MUZAFFERPUR MUNICIPALITY Vs. TARA PRASAD

JUDGEMENT

(1.) This is a reference by the District Magistrate of Muzafferpur under Section 438, Criminal P.C., asking this Court to revise the judgment and order of a Magistrate of the Third Class in Muzafferpur whereby the accused Tara Prasad was acquitted of an offence, punishable under Section 263 read with Section 259, Bihar and Orissa Municipal Act, consisting in the keeping without a licence within the Muzafferpur Municipality of a place used for the trade or business of a surkhi mill. It is not denied that the opposite party had been for some. time past Working a surkhi mill within the Municipality and was operating his surkhi mill in the month of March 1939, in which the present complaint was presented. There was formerly no prohibition under Section 259, of the keeping of a surkhi mill within the Municipality without a license. It is not one of the trades or businesses referred to in Section 259, Sub-section (1), Clauses (i) to (xiii) but the Section can be made applicable to other manufactures, processes or businesses which are declared by the Local Government by notification to be dangerous or offensive under Clause (xiv). In pursuance of this clause the Local Government by Notification 1181 L.S.G. dated 15 March 1937, declared that the running of surkhi mills was offensive.

(2.) The notification was duly published. As a result of this the provisions of Section 259, Sub-section (1) became operative, that is to say, it was now within the power of the Commissioners at a meeting to fix local limits within which no place might be used for the purpose mentioned without a license. In that connexion Sub-section (3) of Section 259 also became operative whereby the Commissioners at a meeting became empowered, subject to a maximum to be fixed by the Local Government to levy a fee. The Local Government fixed as maximum fee for such a license the sum of Rs. 100 by Notification 1182 L.S.G., dated 15 March 1937. The Commissioners at a meeting held on 29 July 1938, resolved that within the whole area of the Municipality no place was to be used for a surkhi mill without a license. They also resolved that the fee for a license for a surkhi mill should be Rs. 100. These proceedings of the Municipal Commissioners are said to have been published and it is certain that the opposite party, the present accused, had knowledge of them, for there are on the record two petitions by way of protest, one presented by this opposite party alone and one by himself and some other owners of surkhi mills, against the magnitude of the fee.

(3.) The point raised in the trial Court which succeeded there was that the resolutions of, the Municipality which require licenses to be taken out for running surkhi mills and which fixed the fee to be levied are rules framed by the Municipal Commissioners to which Section 354, Municipal Act, is applicable. In this Court for the respondent it has been contended that they are rules or by-laws, and in either case subject to the provisions of Section 354. That Section enacts in two Sub- sections that the power of the Commissioners to make rules and to make bye-laws shall be subject to the condition of such rules not taking effect until they have been confirmed by the Local Government. In the case of bye-laws, previous publication and Gazette publication are also conditions precedent to the taking effect of the bye-laws.