h is that it creates an offence and provides a penalty, and under the Criminal Procedure Code when a special law creates an offence, that offence is non-compoundable. Therefore, it is clear that the offence which Section 460h (4) creates is a non-com-pondable offence. It is difficult to understand how the General Manager came to delegate the power to compound this offence under Section 68b. That section provides that any of the powers, duties or functions conferred or imposed upon or vested in the General Manager by any of the sections, Sub-sections or clauses mentioned in Sub-section (2) may be delegated, and when we turn to Sub-section (2), Section 517 (1) (b) is not one of the sections mentioned therein. But the section also provides for delegation with the previous sanction of the Bombay Electric Supply and Transport Committee any other powers, duties or functions conferred or imposed upon or vested in the General Manager, and the powers and functions of the General Manager under Section 517 (1) (b) have been delegated with the previous sanction of the Bombay Electric Supply and Transport Committee. The notice mentions Section 517 (1) (b) of the Act in respect of which power has been delegated to the Traffic Supervisor. Therefore, the powers and the functions of the General Manager under Section 517 (1) (b) have been properly delegated to the Traffic Supervisor; but that power is to compound any offence against the Act which under the law at the time in force may legally be compounded, and the notice to which reference has already been made does repeat the words of this Sub-section. Therefore, what can be compounded is an offence which under the law at the time in force may legally be compounded. Therefore, to my mind it is quite patent that the Traffic Supervisor had no power to compound this offence which had been committed by the petitioner. I fully realise the practical difficulty in the way of the Bombay Electrie Supply and Transport Committee if it had to file prosecutions against every passenger who travels without a ticket. But this practical difficulty should be got over not by resorting to powers which the Municipality does not possess, but by the necessary amendment of the law.