STATE OF GUJARAT Vs. PINGAL RAMDE

JUDGEMENT

(1.) This is an appeal filed by the State of Gujarat challenging the order of acquittal passed by the learned Judicial Magistrate First Class Patan in Criminal Case No. 1010/1960. The respondent was running a hotel and used to sell and serve tea and coffee there from 1st October 1959 to 31st March 1960 without a licence though he was bound to take out a licence under rule 5 of the Rules framed by the Patan Municipality. The omission to take out the licence as required by rule 5 is made punish- able under rule 18 of these Rules. The defence of the respondent was that these Rules were not in force and that therefore he was not liable to pay the licence fee nor was he liable to be prosecuted under rules 5 and 18 of these Rules. These rules were framed by the Patan Municipality in 1921 under the Baroda Municipal Act when Patan was part of the former Baroda State territories. On the 1st of August 1948 the State of Baroda merged with the State of Bombay and by virtue of the Bombay Merged States (Laws) Act 1950 the Bombay District Municipal Act 1901 became applicable to the limits of the Patan Municipality. On the 1st October 1958 the Municipality framed rules under sec. 46 and 48 of the Bombay District Municipal Act. It would appear that after these Rules came into force the Patan Municipality prosecuted a hotel-keeper for having omitted to take out a licence under the new Rules. The learned trial Magistrate in that case held that the new Rules framed in 1958 were invalid. The Patan Municipality thereafter filed an appeal against the said judgment in the High Court of Bombay and by an order dated the 16th November 1959 that appeal was summarily dismissed.

(2.) Since the respondent also had not taken out any licence nor paid the licence fees the Municipality served a notice upon him dated the 8th of January 1960 intimating to him that though he had been running a hotel he had failed to pay the licence fee of Rs. 50.00 warning the respondent that if he failed to take out the licence within 15 days of the notice steps would be taken against him. Since the respondent failed to take out the licence or to pay the prescribed licence fees the Municipality filed a complaint against him through its clerk witness Narmadashanker Purushottamdas Pandya.

(3.) In para 1 of that complaint it was stated that the accused was runn- ing his hotel without a licence within the municipal limits of Patan for the period 1st October 1959 to 31st March 1960. In para 2 of that comp- laint it was expressly stated that the new Rules framed by the Munici- pality in October 1958 had teen declared illegal and invalid by the Court of the learned Judicial Magistrate First Class Patan and that by that reason the old Rules had come into force automatically and the respon- dent was liable to pay the licence fees under those old Rules. It is clear from the complaint of the Municipality that the view of the Municipality was that as the new Rules including rule 8 which purported to repeal the old Rules were held to be invalid by a competent Court the old Rules which had been validly made still prevailed. It was therefore that a demand for the licence fees was made and the complaint was filed on the ground that the respondent had committed breach of rule 5 of the old rules and was therefore punishable under rule 18 of those Rules.