MITHAN Vs. MUNICIPAL BOARD ORAI

JUDGEMENT

(1.) This is a Writ petition under Article 226 of the Constitution. It has been preferred by two persons, namely, Srimati Nithan and Srimati Jaddan. The two petitioners in this petition, were alleged to be carrying on habitual prostitution in their houses situate in mohalla Surnagar, Chowkhandi in Oral town by collecting all sorts of disorderly persons till late in the night. They were further alleged to be carrying on prostitution in the said premises by allowing some outside females to stay in their houses to the great annoyance, of respectable residents of the said locality. This led the Municipal Board, Orai, to lodge a complaint to the District Magistrate on 31-7-1952. In this complaint a grievance was made of the aforementioned undesirable activities of the two petitioners, and it was prayed that an order under Section 247 of the Municipalities Act be passed against them prohibiting them from using their houses in the aforesaid manner. Thereafter the case was taken up by Sri Wahajul Haq, Sub-Divisional Magistrate, Orai. Before the said Magistrate, a large number of witnesses were produced on behalf of the complainant. These witnesses, included the owners and residents of neighbouring houses. The Executive Officer, Municipal Board also: appeared as a witness and made his statement. The evidence of these witnesses supported the prosecution case. After taking the entire evidence in the case, the Magistrate wrote a well reasoned order on 31-12-1952. The operative portion of this order runs thus:

(2.) The appellants challenged this order by filing a revision petition before the Sessions Judge. The revision having been dismissed, the matter was brought to this Court under Section 435 of the Code of Criminal Procedure. The judgment of that case is reported in Mst. Mithan v. Municipal Board of Orai and State of U. P., AIR 1950 All 351CA). This case was heard by a bench of this Court. In that case the question that directly arose for decision was whether a Magistrate acting under Section 247 of the U. P. Municipalities Act was an inferior criminal court within the meaning of Section, 435 of the Code of Criminal Procedure so as to enable the High Court to exercise its revisional powers in respect of an order passed by it. The Bench in that case took the view that a Magistrate acting under the aforesaid provision was not an inferior court as contemplated by Section 435 of the Code of Criminal Procedure. It accordingly rejected the revision petition. Thereafter, Smt. Mithan and Smt. Jaddan filed this writ petition which has come up for hearing before us.

(3.) Learned counsel for the applicants urged a number of points before us. His attack on the order of the Magistrate was a double barrelled one. Firstly he argued that the order in question contravenes the provisions of Section 247 of the U. P. Municipalities Act. Secondly, he argued that Section 247 of the Municipalities Act itself is ultra vires of the Constitution. To appreciate his argument it would be helpful to set out Section 247 of the U. P. Municipalities Act. Section 247 of the said Act runs as follows: