BOMBAY MUNICIPALITY Vs. YENKANNA ELLSPPA BALARAM

JUDGEMENT

(1.) In this case the accused, on February 11, 1927, submitted plans to the Municipal Commissioner to erect a structure designed to be let as small shops on the side of the compound of his building along Balaram street. The plans were approved by the Municipality and the structure was erected in compliance with the Municipal requirements. The structure consists of blocks abutting on Balaram street. The shops are let to tenants on monthly rental varying from Rs. 20 to Rs. 35. There is no inter-communication between the shops. Each tenant is independent of the other. The blocks were divided into sixteen shops. One tenant sold flowers, another sold toys and the rest of the tenants sold fruits of various kinds. The shops looked like stalls or booths. The customers purchased the goods standing on the pavement of the road and had no right to enter the shops. The fruits left unsold were kept in the shop overnight and the shutters were padlocked.

(2.) The accused was charged under Section 402. Clause (2), for establishing a new private market for the sale of articles of human food without the sanction of the Commissioner; under Section 403, Clause (1)(a), for keeping open a private market without a license granted by the Commissioner; and under Section 471 of the City of Bombay Municipal Act, III of 1888.

(3.) The Presidency Magistrate, Second Court, has, under Section 432 of the Criminal Procedure Code, referred for the opinion of the High Court the following questions ; (1) Whether the shops and user constitute a private market within the meaning of 83. 402 and 403. (2) Whether fruits are articles of human food within the scope of Section 402 t (3) Whether the owner is liable to the penalty prescribed in Section 471 upon the admitted facts of the case?