Madras High Court
S.P. Thiruvengadasami Naidu vs Municipal Health Officer on 24 February, 1949
Equivalent citations: 1949CRILJ823, AIR 1949 MADRAS 547
JUDGMENT Govinda Menon, J.
1. This case came to be heard before this Full Bench on a reference made by one of us {Govinda Menon J.) and Govindarajachari J, a3 the matter is of great importance and the authorities on the point are conflicting.
2. The facts are simple and do not admit at any doubt. The petitioner was prosecuted before the Court of the Second Class Bench of Magistrates, Karaikudi, for an offence under Section 249 read with Section 313 of the District Municipalities Act, in that he, on 14th August 1946, was running a rotary oil engine without a licence from the Karaikudi Municipality and despite the refusal by the said municipality to issue a licence for the year 1946-47. A particular area within the confines of the Karaikudi Municipality had been declared a "residential area" under Section 89 (1), Madras Public Health Act, and the same was published in the Itamnad District Gazette on 24th March 1943. The result of such a notification ia that in that particular area the running of -an oil engine even though it was existing before was prohibited unless a licence for that purpose was given by the municipality. Under Section 92, Madras Public Health Act (Hi [3] of 1939) the consequences of such a notification under Section 89 are : l) that the construction Cr establish, ment if any new factory, workshop Cr workplace, Cr the carrying on of any new offensive trade in the areas specified in the notification shall be absolutely prohibited; and (a) that in the ease of any factory, workshop Cr workplace in existence at the time when the notification came into force Cr of any offensive trade in existence at such a time, the restrictions, limitations and conditions, if any, specified in the notification, shall be observed in the areas so notified. The oil engine in question was in existence in this area long before it was notified as a residential area and therefore it is that Sub-clause (b) of Section 92 is attracted. On 26th February 1946, the petitioner applied to the municipality for the issue of a licence for running the oil engine during the year 1916-47 and on 8th March 1946 Orders were passed refusing the licence for the year aforesaid and the said Order was served on the petitioner on 9th March 1946: vide Ex. A-2. The grounds for the refusal of the licence are : l) The premises were untidy and there were jut holes and broken flooring; (2) Beds and tins were stored in the premises; and (3) the premises were situated in the residential area. The petitioner again applied for modification of the Order and for renewing the licence for running oil mills by machinery of 35 H. p. oil engine. This again was refused by Order dated 22nd March 1946, by which the Municipal Health Officer stated that with reference to the petitioner's application for licence and the office Order served on him on 9th March 1946, the licence was refused for running four oil mills by machinery of 26 H. p. oil engine, Even though the permission to run the oil engine was refused, the petitioner continued to run it with the result that the prosecution was launched under the sections mentioned above. The petitioner's defence in the Court of first instance was that the Order refusing the licence was wrong and since he had applied under Section 321 (ii), District Municipalities Act, which provides that if a Municipal Council accepted the pre-payment of the fee for a licence along with an application and the refusal to issue the licence was not communicated to the applicant within SO days after the receipt by the authority of the application, then, the application shall be deemed to have been allowed for the year mentioned in the application and subject to the law, rules, by-laws, etc. The petitioner contended that the refusal of the licence was wrong and the municipal authorities should have granted the permission and therefore since no valid refusal was communicated to him within 30 days after the receipt of the application by the authority, he was entitled to run the oil engine. The trial Court held that the petitioner had not proved by Oral or documentary evidence that he took out a licence and since he ran the oil engine after the licence to run it had been refused he was guilty of the offence and a fine of Rs. 20 Cr in default Simple imprisonment for two days was imposed on him. On appeal, even though the Additional District Magistrate of Devakottai referred to a decision of Devadoss J. in Chairman, Municipal Council, Chidambaram v. Thirunarayana Iyengar 61 Mad. 876 : A. I.R. (16) 1928 Mad. 847: 29 Cr, l, J. 710 he was of the view that the executive authority had power to refuse to renew the licence and that as all the reasons for refusal to renew the licence were not known and since it was legal and within the powers of the authority to refuse the renewal, he confirmed the conviction and sentence.
3. The petitioner's contention both before the Division Bench and before us is the same, viz., that the criminal Court before it imposes a punishment for an offence like the one in question, should go into the merits of the reasons for the refusal and find out whether on the facts and circumstances the Municipal Council was justified in refusing the licence. In other words, the petitioner's contention is that the criminal Court has power to find out whether the municipal authority acted rightly Cr wrongly in refusing the licence, thereby constituting the criminal Court as a 3Crt of appellate authority in finding out the correctness of the Order before the accused person could be found guilty. The learned Public Prosecutor on the other hand contends that it is not open to the criminal Court to reopen the whole matter in Order to ascertain whether the refusal of the license was justified on the material facts before the municipal authority. This question as well as allied and similar subjects had been considered in this Court on many previous occasions and on account of the difference of view among the various Division Benches and single Judges of this Court, the matter has now to be considered in detail.
4. As a prelude to the consideration of the case law on this topic, it is advisable to notice the various provisions of the Madras District Municipalities Act (V [5] of 1920) and the Madras Public Health Act (111 [8] of 1939) which have a bearing on the subject at hand. Chapter xll of Act V [5] of 1920 is headed "Licence and Fees" and Section 249 is the initial section under a sub-beading "Industries and Factories." This section lays down that a Municipal Council may publish a notification in the district gazette... that no place within municipal limits . . . shall be used for any one Cr more of the purposes specified in Schedule v without the licence of the executive authority and except in accordance with the conditions specified therein, Schedule v mentions the purposes for which the premises may not be used without a licence under Section 249; and purpose (g) refers to "making soap, dyeing, boiling Cr pressing oil, burning bricks, tiles, pottery Cr lime." Section 249, Sub-section (3) states that the executive authority may by an Order and under such restrictions and regulations as he thinks fit, grant or refuse to grant such licence. Sub-section (i) mentions the duration of the licence and Sub-section (5) states that an application for renewal of such licence shall be made not less than SO days before the end of every year. I have already referred to Sub-section (11) of B. 821 to the effect that if within 80 days of the acceptance of the licence fee the municipal authority does not refuse the licence, the applicant shall proceed as if the licence had been granted. Section 321 (4) lays down that every Order of a municipal authority refusing a licence Cr permission shall be in writing and shall state the grounds on which it proceeds. The Order of the executive authority is not final, because Section 320 (S. 322) provides an appeal to the Municipal Council from any Order of the executive authority granting Cr refusing to grant a licence or permission. The executive authority is denned in Section 8 (3 c) as the Commissioner of the Municipality, or if there is no Commissioner in charge, the chairman. Beading this along with Section 16, Madras Public Health Act, it is Been that the Health Officer of a local authority shall perform such of the functions, and discharge such of the duties of its executive authority in regard to Public health matters under any of the provisions applicable to such local authority contained in the District Municipalities Act, subject to such appeal and control as the Government may, by general or special Order, determine. Therefore the Municipal Health Officer in this case is the proper executive authority under the District Municipalities Act to grant or refuse to grant the licence. Another provision of the District Municipalities Act to which reference has to be made is Section 813 (1) (a) which is to the effect that whoever contravenes any provision of any of the sections or rules specified in the first column of Schedule VII . . . shall on conviction be punished . . . Son. VII provides that in contravening Section 249 (l) of the Act by using a place foe any of the purposes specified in Sob. V without a licence Cr contrary to a licence (boiling Cr pressing oil), the offender shall be punished with a fine of Rs. 100.
5. It is common ground that on the refusal of the executive authority, which in this case was the Municipal Health Officer, to renew the licence, no appeal was preferred by the applicant (petitioner) to the Municipal Council as provided for in Section 322 of the Act. What the petitioner did was to ignore the refusal of the licence on the ground that the action of the Health Officer was wrong and unjustified and to continue to run the oil engine as if no refusal of licence ever took place. What is now contended by his learned Counsel is that the Order of the Municipal Health Officer dated 8th February 1946 refusing to renew the licence was an arbitrary exercise of power not referable to a proper appreciation of the facts and circumstances existing on the occasion and therefore it can be ignored. According to Mr. Viraeami, the learned Counsel for the petitioner, the executive authority was influenced by extraneous and irrelevant considerations and his refusal to renew the licence is a wrong exercise of the powers and as such amounted to the authority not functioning at all. He states that the authority being a Public body ought to exercise the discretion in a judicial manner weighing the pros and cons properly and to come to a correct conclusion on the facts. If no such thing was done, then the Order of the executive authority need not be taken note of and can be considered as non est. He further contends that on the authority of the decision in In re, Smith 45 M, L. J. 731 : A. I.R. (11) 1924 Mad. 3S9: 25 Cr. L, J. 584), it is not obligatory upon the petitioner to exhaust his remedy by means of an appeal before transgressing the Order which according to him is wrong Cr illegal.
6. We have, therefore, to consider the limits of the power which a criminal Court possesses when it is approached by a local body for punishing a person for acting in violation of a certain per. mission Cr licence either granted Cr refused by it. Before we discuss the conflicting decisions of this Court on the point, it is necessary to state briefly, as we understand it, the rules of practice and procedure a Public or a quasi Public body ought to conform to before refusing a licence or permission which it has power to grant or refuse, Though in India we have no bodies like the Licencing Justices as are existing in England, the functions of such bodies are similar to the functions of either the local, or municipal, Cr other statutory bodies created by Legislative Acts in England. In Sharp v. Wakefield 1891 A. C. 173 : 60 L, J. M. 0, 73, Lord Halsbury L. C. lays down the rules and canons to be observed by Licencing Justices in the following terms:
An extensive power is confided to the justices in their capacity as justices to be exercised judicially; and 'discretion' means when it is said that something is to be done within the discretion of the authorities that that something is to be done according to the rules ( reason and justice, not according to private opinion;... It is to be, not arbitrary, vague, and fanciful, but legal and regular, and it must be exercised within the limit, to which an honest man competent to the discharge of his office ought to confine himself ....
In the circumstances of that case the House of Lords held that the Licensing Justices were justified in exercising the discretion in refusing the renewal of the licence. The distinction between the Licensing Justices and Magistrates in England and the municipal or local bodies here is this: From the decision of the Licensing Justices, as application to quash the Order lay to the Queen's Bench Division whose decision was subject to an appeal to the Court of Appeal and therefrom to the House of Lords. Therefore it is plain that in England the Licensing Justices figure as judicial functionaries and not as they do in this country; and when their actions can be traced to judicial authority, an appellate Court has necessarily to find out whether judicial actions were done according to law. Even be we are of opinion that even local, municipal, Cr other statutory bodies entrusted in India with the duty of granting Cr refusing licences or permits ought to function .as Lord Halsbury L. C. gays, not arbitrarily, vaguely, Cr fancifully, but in a legal and regular manner, Whether they have functioned like that can be ascertained by the appellate authority, which in this case is the Municipal Council, and the decision of the Council on such appeal according to Section 322 (a), District Municipalities Act, shall be final. It is the function of the Municipal Council to correct, modify, or set aside the Order of its executive officer by using its appellate power just as the Licensing Magistrates or Justices in England can be corrected by the Divisional Court of the King's Bench and the Court of appeal there. from. The decision in Sharps v. Wakefield 1891 A. C 173 : 60 L. J, M. C. 73, referred to above on which the learned Counsel for the petitioner placed reliance is a useful and helpful guide only where the appellate authority from the executive authority of the municipality is approached to exercise its appellate powers. When a criminal Court has to find out whether any person has contravened any provisions of the section Cr the rules specified in Sob. v. District Municipalities Act, it cannot scrutinise the Order of the executive authority of the municipality as if it is sitting as a Court of Appeal over the municipality.
7. We have now to notice the conflicting decisions of this Court. The trend of modern authority is to the effect that it is not competent for a criminal Court, when a person is prosecuted for running a factory or doing an act, without a licence for which a licence is necessary, to find out whether the refusal of the licence was justified on the facts. In Commissioner, Dindigul Municipality v. V. Rajamani Iyer 1941 M. W. N. 1073 : A. I. R. (29) 1942 Mad. 279, Lakshmana Rao J. was of opinion that when the executive authority of a Municipality declined to renew licence, it was not open to the criminal Court to acquit the accused on the ground that the Order of refusal is not valid. In that case the trial Court acquitted the accused of an offence under ss, 249 and 318, Madras District Muncipalities Act, for running a coffee hotel and preparing and selling sweetmeats in unlicensed premises when his application for renewal had already been rejected. The reason given by the trial Court was that the executive authority had, not applied his mind to the application for renewal and had not inspected the premises as he wag bound to do to satisfy himself that they were really dirty so as to warrant the refusal to renew the licence. There-fore the refusal to renew was treated as invalid and the Court was justified in going into the validity Cr otherwise of the Order. Lakshamana Rao J. disagreed with the reasons given by the trial Court holding that it was not competent for a criminal Court under the circumstances to go into the question regarding the correctness Cr otherwise of the reasons for refusing to renew the licence. In the Public Prosecutor v. A.O.A. A. Abdul Hamid Bowther CrI. Ap. No. 416 of 1946, our learned brother Yahya Ali J. took the same view though he did not refer to the judgment of Lakshmana Rao J. Relevant portions of Yahya Ali J.'s judgment are as follows:
The fact that the license was refused and the mill was run after the expiry of the period of licence is not disputed. The Sub-Magistrate, however, took it upon himself to canvass the reasons which actuated the President of the Panchayat Board to refuse the licence. Clearly he was not entitled to do that. There are appellate authorities constituted under the statute itself, who are empowered to deal with that aspect of the matter.
On this reasoning, the Order of acquittal was set aside. To practically the same effect is an earlier decision in Krishnaswami In re, 21 M L.W. 2B4 : A.I.B. (12) 1925 Mad. 476: 26 Gr. L. J. 681). In that case Krishnan J. was of the view that where an accused was convicted or having contravened Section 166(1), Local Boards Act, by having plied his Motor car without a licence, after he had applied for the licence but the same was refused to him, and the Order of refusal had also been communicated and it was contended that the President was actuated by personal malice and ill-feeling and hence the case should be treated as one under B. 212;(11) of the Act in which no Order had been passed, that the conviction was right even if the president was be actuated by any personal feelings and that the accused could only be entitled to claim damages on establishing that fact. A criminal Court cannot treat the refusal of a licence as one under Section 212 (l1), Local Boards Act (equivalent to Section 321 (ll), District Municipalities Act) to the effect that the licence should be deemed to have been granted. In doing so, the learned Judge observed thus:
We are not concerned at present with the question whether that Order was properly passed or not. We have only to see if the provisions of law have been complied with. It is true Clause 4 of 8. 212 requires the grounds to be stated, on which the Order of the President is passed; but the grounds have been stated by the President in his Order. As held by the Bombay High Court, in a similar case, arising under the City of, Bombay Municipal Act, the fact that the person authorised to grant or refuse the licence did not exercise his discretion reasonably in refusing to grant the licence is not one that could afford an answer to a charge that the accused had done something for which a licence wag necessary and for which he had no licence. No authority has been brought to my notice to the contrary. I am, therefore, prepared to follow the view taken by the Bombay High Court; and I bold that the conviction is correct.
8. None of the three cases above referred to makes mention of a large body of case law which have preceded them to the effect that it is open to a criminal Court under certain circumstances to enquire into and find out the correctness Cr legality of the Order of the executive authority of the local body refusing to grant a licence. On a reference to the decision in Commissioner, Dindigul Municipality v. Bajamani Iyer 1941 M. W. N. 1073 : A. I. R. (29) 1912 Mad. 279, it is Been that the trial Court in that case had referred to the decision of Devadoss J, in Chairman, Municipal Council, Chidambaram v. Tirunarayana lyengar 51 Mad. 876 : A. I.R. (15) 1928 Mad. 847: 29 Cr. L. J. 710 of which notice had already been taken of. But Lakshmana Rao J. in his judgment does not even notice it. As early as 1892, a similar question arose before Muttusami Ayyar and Best JJ. in Queen-Empress v. Veerammal 16 Mad. 230. The facts of that case were as follows: A landowner in a municipality, subject to the District Municipalities Act then in force, which did not differ in salient aspects regarding the question of licence from the present Act, applied for a building licence under Section 180 of the Act then in force. The municipality had resolved that a portion of the land was required for widening a Public lane, and, therefore, Ordered the applicant not to build upon that portion but to abstain from doing so and granted a licence for the building to be erected on the remaining portion. The landowner, however, erected a building even upon the interdicted portion of the land whereupon the municipality, having received a refusal from the landowner to demolish the structure built upon the portion for which no licence was given, prosecuted the landowner under the relevant sec tions of the Act for building upon a piece of land without obtaining the licence. Muttusami Ayyar and Best JJ. came to the conclusion that the prosecution was unjustified because the Order of the Municipal Council was illegal and consequently no offence had been committed by the landowner. In the course of the judgment Best J. observed that the Municipal Council had no power conferred upon it of depriving an owner of the legitimate use of the land. Section 180 of the Act was intended only to ensure the safety and sanitation of the buildings to be newly erected and what the Council had to consider was the plan of the proposed building and the grounds on which the same can be disapproved. The learned Judge further observed that against the Order of the Municipal Council there was no appeal allowed by the law. The civil Courts were empowered only to award damages and cannot cancel the licence. In observing thus, the learned Judge was of opinion that the trial Court should have considered the legality of the Order of the Municipal Council and declined to convict on his find- ing it to be illegal. Since the prosecution was not based on a legal Order, the conviction was held unsustainable. This case does not go to the extent of holding that a criminal Court can canvass the correctness of an Order of the executive authority of the Municipal Council refusing to grant a licence where a licence had been applied for. On the very face of it, a municipality cannot refuse a licence to build on a particular plot of land on the ground that that piece of land is required for a certain object without previously taking the necessary steps for acquiring the land for that purpose Cr otherwise. There, fore, so far as this decision goes, the Order which, the municipality complained was transgressed by the landowner was not only illegal but ultra vires the powers of the municipality and without jurisdiction. The reason for coming to the conclusion that the refusal of the licence was illegal is stated to be that under Section 180 of the Act the Municipal Council was not empowered to deprive the owners of the legitimate use of the land, because the section only meant to confer powers to ensure the safety and sanitation of buildings. The next case to which our attention was drawn is the. judgment of O'Farrell and Miohell JJ. in Subramania Aiyar v. Asirvadam Pillai 9 M. L. J. 337. In that case an application was made to the municipal council for a licence to erect a building with a thatched roof and the same was returned under a misapprehension that the land on which it was proposed to build was Public road. Without heeding to this refusal the applicant erected a building on the land with a tiled roof. When he was prosecuted for failure to take out a licence before constructing the building, the answer was that the sanction had illegally been refused and that a roof having been mentioned in the application, the mere change in the material of the roof did not make the building substantially different from that applied for so as to constitute an offence under Section 180 of the Act. The principle on which this decision was based turns out to be that the prohibition by the Municipal Council from having the building erected was due to the erroneous belief that the land sought to be built upon was Public land. Therefore, here also, the refusal was not on the merits of the facts contained in the application but on a thoroughly extraneous matter which had no bearing on the subject before the Council. The refusal to grant the licence was due to a mistake which went into the root of the matter and, therefore, the refusal was an act without jurisdiction and was void. The next ease on which reliance was placed by the petitioner's counsel is reported in In re Sesha Prabhu, 42 M. L. J. 149 : A.I.R. (8) 1921 Mad. 713), and deals with Section 219 of the present Act. There the accused was convicted and sentenced for the offence of storing and selling grain within the Cannanore Municipal limits without the licence of the Chairman under Sections 249 and 388 (b) of Madras Act, v [5] o 1920 (the Act now trader consideration), contrary to a notification issued in July 1920 by the Municipal Council constituted under the repealed Act of 1884 purporting to act under Section 249 of the new District Municipalities Act, V [5] of 1920, some 2 months before the new Act was put in force. The learned Judges held that the whole procedure was void ah initio and that no conviction can be sustained, because of the notification issued by a Council constituted under an Act which did not authorise it before the, new Act which created the offence came into force. Both the learned Judges were of opinion that the action of the Council in notifying some 2 1/2 months before the new Act was brought into force was devoid of any jurisdiction and was, therefore, utterly void. Such a notification is, in our opinion, nothing but a waste paper because the body that issued it was not empowered to do so under the law. It was also held that the circumstance that the accused was in no way prejudiced was immaterial when the question arises in connexion with the application of a penal provision, as a strict construction of the law is required in such a case.
9. The next relevant case on this part of the contention is the one reported in In re Ellam-mal, 53 m. L. J. 810 : A. I.R. (16) 1928 Mad. 164: 29 Cr. l. J. 126). Section 171 (3), Local Boards Act, xiv [14] of 1920, provided that a panchayat .shall, as regards private markets already law-fully established, grant the licence applied for subject to such regulations as to supervision, inspection and such conditions as to sanitation, drainage, water supply, etc. In accordance with this provision of law, the owner of a private market which was existing before the commencement of the Local Boards Act, xiv [14] of 1920, applied for a licensed to continue the same and licence was refused by the Panchayat Board on the ground that it considered it undesirable that the market should be kept open there. The petitioner, in spite of this refusal, carried on the private market which was unlicensed, and sold fish in the market. He was convicted by the trial Court for running a private market without a licence. In revision Jackson and Tiruvenkata-chariar JJ. set aside the conviction holding that the Order of the Board refusing the licence was not a legal Order passed in exercise of their powers under the Act. Jackson J. went further and laid down that refusal to function under the Act is not passing an Order under the Act. The Order, in Order to be effective, must be intra vires, and an Order ultra vires is no Order at all. When the statute makes it obligatory upon the panchayat to grant the licence applied for, subject only to the conditions prescribed thereunder, the action of the Panchayat Board in totally refusing the licence cannot be said to be in exercise of the powers under the Act. Such being the case, the Order refusing sanction should be deemed to have no existence whatever; and on this ground it was held that the action of the Panchayat Board, if upheld, would amount to confiscating private rights without compensation, which intention cannot be attributed to the Legislature. Though the Panchayat Board might impose conditions in the interest of Public health in granting the licence, if has no power to refuse the licence totally and, therefore, the refusal of the licence cannot be held to be invalid exercise of the powers conferred under the Act. It is clear that the learned Judges set aside the conviction mainly on the ground that the Order refusing the licence was one not passed in exercise of the powers conferred under the Act. It is difficult to see how the facts of this case can be made to fit in with the facts of the case before us.
10. We have next to consider a few cases on which the petitioner's counsel has placed great reliance and which, on a casual or cursory examination, seem to support his contention. In Chairman, Municipal Council, Chidambaram v. Tirunarayana Ayyangar 51 Mad. 876 : A.I.R. (16) 1928 Mad. 847 : 29 cr. L, J. 710, Devadoss J. had to consider an allied topic. The circumstances which led up to the consideration of the question by Devadoss J. can be shortly stated in the following words: A coffee hotel keeper had a licence for carrying on the business for the year 1926-27. As he had incurred the displeasure of the Chairman for some reasons, notice was issued cancelling the licence. Without caring for Bach cancellation, he carried on the business and was prosecuted for keeping a coffee hotel without a licence as required by Section 249 and sch, v, District Municipalities Act. The Court of first instance acquitted the person complained against, i.e., the hotel keeper, on the ground that the prosecution had failed to justify the Order cancelling the licence with the remit that the Municipal Council came up in revision to this Court to set aside the Order of acquittal, After discussing the merits of the case, the learned Judge came to the conclusion, that, however reprehensible the conduct of the coffee hotel keeper may be in not paying the water tax due to the municipality, that would not be a ground for cancelling his licence to carry on the business of a coffee hotel keeper; and that, therefore, the cancellation of the licence was ultra vires the powers of the Chairman of the Municipal Council. Then the learned Judge proceeded to discuss the question as to whether it was permissible for a criminal Court, which has session of a prosecution like the one in question, to go into the merits of the cancellation. The argument advanced before him by the counsel for the municipality was that it was not open to the Court to go into the validity or otherwise of the cancellation because it is outside the province of the Court trying an accused person for an offence under the Municipal Act to go into the question whether the Order made by the Chairman i3 proper Cr improper. In the discussion of this question, a distinction was drawn between tie case of a refusal of a licence asked for the doing of a thing and the cancellation of a licence which a person had properly obtained. At p. 880 the learned Judge observed that in the case of a refusal of a licence it may be that the Municipal Chairman has some reason for refusing it and it would not be open to the Court to consider whether the reasons were good Cr bad, for no reasonable man who is acting as Chairman would refuse to grant a licence unless he has some reason for refusal. He further observed as follows ;
But if it is patent to the Court that there could have been no reasons, the Court could come to the conclusion that the refusal amounted to not doing what is required by the Act but something which is outside the Act and such refusal might be considered to be ultra vires the Chairman. In the case of a licence which has been granted and which is good for a period it would be ultra vires the Chairman of the Council to cancel it or suspend it not for something which the licensee did in the contravention of the terms of the licence but for something which was unconnected with the licence. In such cases the Court is not prevented, by anything contained In the District Municipalities Act, from holding that such an Act was not within the ambit Cr within the scope of the powers vested in the Chairman of the Council by the Act and, therefore, the reason for doing such an act would not arise for consideration.
The learned Judge also refers in addition, to the case in Queen.Empress v. Veerammal 16 Mad. 280, Municipal Cozmcil, Chicacole v. Seetha-ramayya Naidu 21 M.L.W 280 : A.I.R (12) 1925 Mad. 684: 26 Cr. L. J. 1496 and to the decision of Krishnan J. in Krishnaswami v. Emperor A.I.R. (12) 1925 Mad. 476 : 26 cr.L J. 681. In up. holding the conviction In the last mentioned case, or driving a car without a licence, Krishnan J. observed as follows:
I do not think that his Order can be regarded as an absolute nullity as ia argued and the case considered as one in which no Order has been passed. It may be that the accused can claim damages against the President if he is able to establish that the President exercised his powers under Section 212 not bona fide, but with malice on account of personal ill-feeling against him. That question will have to be considered when a proper case Is brought; but in this prosecution, the accused, in Order to escape punishment, must show that he had a licenes given by the President of the District Board Cr he comes under Clause 11 of Section 212.
In another place Devadoss J. after quoting the above observes that it may be that the refusal to grant a licence may be for proper and valid reasons and the Court cannot go into the validity of the reasons or the expediency of the occasion which necessitated the refusal of the licence and a Court is bound to assume that the chairman has acted properly; but that where he is bound to do a certain thing and he does not do it or where he is not permitted to do a thing and he does it, it canned be said that the Court could not go into the question of the validity of the omission or act especially when a prosecution is launched against a person for violating the illegal Cr ultra vires Order of omission Cr the Act of the chairman. Again he reiterates at p, 885 that where the Order is within the powers of the Chairman of the Council Cr sanctioned by the rules framed under the Act, it is not open to the Magistrate Cr the Court to go into the necessity, expediency Cr the reasonableness of the Order. The learned Judge concluded by holding that in the case before him the Order of the Chairman was ultra vires and, therefore, it was open to the Court to go behind it. We are far from convinced that the facts of that case have any similarity to the present case. Devadosa J. was definately of opinion that in cases where the Order was ultra vires it was open to the Magistrate to go into its validity. But where it is sanctioned by the rules framed under the Act, the Magistrate cannot go into the necessity, expediency or the reasonableness of the Order. During the course of arguments in that case reference was made to the observations of the Full Bench in Muthu Bala Chettiar v. Chairman, Madura Municipality 51 Mad. 122 : A.I.R. (14) 1927 Mad. 961 : 28 Cr. L. J. 974 (F.B.). The Pull Bench had to consider the necessity of taking out a fresh annual licence under Section 249 of the Act when permission to construct Cr establish a factory or instal in any premises a machinery had been obtained under Section 250 of the Act. Agreeing with the view taken in In re Muthu Balu Chetti, 51 M. L. J. 490 : A.I.R. (13) 1926 Mad. 1131: 27 Cr. L J. 1316) by Odgers and Madbavan Nair JJ. and dissenting from the view of Devadoss and Waller JJ. in Madura Municipality v. Muthu Balu Chetti 50 M. L, j, 384 : A.I.B. (18) 1926 Mad. 576: 27 Cr. L. J. 68B, the learned Judges of the Full Bench held that an annual licence under 8. 249 of the Act was necessary. Incidentally it was observed that a Magistrate cannot take cognizance of a plea questioning the validity of the Order disobeyed by the accused. The offence charged there was under Section 338 of the Act and consisted in using a rice mill without the licence prescribed by the rule, bye-law Cr regulation made under the Act. As the necessary rules had been framed in that case, it was held by the Full Bench that it was not within the province of the criminal Court to determine whether such rules have been validly framed a matter which should be left for determination in a civil Court. Aa observed by Devadosa J., the observations of the Full Bench come to this effect, viz,, it is not open to a criminal Court to probe into the terms Cr details of a licence Cr the validity of its terms and this is all that is meant by the observations of the Full Bench. In short, the decision of Devadoss J. distinguishing the observations of the Full Bench, lays down that where the act of the statutory body, whether it be the Chairman Cr a whole Council, is ultra vires and a Court is asked to convict a person for violation of such an Order, the Court is not prevented from considering its legality. But where it ia within the powers of the statutory body or sanctioned by the rules framed under the Act, it is not open to the Magistrate or the Court to go into the necessity, expediency, or the reasonableness of the Order.
11. Practically to the same effect is a more recent ruling where Mockett J. in Ayyar & Co. v. Srinivasalu I. L. b. (1942) Mad. 73 : A.I.R. (28) 1941 Mad. 749: 43 Cr. L. J. 78, was of the view that when there is no provision in the District Municipalities Act either directly Cr by implication to enable the municipality to levy a licence fee for advertisements, the council, which has power to make bye-laws for prohibition and regulation of advertisements in Public streets and parks, cannot levy a licence fee in respect of such advertisements. Basing its authority on Clause 28 of Section 306, the Coimbatore Municipal Council levied a licence-fee on the petitioner for advertising on his bullock cart and by means of a board bung over its roof. For not taking out a licence before the said advertisements were put up the municipal council prosecuted him and the petitioner before the High Court was convicted by the trial Court. In revision Mockett J. held that action of the municipal council in enacting the bye-law was ultra vires because prohibiting and regulating advertisements in Public streets and parks did not imply the power to levy a licence-fee. Here also the decision depended upon the ultra vires nature of the Order Cr bye-law which was not obeyed or adhered to by the party. One of us (Horwill J.) considered a similar question in the case reported in the Public Prosecutor v. Ponnusami Mudaliar 1949.1 M. L. J. 49a : A.I.R. (30) 1943 Mad. 670 : 44 Cr. L. J. 785 where it was contended for the prosecution in an appeal against the acquittal that the trying Magistrate had no power to find out whether the Order of the Local Board which was contravened by the accused therein wag correct or not. The question depended upon the ownership of the land over which the front portion of a verandah extended 'and the trial Court held that though the evidence was weak the matter was of a civil nature and acquitted the accused on that ground. In appeal under Section 417, Criminal P. C, this Court held that the Magistrate cannot avoid his responsibility to go into the question of the owner. ship of the land and decide the dispute as in the best of his ability. It was further held therein that any case launched undo? the encroachment provisions of the Local Boards Act is necessarily . of a civil nature and the Court has to decide whether the land to be encreached upon belonged to the Local Board Cr to the private party. This case is similar in some respects to the earlier one reported in Subramania Iyer v. Asirvadam Pillai 9 M. L. J. 337, where the-question of the ownership of the land had to be decided. If the land belonged to the statutory body Cr to the Crown, then the action of the accused was wrong and he was liable to be punished. If, on the other hand, the land belong. ed to the party himself, the action of the local body was thoroughly without jurisdiction and ultra vires. On account of the particular nature of the dispute, it is incumbent upon the Court to find out whether the action was within the powers of the statutory body or not.
12. We have so far discussed cases where prosecutions were launched for non-compliance with certain directions or Orders of the statutory boy or refusing to take out a licence and matters of such nature. Another line of cases to which our attention was invited relate to civil Actions questioning the validity or otherwise of the Orders or bye-laws promulgated or passed by the statutory body and where the citizen did not conform to such Orders. Subramania Ayyar and Davis JJ. in Somu Pillai v. Municipal Council, Mayavaram 28 Mad. 620, were of the view that the power conferred by the provisions of the District Municipalities Act on the Chair, man of a Municipality to licence places for selling meat etc, only empowered him to consider the propriety of granting Cr withholding the licence in each case and not to enter into agreements which would preclude him from considering any such application except from a particular person Cr persons. It was further held that the power to interfere with the Ordinary rights of citizens will not be inferred in the absence of an express grant unless it be necessarily implied as incidental to the other powers expressly granted or is indispensable to redress the mischief contemplated and advance the remedy given. When the Municipal council entered into a contract with the plaintiff to grant and secure to him the exclusive right of selling fish within the municipal limits of Mayavaram for a period of one year in consideration of the payment of a certain sum of money and a suit for damages was brought on the footing of such a contract, it was held by this Court that such an undertaking by the municipality was illegal and void and the question must, therefore, be gone into in a civil suit. A really instructive case is the one reported in Taluk Board, Bandar v. Zamindar of Chellapalli u Mad. 156 : A.I.R. (8) 1921 Mad. 92, in which the facts were the following: On a report from the District Medical and Sanitary Officer of Krishna that three tanks be. longing to the zamindar of Chelapalli were injurious to the health of the villagers, the President of the Taluk Board, acting under Section 100 of Madras Act, V [6] of 1884, by notice required the owner of the tanks to clean, fence, and fill up the tanks, because on inspection it appeared to him to be dangerous to the health of the people in the neighbourhood. Qa failure to comply with the notice, the Board threatened to fill up the tank and collect the charges from the zamindar. On this notice, a suit was brought for an injunction against the Board restraining it from filling up the tanks as the zamindar did not according to the notice issued. The question for consideration was whether the President of the Taluk Board had authority to act as he did under Section 100 of the Act. It was held that the power conferred under Section 100, Local Boards Act, though a very wide power, must not be exercised for ulterior purposes, Cr in a capricious, wanton and arbitrary manner, and if so used, can be controlled by the civil Courts and as the Order in question passed by the Board was one such, it should be set aside by the civil Court. In this case the finding was that the tanks became insanitary on account of the action of the Taluk Board itself in allowing drainage water to escape into the tanks. AbdurRahim J. at p. 168 observes as follows:
The rulings to which we have been referred show that ii there were materials before a local authority to come to such a conclusion it is not for the civil Courts to enquire into the sufficiency or otherwise of those materials. It is for the board to decide upon the evidence whether a certain tank is dangerous or injurious to the health of the neighbourhood, and when such decision Is arrived at it la not for the Court to interfere with it on the ground that the Court would have come to a different conclusion.
But as stated above, the learned Judge held that if the decision was arrived at in a capricious, wanton, arbitrary Cr unreasonable manner, the Court can interfere. Oldfield J. agreed with the same view and followed a dictum of Farewell L. J. in Rex v. Board of Education 1910-2K, B. 163 at p. 179 : 79 L. J. K. B. 596, which is in the following terms:
If the tribunal (Public body) has exercised the discretion entrusted to it bona fide, not influenced by extraneous Cr irrelevant considerations, and not arbi- trarily or illegally, the Courts cannot interfere; the; are not a Court of appeal from the Public body, but they have power to prevent... the refusal of Its true jurisdiction by the adoption of extraneous considerations in arriving at its conclusion Cr deciding a point other than that brought before it, in which cases the Courts have regarded it as declining jurisdiction.
In Rex v. Board of Education 1910-2 K. b. 165 : 79 L. J, k. B. 595, Cozens Hardy M. E. observed at p. 174 that if the decision of the statutory body is based on a wrong interpretation of the statute, it is not absolute in the sense that no Court can interfere with, Cr review it. In all matters of fact not involving a wrong construction of a statute, the decision of the Board of Education which was the statutory body in that case was final. But where the decision was so perverse as really to amount to a nonexercise of jurisdiction entrusted to the Board, the Court can interfere by issuing a writ of certiorari. There are other passages also than the one already quoted by Oldfield J. in the judgment of Farewell L. J. where observations of a similar nature can be found. It seems to us that the English Courts have considered that their power to interfere in proceedings brought to eet aside Orders of statutory bodies by the exercise of prerogative writs has been interpreted as more in the nature of a revisional exercise in questions of jurisdiction than as an appellate authority reviewing evidence.
13. The decision of. Stone J. in Venkata challam v. Commissioner, Corporation of Madras 65 M. L. J. 860 : A.I.R. (21) 1934 Mad, TO was based on a motion for the 'issue of a writ of certiorari to' the Commissioner of the Corporation of Madras, for the quashing of an Order in the matter of issuing a licence for a condiment factory. The learned Judge held that the Order of the Commissioner refusing to issue the licence for the carrying on of the factory and directing the party to close the business was one made without any statutory Cr proper authority and should be quashed. Alter discussing the various provisions of the City Municipal Act and the powers and rights of the Corporation as well as its Standing Committee, the learned Judge came to the conclusion, on an application for a writ of certiorari, that the action of the Commissioner was ultra vires and without jurisdiction. Similar observations regarding the powers of a civil Court to set aside Orders pas3ed by statutory bodies are found in Corporation of Madras v. Madras Electric Tramways Ltd. 51 Mad. 864 : A.I.R. (18) 1931 Mad. 162. It is, therefore, clear that the actions of a statutory body can be questioned in a civil Court and to some extent the wrong interpretation put upon laws and regulations by the statutory body can be corrected in proper civil proceedings taken by parties- to rectify the mistakes committed by the statutory body.
14. It is necessary to refer to two more decisions which, though they do not relate to prosecutions for carrying on business without taking proper licences, were concerned with the validity Cr otherwise of bye-laws and how far a criminal Court can consider such matters. The decision in Satyanarayana v. H, B. Yorke A. I.R. (20) 1988 Mad. 148 : 84 Cr. L. J, 26, is a ease o that kind. Bardswell J., after a review and discussion of the relevant case-law on the subject was of opinion that a bye law or any rule or Order of the kind, as to the taking out of a licence, is not bad merely because the licence fee is excessive, The question of the legality of Ordering that a licence should be taken out and that of the reasonableness Cr unreasonableness of the fees charged for such a licence, are separate and independent questions, the legality of the Order not being dependent on the fees being reasonable. The reasonable and equitable nature of a bye-law framed by the local body is a matter open to the criminal Courts to consider when offenders against the bye. laws are put up for prosecution before them. The learned Judge further held that where the licence fee levied is excessive and cannot be justified, the Court will refuse its summary recovery under the provisions of the Local Boards Act. This was a case where the prosecution was launched for failure to take out a licence for manufacturing certain arrack with machinery, etc., and the learned Judge considered the question of the reasonableness Cr otherwise of the bye .law passed. The learned Judge referred to the judgment of Wallace J. in Kunhamlu v. Local Fund Overseer, Chirakkal 1932 M. w. N. 873, in a case referred to him on a difference of opinion between Waller and Krishnan Panda-lai JJ, The principle underlying this decision is that when a criminal Court is approached by a statutory body for the realisation of a licence fee by proceedings of a summary nature, it is open to the Court to find out whether the licence fee levied is so unreasonable that its summary recovery should not be Ordered. A distinction has to be drawn regarding the powers of a criminal Court when its machinery is sought by the statutory body for recovering a licence fee, a tax Cr tithe, and cases where a citizen is prosecuted for .carrying on a business Cr industry without a licence where the statutory body .rightly Cr wrong, ly, but bona fide, refused the licence. In the former ease it ia open to the Court to weigh the evidence and find out whether the Statutory body was justified in levying an unreasonable fee. But in the latter case where the Statutory body acted bona fide and honestly considering the materials before it, even if on the same materials the Court would have come to a different conclusion, it is not open to the Court to sit in judgment over the deliberations of the statutory body as if there was an appeal to it. But, as we have already , shown by the cases discussed supra, where the matter is one of jurisdiction Cr ultra vires nature of the proceedings, it is open to the Court to go into the validity of the proceedings.
15. The only other case which has some relevancy to the question under consideration is a Full Bench decision reported in Ramaswami v. President, Taluk Board, Tadepalligudam 59 M. L. J. 846 : A.I.R. (17) 1930 Mad. 766 : 31 Cr. L. J. 1008 (F.B.), where Curgenven J., delivering the opinion of the Full Bench observed that when a Local Board moves a Magistrate to recover a penalty for an alleged encreachment on land be. longing to the Board, the defaulting party can plead that there was' no encreachment at all and the Magistrate can go into the question whether the alleged encreachment was true Cr not and whether the imposition of the penalty was justified Cr other, wise. Here also the question is one of jurisdiction because if there was no encreachment at all, the action of the Board in levying a penalty is, on the face of it, void. The conflicting views which were prevalent before that, as manifest in the reported cases, viz Ramachandra Servai v. President, Union Board, Karaikudi 49 Mad. 888 : A.I.R. (12) 1925 Mad. 1016 : 27 Cr. L. J. 97; Bangasarao v. Swaminatha Aiyar 27 M. L. w, 320 : A. I. R, (15) 1928 Mad. 495: 29 Cr. L. J. 389 and Local Fund Overseer, Devakotta v. Subramania Chetti 39 M. L. T. 205 : A.I.R. (14) 1927 Mad. 1113 on the one hand to the effect that the Court cannot in such matters go into the merits of the case and those exemplified by Union Board of Paramakudi v. Chellasami Tevar 1926 m. w. n, 676 : A. I.R. (13) 1926 Mad. 1068: 27 Cr. L. J. 1187 and Sayid Mustapha Saheb v. Union Board, Kaveripatnam 1926 M, w. n. 678 : 97 I. C. 812: 27 Cr. L. J. 1180 on the other that under such circumstances it was open to the accused person to raise the question whether the encreachment was true Cr not, were discussed before the Full Bench and if was held that the correct view was that laid down by Phillips and Madhavan Nair JJ. in In re Gopayya, 61 Mad, 866 : A.I.R. (16) 1928 Mad. 682: 29 Cr. L. J. 681) wherein they dissented from the opinion of Wallace and Devadoss JJ., in Ramachandra Servai v. President, Union Board, Karaikudi 49 Mad. 888 : A.I.R. (12) 1925 Mad. 1015 : 27 Cr, L. J. 97. During the-course of the judgment, the Full Bench observed that it was not disputed before them that where a prosecution has been instituted for failure to comply with the terms of a notice, it is competent to the Court, in disposing of the case, to undertake an enquiry whether the notice was validly issued. We are not satisfied that the statement of the law so broadly stated can be accepted. To the extent to which the Fall Bench was engaged in considering the question referred to it, we find no difficulty in accepting their view, because as stated already when the local body wants to recover a sum of money, which sum was contingent upon the satisfaction of conditions laid down by the provisions of the statute, then it would be legal to levy the amount if such conditions are satisfied; as in that case the question of encreachment. In view of the pronouncement of the Full Bench above referred to, it is unnecessary to consider in detail the cases discussed in that judgment for we do not think it necessary to dilate more upon this topic.
16. Two recent decisions of single Judges of this Court relating to prosecutions for offences under S. lfi (p), Madras General Sales-tax Act, wherein the question of burden of proof on the prosecution to establish affirmatively that, the accused was liable to pay the tax was considered and decided in favour of the accused, were quoted before us, the earlier of them by Kuppuswami Ayyar J,, in Public Prosecutor v. Ehader Khan 1946-2 M. L. j. 461 : A.I.R. (34) 1947 Mad, 821: 48 Cr. L. j. 401 and the later by Yahya Ali J,, in Public Prosecutor v. Chakka Kondappa 1947-1M. L. J. 317 : A.I.R. (34) 1947 Mad. 397. We do not think that these cases are very helpful in the consideration of the present question. All that was decided in those cases was that just like any other criminal case the prosecution should prove affirmatively that the tax is due. The learned advocate for the petitioner referred to Section 5 (2), Criminal P. C,, laying down that all offences under any law other than the Indian Penal Code shall be investigated, enquired into, tried and otherwise dealt with according to the same provisions but subject to any enactment for the time being in force regulating the manner Cr place of investigating, inquiring into, trying Cr otherwise dealing with such offences. Reference was also made to Sections 29 and 261 (b) of the Code, From these he argued that the Code does not place any restriction upon the powers of the Court in the matter of an enquiry Cr trial regarding an offence committed against laws other than the Penal Code, No doubt it is open to the Court to find out whether the ingredients of the offence defined in the Indian Penal Code have been satisfactorily established in the trial of an offence under the Penal Code. We feel no difficulty in holding that the Court -has the power to find out whether the offence was committed Cr not and that is all that is laid down by the provisions of the Criminal Procedure Code referred to above. But it is a different 50 Cr. L, J. 10S & 106 thing to say that even though prima facie an offence is committed by contravening the provisions of a special law, still it should be deemed that there would not have been such a contravention if there had been no occasion for such contravention. The law of procedure is not different in the trial of cases under the Penal Code and those under other statutes according to Section 6, Criminal P. C, except that in the case of offences under other laws the procedure laid down by the Criminal Procedure Cods is subject to any enactment for the time for regulating the manner Cr place of instigation, enquiry Cr trial. When Section 322 (2), District Municipalities Act, says that the decisions of the council on appeals against the Order of the executive authority granting Cr refusing to grant a licence Cr permission shall be final, it should be deemed that a criminal Court trying an offence for contravening certain provisions of the District Municipalities Act, can only be subject to the finality as contemplated in Section 322 (2). Mr. Veerasami relied on the observa-tions of Krishnan J., in In re Smith, 46 M. L. j. 731 : A.I.R. (11) 1924 Mad. 389: 25 Cr.L.J. 584), where the learned Judge held that in a prosecution for the offence of non-payment of the licence fee payable for erecting a machinery under Section 238, City Municipal Act, the fact that the accused did not appeal to the Standing Committee against the imposition of the fee does not preclude him from raising the plea that the machinery was not one in respect of which a licence was required, and that he was therefore not bound to pay the same, Here again, the question is one of jurisdiction. Where the Order of the executive authority was ultra vires and without jurisdiction, it is as if no such Order is in force. Such being the case, it is not necessary to appeal against an Order which is without jurisdiction. It can be taken as if it never existed. But in the present case, the Order of the executive authority refusing to grant the licence for running the oil mill on the ground that it is situated in a residential area cannot be said to be an Order without jurisdiction for it is not pretended that the oil mill is one for the running of which a licence is not necessary at all. The petitioner himself applied foe the licence and he has never pleaded that the provisions of the District Municipalities Act relating to licences are not applicable to his oil mill at all. All that he contends is that in view of the fact that the oil mill was in existence prior to the differentiation of areas into industrial and residential areas, he was entitled as a matter oi right to be granted a licence. To a state of circumstances like this the passage in Maxwell on Interpretation of Statutes, Edn. 9, at p. 129 to the effect that in a statute which lays down that where something is left to be done according to the discretion of the authority on whom the power of doing it is conferred, the discretion must be exercised honestly and in the spirit of the statute, otherwise the act done would not fall within the statute, cannot be said to have any direct application.
17. The learned Public Prosecutor contended that there exists a distinction where a patty contravenes any of the provisions of the sections of the District Municipalities Act Cr rules specified in Sob. V and the recovery of fines as contemplated in Section 344 of the same statute. In the farmer he contended that the Court investigating the offence has no power to go into the merits of the Order contravened; whereas in the latter, where a sum of money is sought to be recovered, the question whether the amount is really due Cr not is one which a Court has to go into. He invited the attention of the Court to the cases of profession tax contemplated by E. 29 of Schedule iv, We have already discussed the difference between the two categories of cases when dealing with Satya. narayana v. H. B. Yorke A. I.R. (20) 1933 Mad. 148 : 84 Cr. L. J. 26 and Kurihambu v. Local Fund Overseer, Chiraklcal 1932 M, W. N. 873.
18. To sum up the result of the above discussion of the case law, we think that in a case where a person is prosecuted for carrying on an industry Cr trade for which a licence to do so has been refused, it is open to the Court to find out whether the Order of the statutory body was made without jurisdiction; whether on the face of it the Order is illegal Cr whether it is unreasonable, revolting Cr repugnant to conscience. But where the Order is in the legitimate exercise of jurisdiction vested in the statutory body and passed bona fide after considering the evidence before it, even if the Order is wrong on the merits, the Court cannot hold that it is wrong. It is not the function of the Court to substitute its judgment as an appellate authority for that of the statutory body. In cases where the party pleads that no licence is necessary, it is one of jurisdiction. But where the plea is that even though a licence is necessary it has been refused on the merits, the plea cannot be considered as one involving jurisdiction at all.
19. We have been taken through the Orders of the lower Court as well as the exhibits filed in the case. We do not think that the action of the municipality in refusing the licence on the ground that the premises situated in a residential area is without jurisdiction. The petitioner has not appealed to the council against this Order. As has been laid down in a number of cases, it is open to the aggrieved party to have his remedy in a civil Court by instituting a suit for an injunction Cr resorting to one of the prerogative writs allowed by law if such a remedy is available to the party, Without resorting to these remedies, it is not open to the petitioner to contend when he is prosecuted for running an oil mill after the licence to run it has been refused, that the licence should have been given to him and that the Order of the executive authority is wrong on the merits. We are, therefore, of opinion that the decision of the lower Court is right. This revision petition is dismissed.