BISHAMBHAR DAYAL AND ORS Vs. STATE

JUDGEMENT

(1.) This an application in revision by Bishambhar Dayal, Bengali, Mohan Lal and Mithu Lal, who have been convicted Under Section 299 of the U.P. Municipalities Act No. II of 1916 for breach of bye laws framed by the Municipal Board of Firozabad Under Section 298 Clause F, Sub-clause (a), (b) and (c) and Clause J, Sub-clause (d) of the Act in that on the 23rd of May, 1952, they used the godown of the late Babu Jado Rai Vakil in Gali Sabzimandi in Firozabad for selling fruits and vegetables although the godown is net an approved market for such sale and they did not obtain any license from the Board. The applicants conceded that they used the place for selling fruits and vegetables, but their contention was that no license was needed, the bye-laws did not apply to the facts of the case and that the prosecution was bad in law inasmuch as there was no proper complaint by proper authority.

(2.) It appears that on the 9th of September, 1931, the Municipal Board of Firozabad framed certain byelaws Under Section 298 Clause F, Sub-clauses (a), (b) and (c) and Clause J, Sub-clause (d) of the Municipalities Act laying down that no person shall sell or expose for sale any fruit or vegetable in any market except in the Fergusson Vegetable Market and the market on the uftada land to the west of the same, unless the market is approved and license is granted by the Board in that behalf in accordance with the bye-laws. It is conceded that the godown of the late Babu Jado Rai in Gali Sabzimandi is not an approved market for the sale of fruits and vegetables. It is contended on behalf of the applicants that the place is not a market at all, and it has been urged that no license was needed. The term "market" is nowhere defined in the U.P. Municipalities Act. I do not, however, think that that should present any difficulty in the present case. A market is no doubt a place set apart for the meeting of the general public of buyers and sellers freely open to any such to assemble together where any seller may expose his goods for sale and any buyer may purchase. I would take it for the purposes of this case that the applicants wanted to establish a market for the sale of fruits and vegetables in this godown and that that was the reason why they had applied for a license to the Board. They started selling the goods before the place was approved of as a market and before the necessary license was given to them. They therefore contravened the bye-laws lawfully made by the Board and their act was punishable Under Section 299 of the U.P. Municipalities Act.

(3.) As a prerequisite to a prosecution for such an Act Section 314 of the U.P. Municipalities Act provides that unless otherwise expressly provided no court shall take cognizance of any such offence except on the complaint of or upon information received from the Board or some person authorised by the Board by general or special order in this behalf. Under Sections 60 and 62 of the Act read with Schedule II an Executive Officer appointed in any Municipality Under Section 57 or Section 65 is empowered to institute prosecutions by making complaints and giving information and may empower by general or special order any servant of the Board with sanction of the present to make such complaints and give such information. Section 60, Clause (1) Sub-clause (d) and Schedule II of the UP Municipalities Act in relation to the entry regarding Section 314 are regulated by the provisions of Section 62 of the Act. The Executive Officer cannot empower by general or special order any servant of the Board to exercise under his control any power conferred on the Executive Officer by Section 314, unless it has the sanction of the President of the Board. In the present case the prosecution was launched by the Medical Officer of Health and not by the Executive Officer. The prosecution relied upon an order made by the Executive Officer as far back as 27-11-1946 by which he delegated his powers to institute prosecution under the Act to the Medical Officer of Health. It was not alleged or proved that such a delegation of authority had the approval of the Chairman or the President of the Board as required by Section 62. Obviously the, complaint in the present case was not proved to have been made by proper authority. In view of the mandatory provisions of Section 314 of the UP Municipalities Act the Magistrate wrongly assumed jurisdiction over the complaint made by the Medical Officer of Health. The conviction was therefore bad in law and cannot be sustained.