KUNHAMMAD KUTTY Vs. DISTRICT BOARD REVENUE INSPECTOR BADAGARA

JUDGEMENT

(1.) The revision petitioner, or simply the petitioner, has been convicted by the Honorary Special First Class Magistrate of Badagara, under S.171 (1) read with S.207 of the Madras (District Boards) Act, 1920, hereinafter referred to as the Act, for keeping open a private market without obtaining the requisite licence from the District Board and has been sentenced to pay a fine of Rs. 50/-, and in default of payment, to undergo simple imprisonment for one month. He previously kept open the same market during the year, which ended on the 31st March, 1957, and was keeping it open, also during the year in question, which commenced on the 1st April, 1957, but according to the prosecution, without obtaining the licence. He did apply for a licence for the year, in renewal of the earlier licence, but this was on the 21st August, 1957, after the year had well advanced; he also made payment of the licence fee of Rs. 300-/, but only on the 17th March, 1958. The District Board issued a notice to him on the 31st March, 1958, to pay an additional sum of Rs. 75/- towards the licence fee, as a like amount out of Rs. 300/- paid, had been credited by it, towards what is called in this case as the belated application fee. The petitioner did not comply with this demand.

(2.) The relevant provisions of the Act require examination. S.171 (2) as follows:-

(3.) The argument of the learned counsel was two-fold, first, that the provision in S.171 (2) is not mandatory in spite of the use of the word shall in the Section, and secondly, that the operation of the provision in S.212, (11 is not limited to applications which may be made within the prescribed time, or valid applications, as they were called by counsel who appeared before me for the District Board, but extends also to any application for licence which may be made during the currency of the year. I see no merit in these arguments. I am not prepared to hold, that when the legislature has prescribed a time-limit, within which an application for licence shall be made, the prescription may be understood to be nothing more than a condition which the applicant may fulfil at his choice; if it were so, there is no meaning, in the imposition of a time-limit. The word shall may in proper cases, depending on the context, and on other considerations be construed as meaning may, but then there must be strong and compelling reasons to do so. That it is open to the District Board to waive the condition, and entertain the application, whether conditionally on payment of a belated application fee, the right to impose which is seriously questioned by the petitioner, or unconditionally, is not decisive of the issue, so far as the applicant is concerned. In this view, the petitioner had no right to insist, that his application for licence ought to be granted, irrespective of the time-limit prescribed.