EMPEROR Vs. FGKALKHOWAN

JUDGEMENT

(1.) This is an appeal by the Local Government against a judgment of acquittal. The respondent is a gentleman named Mr. F.G. Kalkhowan, who is - or was - the General Manager, of a concern, known as the Amusement Variety Company. On 8 June 1936 he applied to the Chairman of the Municipal Board at Bareilly for permission to exhibit his show and in his application he stated that it would consist of theatrical performances, circus, acrobatics and some games of skill. The Chairman on that same date wrote the following order: To the E.O. for disposal. I have no authority to give or revoke license. If he gives license, I cannot say anything. Personally I have no objection if it is not objectionable.

(2.) That same day the Executive Officer refused permission, but his order was so worded as practically to disclaim personal responsibility for the refusal. After referring to the applicant's testimonials and the Chairman's endorsement on the application, the Executive Officer wrote as follows; There is no doubt that the majority of the Board likes me as licensing officer subordinate to Board to discourage these shows and to do all in my power to give effect to their wishes. I have been lately issuing short period licenses to shows which I know are much inferior to the one under reference now, and there is a general outcry amongst the public and in the press against my permitting them and I know that I will not be spared on the plea of the present applicants being a far higher class people. In view of the facts mentioned above and also that there have been such shows going on for some time in the small city of Bareilly, which is not a very prosperous town, I think that permission at present will be prejudicial to public interest. I, therefore, refuse permission. Inform the applicant.

(3.) In spite of that order of refusal the applicant proceeded to exhibit his show in the city at Bareilly. He was accordingly prosecuted by the Municipal Board under Section 299, Municipalities Act, for infringing certain bye-laws; but the Magistrate who tried the case has acquitted the respondent on the ground that his application was illegally refused. Section 298 of Part 1, Municipalities Act, empowers a Municipal Board to pass bye-laws, and Clause (m) of heading H of list 1 provides for the passing of bye-laws prohibiting or regulating, with a view to promoting the public safety or convenience, any act which occasions or is likely to occasion a public nuisance and for the prohibition or regulation of which no provision is made under this heading.