Muthu Balu Chettiar and Others vs The Chairman, Madura Municipality

The petitioners have been convicted by the Bench Magistrates of Madura for failing to take out a license u/s 249 of the Madras District

Municipalities Act and have now put in a petition asking for a revision of that order. The offence of which the petitioners have been convicted is

that of failing to take out an annual license for the rice mills owned and worked by them on the ground that a rice mill is a place used for the

purposes specified in Schedule V, Clause (q) of the Act, namely, ""using for any industrial purposes any fuel or machinery or doing in the course of

any industrial process anything which is likely to be dangerous to human life or health or property"". The contention for the petitioners is that when a

permission to construct or establish a factory or instal in any premises any machinery, etc., has been obtained u/s 250 of the Act, no annual license

u/s 249 need be obtained as the two sections are mutually exclusive. This is the view taken by a Division Bench of this Court (Devadoss and

Waller, JJ.) in Madura Municipality Vs. P.M. Muthu Balu Chetty, , whereas the contrary view was taken in In Re: Muthu Balu Chetti, by Odgers

and Madhavan Nair, JJ. These petitions have therefore been placed before this Bench for a decision on the question. Waller, J., was of opinion

that a distinction is drawn in the Act between industries and factories, the former being dealt with in Section 249 and the latter in Section 250, and

based this view to a great extent upon the supposed anomaly that the contrary view would mean that when a Municipal Council had granted

permission for the erection of a factory u/s 250 it would be open to the Chairman to refuse a license for its subsequent working. The anomaly is

more apparent than real, for the Chairman''s decisions u/s 249 are subject to an appeal to the Council.

When the sections are closely examined, it is apparent that Section 249 is much wider than Section 250; for, it purports to deal with ''any place''

which is used for any one or more of the purposes specified in Schedule V and the word ""place"" certainly includes a factory or workshop, for

Schedule V undoubtedly includes some factories. The word ''place'' therefore must be taken to include not only a factory, workshop, or work

place as mentioned in Section 250, Clause 1(a) but any other place used for the purposes mentioned in Schedule V. Section 250 clearly applies

only to factories, workshops or work-places in which it is proposed to employ steam-power, water-power or other mechanical-power or

electrical-power, or places in which any machinery or manufacturing plant driven by steam, water or other power is installed. The places referred

to in Section 250 are those of a more important character, and before any person can construct or establish any such factory he is bound to get the

permission of the Council to do so. That permission is given solely for the construction, establishment or installation, as is also apparent from

Clause 5 of the section which says that the provisions of Section 197 dealing with new buildings shall not be deemed to be dispensed with. Section

250 does not deal with the user of such places but only with their inception. When the owner wishes to use them, and they are such as come within

Schedule V, Clause (q), Section 249 becomes applicable and the owner must take out an annual license from the chairman of the Council. This is

the view that was taken by Odgers and Madhavan Nair, JJ., and we think that this is certainly the correct view.

The question of whether a rice mill is likely to be dangerous to human life or health or property within the meaning of Schedule V, Clause (q),

does not arise in these cases, for it has been found as a fact that the rice mills in question are dangerous to human life and health. It is consequently

unnecessary to go into the further question of whether the words in that clause ""which is likely to be dangerous to human life or health"" govern the

words ""any fuel or machinery"" or not.

There is one other point on which it is desirable to express an opinion, for it was argued before us, and that is whether a Magistrate should take

cognizance of a plea raised in a case of this kind questioning the validity of the order disobeyed by the accused. The offence charged is u/s 338 of

the Act and consists of using the rice mill without the license prescribed by any rule, by-law or regulation made under the Act. The necessary rules

have been framed in this case and it is not within the province of a Criminal Court to determine whether such rules have been validly framed, a

matter which should be left for determination in a Civil Court.

Mr. Vaz on behalf of the Municipal Council raised a preliminary point that this Bench has no jurisdiction to try these cases. The petitioners

applied to the Sessions Judge of Madura to refer them u/s 437, Criminal Procedure Code, to this Court and they are the cases dealt with by

Odgers and Madhavan Nair, JJ. Instead, however, of finally disposing of these cases they returned the reference in the connected cases to the

Sessions Judge and asked him to deal with them in the light of their judgments. The Sessions Judge has accordingly dismissed all these petitions.

Now the petitioners come again before this Court, some impeaching the original order of the Bench Magistrates and some the final order of the

Sessions Judge. So far as the Sessions Judge''s order is concerned, it is clearly open to revision by this Court and it is competent to us to deal with

those cases. As regards the other petitions dealing directly with the Bench Magistrates'' order it cannot be said that the question is res judicata, for

they were not finally disposed of by the Bench which has already heard them. Even if a case has been heard by one Bench, but is not finally

disposed of, it is open to the Chief, Justice to ask another Bench to proceed with the trial of the case, and that has been done in the present case.

Apart from this it is questionable whether under the very wide powers given by Section 439 of the Criminal Procedure Code this Court cannot suo

motu interfere in cases of this sort where final orders have not already been passed by it. We think that the convictions by the Bench Magistrates

are correct and the petitions are all dismissed.