MUNICIPAL HEALTH OFFICER ONGOLE Vs. MATTA RANGANAYAKULU

JUDGEMENT

(1.) The short question that arises in this case, on a reference by the Judicial Second Class Magistrate, Ongole, under section 432, Criminal Procedure Code, is whether sub-section (3) of section 249 of the Madras District Municipalities Act is void and unenforceable being repugnant and opposed to the fundamental rights guaranteed to a citizen under Article 19 of the Constitution of India. The question arises in the following circumstances : The respondent herein was charge-sheeted for an offence under sections 249 and 250 read with section 313 (i) of the Madras District Municipalities Act inasmuch as he was found to be running a machinery, viz., timber-cutting machine, with 10 H.P. Electric Motor without obtaining necessary licence as required under section 249 of the Madras District Municipalities Act. It was contended in that connection, with reference to decisions of the Madras and Mysore High Courts, that the powers vested in the Municipality under section 249 (3) were arbitrary and therefore repugnant to Article 19 of the Constitution. It is on this basis that the learned Magistrate has made the reference.

(2.) Section 249 (3) of the Madras District Municipalities Act provides : " The Executive Authority may by an order and under such restrictions and regulations as he thinks fit, grant or refuse to grant such licence." This provision finds a place in chapter XII, Part IV, which bears the heading " Public Health, Safety and Convenience." The contention before the learned Magistrate was that, under this sub-section, the powers in the Municipalities to grant or refuse a licence were without any guiding principles. They were arbitrary and as such in violation of the fundamental rights guaranteed to the citizens. The same view seems to have been taken in the Madras decision in the case of K. Mohamed Khasim and Brother v. Municipal Council, Ootacamund, by its Commissioner1, where Rajagopala Ayyangar, J., has held that, " In my opinion, the sub-section in its present form is in contravention of Article 19(6) and has to be struck down as violating the fundamental rights guaranteed by Article 19 (1) (g)."

(3.) This is the only observation made by his Lordship and there is no reference to any of the other provisions of the Act nor any discussion as to whether the conclusions arrived at were with reference to the entire scheme of the Act. The same view seems to have been followed by the Mysore High Court in the case of Additional Subordinate Judge, Mangalore v. B. Purushothama Baliga. It has been observed that,