Lal Singh vs Arrah Municipality

Wort, J.—The applicant in this case has been convicted u/s 263, Clause (1), Bihar and Orissa Municipal Act, 1922 for having carried on a business of a flour mill by means of an oil engine without a license as specified by Section 259,. Clause (1), Sub-clause (14) of the same Act. Clause 259 of the Act provides that the commissioners at a meeting may fix certain places as being places within which certain trades and business shall not be carried on unless with the license of the commissioners and then in 14 categories the section provides the class of business which the commissioners can prescribe in the manner set out in the section. Now, I have no doubt that in this case there was a meeting of the commissioners and they resolved that certain trade should not be carried on within the area of that municipality without a license. The resolution took the form of Section 259 itself, that is to say, they contented themselves with repeating as a part of their resolution the 14 sub-clauses of Sub-section 1, Section 259. It is equally clear that no notification whatever to the public was made of this resolution. The resolution itself was passed in the month of July 1924. The prosecution in this case commenced on 21st July 1927. There is no suggestion by the municipal authorities that any notice was given to the applicant or any other member of the public for that matter, that the business in which he was engaged is one for which it was necessary to obtain a license and without any notification whatever, either of the character which I have just mentioned or to the effect that he had been guilty of a breach of their resolution they commenced this prosecution. The Magistrate, by whom the case was heard, convicted the applicant and fined him a sum of Rs. 30. There were some intervening proceedings in which the matter came before the High Court, but ultimately the case went on appeal to the Senior Deputy Magistrate of Arrah and whilst upholding the conviction he reduced the fine to one of Rs. 20.

Now, the points that come to be determined in this case are: first, whether the resolution, which was passed by the municipality, was in accordance with law; and the second point was whether the facts of the case come within Sub-clause (14) and whether on those facts the applicant was rightly convicted. With the latter point I propose to deal first. It is not said in this case that he was not carrying on any trade or business which was offensive in itself, but that he was using an oil engine to assist him in his business and that was the breach of the clause which was complained of. It is argued by the learned advocate for the applicant in this case that the facts in this case do not come within this sub-clause. Sub-Cl. (14) reads:

Any manufacture, process or business from which offensive or unwholesome smells may arise, or which has been declared by the Local Government by notification to be dangerous or offensive.

The use of an oil engine, although it may be and in fact is a machinery by which the manufacture is carried on, yet at the same time it cannot be said that it is a manufacture; nor can it, in my judgment, be said to be a process within the sub-clause. The other expression used in the clause is:

or business from which offensive or unwholesome smells may arise.

Again the oil engine may be a part of the machinery by which the business may be carried on. But it is perfectly clear that if the municipal authorities so desire they could prevent an old engine without a license if it came within the other part of Sub-clause (14), that is to say:

or which has been declared by the Local Government by notification to be dangerous or offensive.

If the Local Government had declared in this case that the use of machinery within certain areas was offensive, then that would have settled the matter and a conviction would have been warranted. In my Judgment the plain meaning of the words "manufacture, process or business" do not contemplate the use of an oil engine. But I do not necessarily decide the case on those grounds; but there seems to be a point in this case which is fatal to the prosecution. I have already stated that it must be assumed in this case that a resolution was passed. It is not contended for a moment that it has been published in any way, and it is argued indeed by the learned Counsel for the respondent that no publication is necessary. We have to remember in this case that a prosecution of this character is of a quasi penal nature; and the result of the argument of the learned Counsel would be that there may be a meeting of the Council creating an offence as they have undoubtedly done in this case, without any notification to the public, and immediately after the meeting which declared a certain business to be an offence under the Act without a license having been granted they might proceed to prosecute and to get convicted a person whom they alleged was guilty of a breach of their resolution. It seems to me that quite apart from the rules of construction which I must apply to this case it is only necessary to state those facts to show how absurd the contention is. I have yet to learn that a municipal authority, or for that matter a Government, can make an offence without there being a notification of some kind to the public in general. An offence of a breach of the regulation is in fact an offence under the Act under which the regulation purports to have been made. In my judgment in this case it was necessary for the municipal authorities, the commissioners, that is to say, when they came to the resolution u/s 259, to notify it to the public in some manner. In this connexion I have been referred to Section 356 of the same Act, which is in Ch. 12 and deals with procedure. Section 356 provides that

every by-law, order, notice or other document directed to be published under this Act shall be written in, or translated into, etc., etc.;

in other words, it provides the method of publication. It states at the end of the section that a copy shall be posted up in a conspicuous position at such office, and in such other public places as the commissioners may direct.

Now it is contended on behalf of the Municipal Council in this case that the resolution making necessary the license u/s 259 does not come u/s 356. I see nothing in the section apart from one phrase that would in any way justify that argument. In the first place, on principle it seems to me to be only just that when the commissioners are creating an offence in this way it would be necessary to notify it as I have already stated. The phrase, which appears in Section 356, which learned Counsel says excludes the provisions of Section 259 from the provisions of Section 356 is:

or other document directed to be published under this Act shall be written in.

In my judgment of Section 356, or the clause to which I have referred, the word "directed" does not refer to a direction by the Act; but it means a direction by the people or the body, i.e., in this case the commissioners, who are granted the power to make by-laws, orders or to issue notices; that is to say, the section means that when the commissioners come to the conclusion that a by-law, order or notice shall be made or issued, then it shall be published in a certain manner. In order to support the argument of the learned Counsel on behalf of the municipal authorities, I was referred to Section 115 as an illustration of the suggestion that the Act in some instances at any rate directs the publication of certain orders or notices. In other words unless the Act directs a notice or order to be published, then it is unnecessary to publish it. The illustration u/s 115 is the case of an assessment list; but it in no way supports the argument, that Section 115 is a section which specifically lays down a particular method of publication of the matter therein dealt with, that is to say the assessment list. And if in any way it can be read with Section 356 for the purpose, which the learned Counsel for the opposite party desired the Court to read it, then all that can be said is that Section 115 and Section 356 are contradictory; because, whereas Section 356 provides that notices or orders, etc., shall be published in a certain way, Section 115 provides that they should be published in another way. In my judgment the Court gets no help from Section 115 and I fail to see in any way from the Act any support for the contention that the words "directed to be publish" mean directed by the Act rather than directed by the persons, who have been granted powers under the Act. Quite a part from this interpretation, it seems to me the fundamental principle of law which applies, that if an offence is to be created by a by-law or order or notice, then it is necessary for these to have power under the Act to create such offence to publish the fact so that the public at large may know that such an offence has been created or as in this case that it is necessary in order to carry on certain trades and business to have a license for that purpose.

In my judgment, for the considerations, which I have stated, this conviction cannot stand and must be set aside, and the fine, if paid, must be remitted.