MUNICIPAL HEALTH OFFICER, KOZHIKODE Vs. CHEKKUTTY

JUDGEMENT

(1.) THIS appeal is directed against the order of acquittal passed by the Special First Class Magistrate, Kozhikode in a Municipal prosecution against the respondent, accused, for failure to take out licence for conducting a restaurant under sections 249(1) and 313(1) of the Madras District Municipalities Act (V of 1920). The restaurant in question, it would appear, had been actually conducted not by the accused but by his tenant Kumara Panicker. On notice issued by the Municipality to the latter requiring him to take out a licence by paying a licence fee of Rs. 45/ - he pleaded that the amount demanded was too high. The licence fee was then reduced to Rs. 30/ - but without paying even that amount and getting the licence, he closed down his business and also made himself scarce. It was thereupon that the accused landlord was sought to be proceeded against. The accused raised the defence that he was not liable for the failure of the occupier Kumara Panicker to take out licence. The court below found that the reasons which motivated the prosecution, viz., the non -availability of Kumara Panicker was not established and accordingly acquitted the accused Mr. Govinda Menon appear in for the appellant urges that the court below should have entered conviction against the accused as owner of the place apart from any question as to the availability of the occupant Kumara Panicker.

(2.) NOW section 249, sub -section (1) of the Madras District Municipalities Act provides for the requirement of a licence in respect of the use of places for purposes specified in Schedule V. clause (j) of which includes 'restaurant'. Sub -section (2) then says :

(3.) LEARNED Counsel referred to two cases in Public Prosecutor v. Pandaram,, A.I.R. 1930 Mad. 510 and Public Prosecutor v. Harihara Iyer,, A.I.R. 1948 Mad. 219. The first of these involved prosecution for disobeying a notice under section 182(1) of the District Municipalities Act to remove certain alleged encroachments in front of certain premises respectively occupied and owned by the two accused. The Bench Magistrate without going into the merits of the charge acquitted both the accused on the ground that under section 182(1) notice to remove construction or encroachment can only be given to either the occupier or the owner but not to both. Further the Municipality not having elected to proceed against the one or the other, but having proceeded against both, the prosecution case failed. Pandalai, J., in appeal by the Municipality said :