MANNUA Vs. EMPEROR

JUDGEMENT

(1.) THE applicants in this case are Musammat Batasu, also called Musammat Diptian, and her son Mannua, Ganga Putras by caste, residents of Cawnpur. THEy were prosecuted under the provisions of the United Provinces Municipal Act for keeping a certain plot of ground as a place for the storing of wood, without having obtained a, license for so doing from the Municipal Board. Now it is not denied that the Municipal Board of Cawnpur has made bye-laws under Section 298 of the aforesaid Act, which bye-laws contain amongst other prohibitions a prohibition against any land within Municipal limits being used for the storage of wood, except under a license granted by the Board and subject to the provisions of such license. THE record before me shows that Mannua on behalf of himself and his mother admitted that they held no license for storing wood at the spot in question. He even admitted that they had not, up to the date on which he made his statement in Court, presented to the Municipal Board any formal application for a license. He said he had asked an Inspector in the service of the Municipal Board verbally for a license and had been told by the Inspector that he could not get one. At his trial he presented a petition to the Joint Magistrate before whom he was being tried, addressing the said Magistrate in his capacity of a member of the Municipal Board of Cawnpur, asking that he might be granted a license. On this state of facts, and apart from all other considerations, it is sufficiently obvious that Musammat Batasu and Mannua have committed at least a technical breach of a bye-law lawfully made by the Municipal Board of Cawnpur and are liable to punishment This, however, does not quite conclude the matter. THE sentence imposed by the trying Magistrate has been a fine of Rs. 50 on each of the two accused persons. This is practically the maximum penalty prescribed by the Municipal bye law for a first conviction in respect of an offence of this sort, the fine imposed being non the less the maximum fine of Rs. 100 because it has been apportioned in equal shares between the two keepers of the timberyard. Now it has been represented to me on behalf of Musammat Batasu and Mannua that the sentence imposed is in any case excessive and that, in view of the circumstances of the case as a whole, the Joint Magistrate should, even if he felt himself compelled to convict of a technical offence, have marked his same of the equities of the case by imposing a merely nominal penalty. Now that the case has come before me in revision, I consider it incumbent on me to look into the matter from this point of view. THE dispute between the applicants and the Municipal Board of Cawnpur goes back to the year 1914. It appears that in that year the Municipal Board came to the conclusion that the land on which the applicants were then and are now keeping a timberyard was Nazul land which could only be occupied on a lease or license granted by the Municipal Board. THEy took proceedings against these applicants for keeping a timberyard on Nazul land without the permission of the Board. THE applicants replied that the land in question was not Nazul land, and that in any case it had been in the exclusive occupation for the purpose of a timbaryard of the applicants and their predecessors-in-title for a period of more than fifty years. As a matter of fact the dispute in that case does not seem to have been directed specially to the question of any stock of timber on the land in question, but rather to the question of a hut alleged to exist upon the said site. THE Court trying the case came to the conclusion that the Municipal Board was not entitled to maintain such a prosecution with out first instituting a suit in the Civil Court and obtaining an adjudication on the question of disputed title to the land itself. Towards the end of the year 191c the question of the use of the land in suit by these applicants seems to nave come up ones more before the Municipal Board, and a resolution was passed the terms of which have been laid before me. THE Board resolved that the lease of Nazul land granted to Musammat Batasu and Mannua should be cancelled and that no license should be given them for storing wood on the land in question. THE present prosecution has followed naturally on the passing of this resolution. THE applicants contend that the Municipal Board is not. within its legal rights in refusing to grant them a license. THEir case is that the bye-law under which they have been prosecuted forms part of a series of bye laws dealing with dangerous and offensive trades, the object of which is the safety of the public and the prevention of nuisances. It is contended on their behalf that these bye-laws must be interpreted as a whole, and that, being so interpreted, they warrant the conclusion that the Municipal Board is under an obligation to grant a license under the said bye-laws upon any properly framed application, provided only they are satisfied that the trade in question can be carried on in the land for which license is sought without danger or injury to the public and that the person applying for a license is prepared to abide by all the prescribed conditions. I am asked to hold that if the present case be judged by these teat?, the decision ought to be in favour of the applicants that the Municipal Board had no right to pass a resolution refusing to give them a license and that it is within the power of this Court to set aside a conviction, if it is satisfied that there has been a misuse of the powers conferred upon the Municipal Board by the Act which regulates and defines its powers. In this connection I have been referred to the case of Emperor v. Balkrishan 24 A. 439 : A.W.N. (1902) 117 in which a learned Judge of this Court, in dealing with a conviction under the former Municipalities Act of 1900, went into the question of the reasonableness of a particular bye law and set aside the conviction upon a finding that the bye law in question was not reasonable and that its passing amounted to an abuse of power on the part of the Municipal Board. This decision cannot govern the case now before me in its entirety. THE bye-law which the applicants have contravened is in itself a very reasonable and proper one, and the applicants were technically in the wrong when they came before the Joint Magistrate s Court, because they had made no formal application to the Municipal Board for the grant of a license. I am still of opinion that, inspite of the Board s resolution of the 20th of November 1918, it is incumbent upon these applicants, unless they elect to submit to the orders of the Board and to remove their stock of wood from the site in question, to present through the proper channel a formal application for a license to the Municipal Board. Whatever resolution may have been passed by the said Board at a previous meeting upon an ex parte statement of the facts, it does no follow that a license would necessarily be refused after the applicants had laid their case fully before the Board. I am bound to observe, however, that the position of the Board in this matter is a peculiar one. THEy are claiming the site itself as against Musammat Batasu and Mannua. On the materials at present available to me I do not profess to understand the reference in the Board s resolution of November 20th, 1918, to the cancellation of a lease said to be held by Mannua and his mother for the use of this land. For ought I know the Municipal Board may have been in possession of indisputable evidence that these applicants hold the land in suit as their lessees. In any case the papers before me show that the land in suit is claimed as Nazul land on behalf of the Municipal Board and that this claim is being resisted by Musammat Batasu and Mannua. THE question is whether the Municipal Board is acting within its lawful rights in using its power of withholding a license so as to put pressure upon these applicants and compel them to vacate the disputed site, without the question of title being brought for determination before a competent Court. On the facts now before me I hesitate about pronouncing a final opinion on this point. THE Municipal Board may have adequate reasons for taking up the position that they would only be stultifying themselves, and making an admission which would be used against them in any subsequent civil litigation, if they were to grant these persons a license for storing wood on this particular site. I will not go further than to say that in my opinion the question would be one for careful consideration by the Municipal Board in the event of the matter coming before them upon a regular and formal application for a license made by Musammat Batasu or Mannua or both. I so far agree with the main argument which has been pressed upon me in support of this application that I think it is correct to say that the bye-laws on the subject of dangerous and offensive trades must be considered as a whole, and that a Municipal Board will be straining its authority if it refuses a license, properly applied for under any of these bye-laws, not on any grounds of: public safety, health or con-venienoe, but merely in order to secure an advantage to itself in a dispute about a question of title with another person. THE jurisdiction of this Court to interfere on the criminal side has been sufficiently illustrated by the ruling which I have already referred to. It is beyond question also that, under the former Municipal Act, a suit would be maintainable for an injunction restraining a Municipal Board - from interfering with the plaintiff s lawful exercise of his right to carry on a certain trade or employment upon a particular site, to the possession of which the said plaintiff had a clear title. Under the United Provinces Municipalities Act No. II of 1916 the jurisdiction of the Civil Courts is limited by the provisions of Sections 318 and 321 of the said Act. I have no doubt that under these sections the only remedy of a person who considered himself aggrieved by a bye-law made under Section 29 of the Act, heading (which is the heading dealing with offensive and dangerous trades), would be by way of appeal to the higher authority referred to in Section 318. But it is by no means equally clear that a suit would not lie for an injunction to compel a Municipal Board to grant the plaintiff a license for carrying on a particular trade upon a particular spot, provided always that the plaintiff was prepared to takeout the license subject to all the conditions prescribed by the bye laws and could satisfy the Court that the Municipal Board had refused him the license for reasons wholly unconnected with the public health, safety or convenience. I do not think I can profitably say anything further about this case as it stands. I reduce the sentence imposed upon Musammat Batasu and Mannua to one of a fine of Rs. 10 against the two of them or Rs. 5 each. THE balance of the fine, if paid, will be refunded to the applicants. I leave it to the parties concerned to reconsider their position in the light of such remarks as I have thought it expedient to make. If the matter should unhappily come before this Court again, the point for consideration will undoubtedly be, which of the two parties has honestly and in good faith endeavoured to put itself in the right. I must not be understood for a moment to have laid down that these application are entitled to persist in their, present attitude of contumacious resistance to the Municipal bye laws. THEy are bound either to submit to those bye-laws or to take proper steps to bring the matter in dispute between themselves and the Municipal Board to the adjudication of a competent authority; and the first step which they must take, I have no doubt, is the presentation, through the proper channel, of a regular and formal application for a license for the storage of wood in the site in question.