S P THIRUVENGADASAMI NAIDU Vs. MUNICIPAL HEALTH OFFICER

JUDGEMENT

(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.