S R VARMA Vs. EMPEROR

JUDGEMENT

(1.) The question raised by this appeal is one of considerable importance and relates to the power of the Corporation of Calcutta to refuse a license to keep open a Carnival when in the public interest it thinks it necessary to do so. The case for the prosecution is that the appellant S.R. Varma was the proprietor of a Carnival in respect of which license had been obtained from the Corporation and that license remained in force up to 1 March 1932; that there had been complaints against the holding of Carnivals of late both in the newspapers as well as by some public bodies like the Marwari Trades Association of Calcutta and the appellant was informed that no further license would be granted after the expiry of the period; that the appellant thereafter changed the site and name of the show and obtained a police licence for the show under the name of Holywood Park Carnival on plots Nos. 21 to 29 of the Calcutta Improvement Trust Scheme and intimated to the Corporation that he was going to open the projected Carnival from 1 April and was prepared to pay the taxes, that the Carnival was opened from 1 April; but no license from the Municipality having been obtained the appellant had offended against the provisions of Section 391, Calcutta Municipal Act. The Corporation of Calcutta started the prosecution under Section 391, Calcutta Municipal Act.

(2.) It is admitted by the accused that the Carnival was started without obtaining the license and in such circumstances one would have thought that the provisions of Section 391 had been contravened; but it is contended by the defence that the Corporation cannot refuse a license altogether although it can impose conditions for the taking out of the license. The Magistrate thought that it was not necessary to go into the question whether the Corporation had the right of refusing license altogether and that it was sufficient for the purposes of the conviction in this case that the Carnival had been started and continued without a license. In this view the Municipal Magistrate convicted the appellant under Section 391, Calcutta Municipal Act, and has sentenced him to pay a fine of Rs. 500. The conviction and sentence have been challenged on appeal on several grounds: (1) the Corporation had no power under the statute to refuse a license altogether and, refusing to grant license the Corporation ceased to function" and the conviction under Section 391 cannot be maintained; (2) the Act contemplates two licenses, one license for the place and another for the calling; and so far as the license for calling is concerned license could be taken after 1 July as Section 391 must be read with Section 175 and the prosecution was bad as it was started before 1 July; (3) that the sentence is too severe.

(3.) It will be easy to dispose of the second ground first. Mr. N.K. Basu who appears for the Corporation of Calcutta replies to the argument founded on this ground by pointing out that Section 175 or Sch. 6 has got nothing to do with Section 391. He argues that the breach under Section 175 is punishable under Section 492 whereas the breach under Section 391 is punishable under Section 488. He points out that Section 175 occurs in Ch. 12 which concerns "tax on profession," whereas Section 391 occurs in Ch. 26 which deals with "regulation and inspection of places of public resort." Mr. Basu further cites two cases in support of this view, Bepin Behari Ghose V/s. Corporation of Calcutta (1907) 34 Cal. 913 and S.N. Banerjee V/s. W. Lewis & Co. AIR 1920 Cal 535. Both these cases which were under the old Calcutta Municipal Act (3 of 1899) B.C, support the argument of Mr. Basu and I am of opinion that Section 175 deals with a very different class of license from that contemplated by Section 391. The object of the two sections and the nature of the licenses required by them are different. Section 175 occurs in Ch. 12 which deals with tax on profession whereas Section 391 occurs in Ch. 26 dealing with regulation and inspection of places of public resort. These observations are sufficient to dispose of ground 2 taken. Ground 1 taken seems to be one of some difficulty. S 391 of the Act of 1923 runs as follows: No person shall, without or otherwise than in conformity with the terms of a license granted by the Corporation in this behalf, keep open any theatre, circus or other similar place of public resort, recreation or amusement; Provided that this section shall not apply to private performances in any such place.