LAWS(KER)-1959-2-32

MUNICIPAL HEALTH OFFICER, CANNORE Vs. PARAMMAL ANANDAN

Decided On February 26, 1959
Municipal Health Officer, Cannore Appellant
V/S
Parammal Anandan Respondents

JUDGEMENT

(1.) THIS is an appeal against an order of acquittal made by the Special First Class Magistrate of Cannanore in S.T.C.No.512 of 1958 on his file.

(2.) THE respondent,the accused in the said case,was conducting a textile business known as Ananda Textiles in the building K.K.525 at Kakad within the Cannanore Municipality,and in connection with this business he was also carrying on dyeing operations in that building.Alleging that he was carrying on the dyeing operations in 1957 -58 without obtaining the licence,which it was necessary for him to take out under section 249 of the Madras District Municipalities Act,5 of 1920,and clause(g)of Schedule V thereto and the Notification dated 1st February 1956 published by the Cannanore Municipal Council under the said section,the Municipal Health Officer,Cannanore,prosecuted him under section 313 of the said Act.The accused pleaded not guilty.His contention before the magistrate was two -fold,namely,( 1)that under section 249 and the Notification published by the Cannanore Municipal Council referred to above licence was required for dyeing only if it was being conducted in a "factory ''and,as there was no evidence in the case that the concern he was conducting was a "factory "within the meaning of that term as defined in the Factories Act(Central Act 63 of 1948 ),he was not bound to take out a licence;and(2)that even if his concern was held to be a "factory "he was not bound to take out a licence as the Madras Govern­ment had by G.O.No.26669 -49 -8 -E1 dated 29th June 1949 exempted all factories engaged in dyeing in yarn or cloth where no mechanical or electrical power was being used from taking out the licences required by section 24 and Schedule V.Both these contentions found favour with the learned Magistrate and has,therefore,acquitted the accused.The Municipal Health Officer his,therefore,filed this appeal.

(3.) THE respondent's counsel contended before us that,even if the municipal council has the wide power under section 249 to prohibit the use of any place within the municipal limits or within three miles thereof for ay of the purposes mentioned in Schedule V,the actual prohi­bition of the use has to be made by a notification published by the municipal council,and that as the notification of 1st February 1956,under which the prosecution claims the prohibition has been made in this case,prohibits dye­ing in factories or for weaving factories without a licence,the prosecution cannot succeed without proving that the accused was conducting the dyeing in a factory or for a factory within the meaning of that term as defined in the Factories Act.The prohibition was first made by the Cannanore Municipal Council by a notification,dated 4th June 1948,and the notification of 1st February 1956 relied upon by the prosecution and referred to above is only a later notification making certain changes and modi­fications in the first notification.Clause 2 of paragraph 1 of the notification of 1st February 1956 reads: "Under section 249 of the Madras District Municipalities Act,1920,as amended the Municipal Council,Cannanore,hereby notifies for the information of the public that in supersession of the previous notifications that no place within the municipal limits or within a radius of three miles of the municipal limits shall be used for any one or more of the purposes specified in Schedule V of the Act from 1948 -1949 without a licence from the executive authority or the Municipal Health Officer and except in accordance with the conditions specified therein." The fees for the licences are prescribed in the schedule attached to this notification,and items 32 to 35 relate to dyeing.Item 32 prescribes a fee of Rs.25 per year for "dyeing as special industry "; item 33 prescribes Rs.20 per year for "dyeing for weaving factories "with handlooms of five or less;item 34 prescribes a fee of Rs.35 per year for "dyeing for weaving factories "with handlooms of more than five but less than fifty;and item 35 prescribes a fee of Rs.50 per year for "dyeing for weaving factories "with handlooms of fifty and above.The prosecution case is that the accused was conducting dyeing for the Ananda Textiles and that he was bound to take out a licence under clause 2 of paragraph 1 of the notification dated 1st February 1956 and pay the licensing fee mentioned in item 34 of the schedule.To prove that he was liable to pay the fee as per item 34 of the schedule the prosecution relies upon the evidence of P.W.1,the Sanitary Inspector of the municipality,who says that the accused was doing the dyeing business for the Ananda Textiles in which he was working twenty handlooms.P.W.1 was not cross -examined on this part of his evidence,and his evidence on this point was not disputed before us also.Therefore,our finding on the question of fact involved in this case is that the accused was conducting the dyeing in the premises mentioned in the complaint for his business,Ananda Textiles,in which he was operating twenty handlooms.