Muzafferpur Municipality vs Tara Prasad and Others

Rowland, J.—This is a reference by the District Magistrate of Muzafferpur u/s 438, Criminal P.C., asking this Court to revise the judgment and order of a Magistrate of the Third Class in Muzafferpur whereby the accused Tara Prasad was acquitted of an offence, punishable u/s 263 read with Section 259, Bihar and Orissa Municipal Act, consisting in the keeping without a licence within the Muzafferpur Municipality of a place used for the trade or business of a surkhi mill. It is not denied that the opposite party had been for some. time past Working a surkhi mill within the Municipality and was operating his surkhi mill in the month of March 1939, in which the present complaint was presented. There was formerly no prohibition u/s 259, of the keeping of a surkhi mill within the Municipality without a license. It is not one of the trades or businesses referred to in Section 259, Sub-section (1), Clauses (i) to (xiii) but the Section can be made applicable to other manufactures, processes or businesses which are declared by the Local Government by notification to be dangerous or offensive under Clause (xiv). In pursuance of this clause the Local Government by Notification 1181 L.S.G. dated 15th March 1937, declared that the running of surkhi mills was offensive.

The notification was duly published. As a result of this the provisions of Section 259, Sub-section (1) became operative, that is to say, it was now within the power of the Commissioners at a meeting to fix local limits within which no place might be used for the purpose mentioned without a license. In that connexion Sub-section (3) of Section 259 also became operative whereby the Commissioners at a meeting became empowered, subject to a maximum to be fixed by the Local Government to levy a fee. The Local Government fixed as maximum fee for such a license the sum of Rs. 100 by Notification 1182 L.S.G., dated 15th March 1937. The Commissioners at a meeting held on 29th July 1938, resolved that within the whole area of the Municipality no place was to be used for a surkhi mill without a license. They also resolved that the fee for a license for a surkhi mill should be Rs. 100. These proceedings of the Municipal Commissioners are said to have been published and it is certain that the opposite party, the present accused, had knowledge of them, for there are on the record two petitions by way of protest, one presented by this opposite party alone and one by himself and some other owners of surkhi mills, against the magnitude of the fee.

The point raised in the trial Court which succeeded there was that the resolutions of, the Municipality which require licenses to be taken out for running surkhi mills and which fixed the fee to be levied are rules framed by the Municipal Commissioners to which Section 354, Municipal Act, is applicable. In this Court for the respondent it has been contended that they are rules or by-laws, and in either case subject to the provisions of Section 354. That Section enacts in two Sub-sections that the power of the Commissioners to make rules and to make bye-laws shall be subject to the condition of such rules not taking effect until they have been confirmed by the Local Government. In the case of bye-laws, previous publication and Gazette publication are also conditions precedent to the taking effect of the bye-laws.

But the fixing of local limits [Section 259, Sub-section (1)] is not the making of a rule. It is more of the nature of an order applying a Section of the Act. The nature of a rule under the Act can in general be gathered from a reference to the various Sections in which the rule making power is conferred. Such Sections occur in various parts of the Act which is thus arranged that power to make rules governing a particular subject is placed at the end of that part or chapter of the Act dealing with the particular subject. Thus, we find the Local Government is given power to make rules regulating municipal fund and accounts in Section 81 which is at the end of Chap. 3, power to make rules in connexion with assessment and collection of taxes u/s 163 which is at the end of Chap. 4, power to make rules regarding drainage schemes, water works, etc., u/s 325 which is at the end of Chap. 9, and so on.

The Commissioners are given power to make rules in Sections 38, 42 and 52, and these rules deal with limited matters affecting the internal administration of the Municipality and its office. Thus, Section 38 authorizes rules for pensions and provident funds of municipal servants. Section 42 authorizes rules as to the duty, appointment, punishment and removal of municipal officers and servants, and Section 52 authorizes rules governing the election of Chairman, Vice-Chairman and President of Municipal meetings and the conduct of business.

So the order making a license necessary for owners of surkhi mills is not in any way analogous to any of the rules which either the Local Government or the Commissioners at a meeting are authorized by the Act to make, and I am quite dear that such an order is not a rule at all.

Now I turn to the alternative submissions put forward here that the order is to be regarded as a bye-law. The scheme of the Act in the matter of empowering the Commissioners to make'' bye-laws is somewhat similar to that in the matter of powers to make rules; that is to say, at a number of places in the Act power is given to make bye-laws dealing with a particular subject such as in Section 153 for the registration of dogs, in Section 195 to make bye-laws for the regulation of buildings, in Section 234, to make bye-laws regulating the use of public water supply, and so on.

The power to make bye-laws in connexion with offensive and dangerous trades, occupations or processes is conferred by Section 264, and the bye-laws which may be made under this Section may provide for inspection and regulation of the conduct of business in a place used for any of the purposes mentioned in Section 259 and also generally for the prevention of nuisance affecting the public health, safety or convenience. The order requiring licenses to be taken out and the order fixing a fee in respect of the licenses are not matters of the same nature as the matters to be provided for by bye-laws u/s 264, and in my view these orders can no more be regarded as bye-laws than they can be regarded as rules. The resolutions were passed not under the powers conferred by Section 264 but under the powers conferred by Section 259, Sub-section (1) and Section 259, Sub-section (3). That being so, these orders did not require u/s 354, Municipal Act, to be confirmed by the Local Government as a condition precedent to their taking effect.

It follows from this that to use any place without a license for the purposes of a surkhi mill within the Muzafferpur Municipality is an offence within Section 263, Sub-section (1), Bihar and Orissa Municipal Act. This may be sufficient to dispose of the point of law directly raised in the reference so far as the requirement of taking out a license was concerned and the contention that this requirement had not become effective in law for want of confirmation by the Local Government.

A further point has been argued with reference to a resolution taken at the same meeting of the Municipal Commissioners imposing certain conditions on the grant of a license. It was resolved by the Municipal Commissioners that conditions be imposed on the grant of licenses to the effect that no mill of the aforesaid nature shall be erected within the Municipal limit if it lies within a distance of 300 yards from the nearest habitation. Other conditions included provision for proper arrangements for effective removal of all offensive or unwholesome matter for inspection by Municipal Officers and for keeping raw materials safe from damp or rain. These are matters of the kind which Section 264 empowers the Commissioners to regulate by bye-laws: and had this been a prosecution for breach of those conditions u/s 263(2) the question might arise whether their confirmation by the Local Government was necessary to make them effective. But this being a prosecution u/s 263(1) the question does not arise.

It is represented that the respondent, who in May 1939 in pursuance of an application by him for a license remitted by money order, the license fee of Rs. 100 has been treated as ineligible for such a license on the ground that the position of his mill is not beyond the distance of 300 yards from the nearest habitation, and I am asked to pronounce that the conditions laid down for the grant of license are of the nature of rules or bye-laws, that they are ineffective unless and until confirmed by the Local Government and that this point is not unsubstantial because the Local Government itself in recommending the Municipalities to introduce licensing of oil, flour and surkhi mills had expressly cautioned Municipalities that the requirement of 300 yards clear distance from the nearest habitation ought to be enforced in the case of mills already existing.

It is also suggested that to attach such a condition precedent to the grant of a license is in contravention of Sub-section (2) of Section 259 which enacts that a license for any of the purposes mentioned in Sub-section (1) is not to be withheld unless the Commissioners have reason to believe that the business which it is intended to establish or maintain would be offensive or dangerous to persons residing in or frequenting the immediate neighbourhood. The question of the propriety of a prosecution might arise if at the date of the institution of the proceedings before me the respondent''s position had been that of a person who had applied and paid the fee for a licence which the Commissioners were not legally justified in withholding from him, on the ground that any restriction on the grant of licenses in contravention of Section 259, Sub-section (2) would be ultra vires of the Commissioners.

Had that been the position of the respondent, the argument might require serious consideration. But the respondent''s application for a licence was not presented till after these proceedings against him had commenced and the present reference is to be decided on the basis of the position as it was on the date when the proceedings began. On that date if the respondent without having a licence and without having applied for a licence was carrying on the business of the surkhi mill, his legal liability u/s 263, Sub-section (1) cannot be negatived on the grounds given by the trial Magistrate.

It is further represented that though the respondent had not, before these proceedings started, applied for a licence, he had presented a petition for a reduction of the licence fee, and had not received orders on that petition. This fact does not alter the legal position, though it is open to him in the event of a conviction to put it forward as a matter to be considered in extenuation of the sentence to be passed. The reference is accepted, the acquittal of the respondent is set aside, and the case remanded to the Sub-Deputy Magistrate, who will dispose of it according to law after giving the parties an opportunity of being heard and either party who may wish it, an opportunity of adducing further evidence.