Lalit Kumar Bose vs The State, Sanitary Inspector Ward VIII (Howrah Municipality)

Roxburgh, J.—This is a Rule against an order of conviction under sec. 386 (1)/488 of the Calcutta Municipal Act as applied to Howrah. The accused had a license under sec. 386 to work a smithy for the year 1949-50. On the 30th July, 1948, a letter was sent by the Health Officer in the following terms:-- As there is a serious local complaint about running the blacksmith shop in the heart of the locality, license under sec. 386 of the Calcutta Municipal Act for the said shop is cancelled herewith. I, therefore, ask you to close the shop at an early date or legal steps will be taken in the matter.

The accused replied making some protest pointing out that the license had been cancelled a fortnight after issue and making the matter to be reconsidered. On the 2nd September, the same officer again wrote to the accused in the following terms:--

In continuation of this office No. 2813 H dated 30th July, 1948, I have to inform you that as your blacksmith shop is creating nuisance and local people have serious objection to its working, license under sec. 386 of the Calcutta Municipal Act for the shop has been cancelled. As such, I ask you to close the shop within 15th September, 1948, or legal steps will be taken in the matter without further reference.

The accused not having closed his shop, an application was made on the 24th September for his prosecution for carrying on the shop without a license from 21st September, 1948. The case dragged on for about a year. The accused filed a civil suit in respect of the order of cancellation. This was dismissed by the trial Court and an appeal is pending before the District Judge of Howrah. When the case was finally tried the accused''s defence was that, in fact, he still had a license. The trial Court held that the Vice-Chairman had revoked the license and had powers to revoke the license. "Whether a license could be legally revoked has been decided by the Civil Court. The Criminal Courts have no jurisdiction to decide if a license issued can be legally revoked nor to decide if there were enough materials to revoke. The accused himself admitted that he had a smithy still at the address. Hence I find accused guilty under sec. 488/386 (1), Calcutta Municipal Act and convict and sentence him to pay a fine of Rs. 100, in default, S.I. for 15 days."

The power to cancel a license is given in sec. 498 (3) of the Calcutta Municipal Act which shows that this may be done "if any of its considerations or restrictions has been infringed or evaded by the grantee. ."

It will be seen that the letter of 30th July which purports to be the order cancelling the license explicitly shows that the conditions required under sec. 498 (3) were not fulfilled. The reason given is not I reach of the conditions of the license but merely because "there was a serious local complaint."

The later letter of 2nd September did not refer specifically to any particular condition of the license which had been infringed or evaded; it merely stated that the smithy was a nuisance and again repeats that the public were complaining.

The first question to lie decided is whether a criminal Court has any jurisdiction to consider whether an order cancelling a license is a valid order or not. In the case of S.R. Varma v. Emperor 37 C.W.N 344 (1939), Mitter, J., had considered the question of refusal of a license and held that the Criminal Court should investigate the question whether the refusal to grant a license had been in excess of the authority of the Corporation." In the case of S.P. Thiruvengadasami Naidu v. Municipal Health Officer, Karaikudi ILR (1950) Mad. 118 (F.B.) a Full Bench of the Madras High Court has considered a similar question under the Madras Municipal Act and has made a distinction between (1) a case where the Court considers that the refusal by the statutory body was made entirely without jurisdiction and (2) a case where the Court may consider that the statutory body ought not to have refused the license on the merits. It was held that in the first case the Magistrate could hold that the refusal was bad but not in the second case.

In my opinion, with great respect, this distinction is a sound one and the view expressed in the Calcutta case, is too wide. The distinction will apply equally in the case of a cancellation of a license. For instance, so far as the order on the letter of the 30th July in this case is concerned, on the face of it clearly the order was passed without jurisdiction, for the reason given for the cancellation is not one which under sec. 498 (3) of the Act could justify the cancellation.

In any case, I think the learned Magistrate, therefore, was wrong in refusing to consider the question of the validity of the cancellation. He was not bound, in my opinion, by the decision of the Civil Court. In fact, it has been pointed out that the decision was based on the ground that the period of the license having expired, the suit had become infructuous, and that then there was no real decision at all on the validity of the order of cancellation. When we come to the letter of the 2nd September, we find that, at any rate, there is a definite expression of the decision of the Municipal authority, so to speak, on the merits, namely, it is held that the smithy is a nuisance, but even here the letter does not expressly state what condition of the license had been infringed. It was primarily the duty of the accused, if he was taking the defence that the order of the Municipality was without jurisdiction, to show that the license had not been cancelled on the ground of infringement of any of the conditions of the license; but in fact the accused did not even prove his license and the terms thereof. In any case, therefore, in order to have this conviction sustained, a further investigation will be necessary.

The terms of the license have, however, been set out before me and it is not disputed that these are the correct terms. I find that the first condition is: "The premises shall not unduly annoy the sense of sight, smell or hearing of persons residing in the neighbourhood." It is pointed out by the learned Advocate for the Petitioner that it is because the occupations referred to in sec. 386 (1) (b) are likely to create a nuisance that provision is made for then being licensed. Hence, the terms in the license cannot be that no nuisance what shall be created. In that case, the license will be useless and in those cases it will be impossible to carry on the particular occupation. The license, therefore, provides that there shall not be created any undue nuisance. Other clauses provide that the use of the premises shall not unduly endanger public safety or unduly affect the public-convenience, etc. Hence, the Municipal authorities can only cancel the license it they consider that the use of the premises is creating an undue nuisance, that is to say, presumably a nuisance greater than was anticipated when the license was given,--greater than reasonably necessary for carrying on the purposes for which the premises are being used. The letter of the 2nd September, itself shows that this consideration was not present to the authority which cancelled the license. The letter of the 2nd September, therefore, does not carry the matter any further than the letter of the 30th July. In that view, no useful purpose will be served by sending the case back for further investigation. The result is that this Rule must be made absolute. The conviction and sentence are set aside. The fine, if paid, will be refunded.