Cuttack Municipality vs Bhikari Dikshit

P.K. Mohanti, J.—This appeal has come up before us on a reference made by our learned brother Panda, J.

The Respondent Bhikari Dikshit was convicted by the trial Court u/s 383 read with Section 255(2) of the Orissa Municipal Act, 1950 and sentenced to a fine of Rs. 40/ - with a default sentence of simple imprisonment for 20 days. He was also directed to pay a sum of Rs. 1,092/ - as the fees chargeable for the licence as provided u/s 337(6) of the Act. The accusation against him was that he had erected a temporary cabin on the public road on municipal plot No. 3857 covering an area of 26'' X 10'' 6" and was in occupation of the same during the year 1969-70 without obtaining the requisite licence. It was also alleged that he failed to comply with a notice requiring him either to obtain a licence on condition of payment of the requisite licence fee of Rs. 1092/ - or to remove the encroachment.

At the trial, the Respondent admitted that he had put a cabin on the municipal land and used the same during the year 1969-70, but contended that he had paid the licence fee for the previous years at the rate of Rs. 2/ - per square feet, that there was no demand of licence fee for the year 1969-70 and that he was not aware of the enhancement of the rate of licence fee from Rs. 2/ - to Rs. 4/ -.

The trial Court on a consideration of the oral and documentary evidence adduced by the parties held the Respondent guilty and inflicted the sentence as indicated above.

On appeal, the learned Sessions Judge set aside the conviction and sentence and acquitted the Respondent relying on a Single Judge decision of this Court, reported in Jogadaditya Sinha v. Balasore Municipality 1974 (1) C.W.R. 22, The order of acquittal is based on the solitary ground that since the Respondent did not obtain a licence, the question of recovery of the licence fee and the consequence of having committed any offence did not arise. Aggrieved by the order of acquittal, the Municipality has come up in appeal.

Mr. B.B. Rath, the learned Counsel appearing in support of the appeal contended that the order of acquittal is erroneous and that the point involved in this appeal is of considerable importance as the right of the Municipality to prosecute the encroachers and to realise the fees chargeable for the licence is being affected by the decision of this Court referred to above.

Our learned brother expressed the view that the reported decision on the facts of that case was correct, but the following observation made in the said decision has created some amount of confusion which needs to be clarified.

If a licence had, in fact, been proved to have been granted to the Petitioner and it was further proved that the Petitioner did not pay licence fee, then he was liable to conviction u/s 255(2) read with Section 383 of the Act.

For a decision on the point involved in this appeal it is necessary to refer to some of the important provisions of Chapter XVI of the Orissa Municipal Act, 1950. Section 252 to 260 of Chapter XVI have been placed under a sub-heading "Encroachment on roads." Section 252 is a general provision prohibiting the causing of obstruction in or over any road. It runs as follows;

No one Shall build any wall or erect any fence or other obstruction, or projection, or make any encroachment in or over any road except as hereinafter provided.

Sub-section (2) of Section 255 recognises the power of the Executive Officer to grant a licence, subject to such condition and restrictions as he may think fit, for the temporary erection of pandals and other structures in a public road vested in the council in any other public place, the control of which is vested in the council. It is clear from the aforesaid provisions that Section 252 imposes a bar on the erection of any obstruction or making any encroachment in or over any road without obtaining a licence from the Executive Officer under Sub-section (2) of Section 255 of the Act. Sub-section (2) of Section 337 provides that for every licence or permission fees may be charged on such units and at such rates as may be fixed by the municipal council. Sub-section (8) of Section 337 provides that the acceptance of the fees shall not entitle the person making such payment to the licence as of right but he will be entitled only to the refund of the fees in case he is refused the licence. A close scrutiny of the aforesaid provisions leads to a fair inference that if a person takes a licence on condition of payment of the requisite licence fee and does not pay the fee he is not liable to prosecution u/s 383 read with Section 255(2) of the Act. As already stated, licence fees may be charged for every licence as provided under Sub-section (2) of Section 337. Section 383 makes general provisions regarding penalties specified in schedule IV. According to Clause (a) of Sub-section (1) of Section 383 whoever contravenes any provision in any of the sections specified in the first column of schedule IV shall be punishable with fine. The schedule IV does not Specify Sub-section (2) of Section 317 as one of the provision for the contravention of which a person shall be punishable with fine. It thus appears that if a person takes a licence on condition of payment of the requisite licence fee but does not pay the same, he does not make himself liable for prosecution. On the other hand, if be does not take the licence at all, he contravenes the provision of Sub-section (2) of Section 255, a section specified in schedule IV and, therefore, makes himself liable for prosecution u/s 383 of the Act.

It is ground that the Respondent had already erected a wooden cabin and paid licence fee at the rate of Rs. 2/ - per sq. feet upto the year 1969-70. It is also in evidence that the Respondent has paid licence fees at the rate of Rs. 4/ - per sq. feet for the years 1970-71, 1971-72 and 1972-73. But for the year 1969-70 he did not take a licence though he was holding the cabin for the whole of the year. His act therefore amounted to contravention of Section 255(2) of the Act for which he was liable to conviction u/s 383 of the Act.

Sub-section (6) of Section 337 of the Act provides:

Whenever any person is convicted of an offence in respect of the failure to obtain a licence, or permission required by the provisions of this Act or any rule, or regulation or by law made under this Act the Magistrate shall, in addition to any fine which may be imposed, recover summarily and pay over to the municipal council the amount of the fees chargeable for the licence or permission and may in his discretion, also recover summarily and pay over the municipal council such amount, if any, as he may fix as the costs of prosecution.

The evidence of p.w. 1 Rajakishore Mohanty and Ext. 2 the order of the District Magistrate (exercising the powers of the municipal council) clearly establish that the rate of licence fee was enhanced from Rs. 2/ - to Rs. 4/ - with effect from 1.4.1969. It is in evidence that the persons holding wooden cabins on municipal lands were required by the notice (Ext. 4) to take licences for the year 1969-70 on payment of licence fee at the rate of Rs. 4/ - per sq. feet. This notice was duly served by beat of drums in the Malgodown area where the Respondent held the cabin. On his conviction for failure to obtain a licence the Respondent was liable to pay a sum of Rs. 1092/ - as the amount of fees chargeable for the licence in addition to the sentence of fine awarded against him.

In the case of Jagadaditya Sinha v. Balasore Municipality 1974 (1) C.W.R. 22, the case for the Municipality was that the accused was in occupation of municipal road side land under a licence and though he was paying licence fees for the occupation of the same, he did not pay licence fees for the year 1970-7). The plea taken by the accused was that he did not get any licence from the Municipality for occupation of this land bur he got the land from the District Board about 30 to 40 years back and he was paying only holding tax for the same and was not liable to pay any licence fees. The Municipality did not prove any licence to have been taken by the accused. It was in this context that the learned Chief Justice made the observation that if a licence had, in fact, been proved to have been granted to the accused and it was further proved that the accused did not pay licence fee, then he was liable to conviction u/s 255(2) read with Section 383 of the Act. With great respect we are unable to subscribe to the view that for non-payment of licence fees the defaulter licensee is liable for conviction u/s 383 read with Section 255(2) of the Act. As already indicated, if a person does not take licence at all he contravenes the provisions of Section 255(2) and makes himself liable for conviction u/s 383 of the Act.

On the analysis presented above, the appeal is allowed, the order of acquittal passed by the learned Sessions Judge is set aside and the order of the trial Court is restored. The result therefore, is that the Respondent is convicted u/s 383 read with Section 255(2) of the Orissa Municipal Act and sentenced to pay a fine of Rs. 40/ - or in default to undergo simple imprisonment for 20 days. We further direct u/s 337(6) of the Act that he should pay a sum of Rs. 1092/ - as fee chargeable for the licence.

R.N. Misra, J.

I agree.