Muruga Konar vs The Madurai Municipality Thought Commissioner

Krishuaswami Nayudu, J.—This appeal arises ant of a suit instituted by the, appellant agents the Madura Municipality for a permanent injunction restraining them form starting or laying continuing any prosecution against the plaintiff for alleged trade in mutton in a stall in No. 37 Khannaiayam 1st sided Madurai Both the Courts rejected the plaintiffs claim. It is now contended in appeal that at any let for the period from 17th November 1947 to 31st March 1948 the plaintiff preferred an application to the Municipal Commissioner, Madurai, under Ex. A. 15 asking for a grant. of license for that period for the purpose of carrying on the business of a total stall. The reply rejecting the request is Ex. A. 16 dated 26th March 1948. It says:

License requested for a meat stall at No. 37 Khanpalayam first street was refused as running of the trade in the premises will be prejudicial to the interests of public health, safety and welfare of the inhabitants of the locality.

Relying on Sub-Cl. (11) of S. 321 of the District Municipalities Act it is argued that as there has been failure on the part of the Municipality to communicate to the applicant with in thirty days after the receipt of his application, it must be deemed that the application had been allowed for the period for which it was made. The relevant portion of S. 321 (11) is in the following terms

and save as otherwise specially provided in this Act, if orders on an application for license or permission or for registration are not communicated to the applicant within thirty days after the receipt of the application by the executive authority, the application shall be deemed to have been allowed for the year or for such less period as is mentioned in the application, and subject to the law, rules, by-laws, regulations and all conditions ordinarily imposed.

The further contention is that if S. 321 (11) is applicable, it will not be open to the Municipality to prosecute the plaintiff for carrying on the business of meat stall during the period from 17th November 1947 to 31st March 1948. The refusal of the license subsequently is relied upon to show that S. 321 (11) would not apply. The question was considered by a Bench of this Court with reference to a corresponding provision in the earlier Act in In re Venkatasubbayya 40 Mad. 589, where an application was made to the Chairman of the Municipality for the continuation of his license for boiling paddy at a certain place during the financial year and the license was refused more than thirty days after the receipt of the application by the Chairman and the applicant used the place for boiling paddy notwithstanding the refusal. It was held that the applicant was not guilty of an offence under the corresponding provision of the District Municipalities Act, applying the provision corresponding to S. 321 (11) to the facts of that case. In the circumstances it was held that as there was no communication within the period prescribed under S. 188 (5), i.e., corresponding to S. 321 (11), L) the application shall be deemed to have been granted Similarly in respect of a prosecution launched against the applicant for rennin''s tea shop without a license, he having already applied but having received a reply of refusal after forty-five days, Howell, J, in In Re: Abdul Razack Sahib, held that under the corresponding provision of S. 365 (10) of the City Municipal Act, the license must be deemed to have been granted and the prosecution could not therefore be sustained. It is however urged on behalf of the Municipality that S. 269 of the Act prohibits any person without a license from carrying on a trade of a butcher and in the face of such an express prohibition Cl. (11) of S. 321 would not apply and since the provision which deems that an application has been allowed consequent on the non-receipt of a reply within thirty days of the receipt of the application is qualified by the following clause, namely, "save as otherwise specially provided in this Act", it is urged that S. 269 is the special provision which excludes the application of the clause granting this privilege. I am unable to accept this argument for the reason that the specific provision that is contemplated is a specific provision to the contrary'' A specific provision contrary to what is laid down under Cl. (11) must be found somewhere in the Act to take away a case from the application of that sub-clause. It is not suggested that there is any such provision to the contrary except the general provisions relating to the granting of licenses and the prohibition of trade without such licenses. This case is governed by the decision of the Bench. In re Venkatasubbayya 40 Mad. 589 and to the extent of the period from 17th November 1947 to 31st March 1948, it must be deemed by reason of the failure of the Municipality to intimate their refusal within thirty days that license has been granted, and that therefore for the carrying on of any trade during the said period there could be no prosecution even though the license was subsequently refused. It is stated by Mr. Satyanarayana Raju on behalf of the Municipality that there is no pending prosecution against the applicant for his having carried on the trade between 17th November 1947 and 31st March 1948. In view of that statement which is not contradicted by the learned Counsel for the appellant, there is no reason to interfere with the decision of the lower appellate Court, though if there is such a prosecution, the appellant would be entitled to an injunction restraining the Municipality from proceeding with such a prosecution. I am in agreement with the lower appellate Court that there cannot be a general injunction restraining the Municipality from prosecuting the applicant in respect of earlier or future offences under the Act, if any. In the result the appeal has to be dismissed but in the circumstances of the case each party will bear their respective costs.