Commissioner, Municipality, Mannargudi vs Krishnamurthi and Another

Suryamurthi, J.—These two appeals have been filed by the Commissioner of Mannargudi Municipality against the judgments of the learned

Judicial Second Class Magistrate, Mannargudi in C.C. Nos. 2232 and 2233 of 1976, acquitting the accused in the two cases, of offences

punishable under Ss.249 and 313 of the Tamil Nadu District Municipalities Act, hereinafter referred to as the Act. The Commissioner filed two

complaints in the aforesaid two cases against the two respondents for offences punishable under Ss.249 and 313 of the Act, on, identical

allegations, and though two different Judgments have been delivered by the learned Judicial Second Class Magistrate, the judgments are identical

except for the names of the respondents. The arguments in both the appeals were heard together and therefore, it is convenient to dispose of both

the appeals by a common judgment.

The Municipal Council, Mannargudi, by its resolution No. 449, dt. 28th February,. 1975, increased the rate of levy of license fee for dangerous

and obnoxious trades. Among the trades for which the license-fee was increased was retail sales of food grains, groundnuts, chillies, jaggery,

cotton seeds and other agricultural produce likely to attract rats. The license-fee which was existing on the date of the resolution was Rs. 5

perannum and by the aforesaid resolution, this was increased to Rs. 30 per annum. The two respondents obtained orders of the Sub-Collector,

Mannargudi, authorizing them to deal in retail sale of rice or paddy in the premises described in the certificates issued to the respondents.

Thereafter, they applied to the municipality to grant them licenses to carry on the said retail sale in the respective premises and remitted a sum of

Rs. 30 each, which is the fee prescribed in the aforesaid resolution. The applications were neither granted nor rejected. Instead, the Commissioner

has issued notices, dt. 2nd March, 1976 to the respondents informing them that the license-fee fixed for retail business is Rs. 100 and directing

them to pay the balance with penalty at the rate of 25 paisa per rupee within a week after the receipt of the notice and promising to consider the

applications therefore. The Commissioner has also held out a threat to initiate legal proceedings against the applicants if the amounts demanded

were not paid. However, the applications were not rejected.

The demand of the Commissioner for payment of a sum of Rs. 100 from each of the applicants instead of the fee of Rs. 30 sent by them is illegal

and without jurisdiction. A fee of Rs. 100 has been fixed for the issue of license for storing of food grains, including paddy. The respondents did

not apply for licenses to store food grains and therefore they were not able to pay a license fee of Rs. 100 each. It is abundantly clear from a copy

of the District Gazette dt. 11th March, 1958 that only a sum of Rs. 30 is payable as license fee to conduct a retail business in rice, paddy, etc, The

demand of the Commissioner for payment of a sum of Rs. 100 by way of license fee is therefore preposterous, oppressive and if not malicious, at

least thoughtless As the illegal demand of the Commissioner was not met, two complaints were given against the respondents by the

Commissioner. I may straightway say that these prosecutions are not maintainable because the respondents who had applied for licenses to carry

on the retail sale in rice and who had remitted license-fee, were entitled to carry on the business by reason of the deeming provision in S. 321(11)

of the Act, as no order rejecting their applications was passed and communicated to them within 30 day after the receipt of the applications by the

Commissioner of the Municipality.

The learned counsel for the Commissioner wants me to read the communications, dated 2nd March, 1976, marked as Ex.P.2 in both the cases

as rejections of the applications. I am unable to find any such order in Ex.P2. In Ex. P2, the Commissioner has merely promised to consider the

applications on payment of the balance. It is not a final order rejecting the application. Therefore, the aforesaid deeming provision in the Act can be

availed of by the respondents herein to conduct their retail trades.

In S.P. Thiruvengadasami Naidu Vs. Municipal Health Officer, a Fall Bench of this Court has laid down as follows-

...We think that in a case where a person is prosecuted for carrying on an Industry or trade for which a license to do so has been refused, it is

open to the court to find out whether the order of the statutory body was made without jurisdiction; whether on the face of it the order is illegal or

whether it is unreasonable, revolting or repugnant to conscience. But. where the order is in the legitimate exercise of jurisdiction vested in the

statutory body and passed bona fide after considering the evidence before it, even if the order is wrong on the merits, the court cannot hold that it

is wrong. It is not the function of the court to substitute its judgment as an appellate authority for that of the statutory body. In cases, where the

party pleads that no license is necessary, it is one of jurisdiction. But where the plea is that even though a license is necessary it has been refused on

the merits, the plea cannot be considered as one involving jurisdiction at all.

In the instant cases, the applications for the issue of the licenses have not been refused or rejected. The Commissioner has no jurisdiction to

demand as license-fee any amount in excess of what has been fixed by the resolution of the Municipality and published in the District Gazette,

dated 11th March, 1958. Therefore, the prosecution is illegal.

It is very unfortunate that this Commissioner should have behaved in an arbitrary,'' whimsical and capricious manner and without trying to

understand the provisions of law under which he purported to act. When it is abundantly clear from the resolution of the'' Municipality that the

license-fee payable for a retail trade is only Rs. 30, I am unable to understand how or why the Commissioner chose to demand Rs. 100 which is

the fee for the issue of a license to store food grains. If this Commissioner is incapable of understanding this simple fact, I wonder how he can

administer the more complicated affairs of a municipality. The demand of the Commissioner for payment of Rs. 100 from the applicants to carry on

the retail trade sale of rice for which the fee prescribed is only Rs. 30 is oppressive. The prosecution instituted by the Commissioner on the basis of

the illegal demand is without any reasonable and probable cause. The learned trial Magistrate was right in dismissing both the, complaints and

acquitting the accused. These criminal appeals fail and they are dismissed.