Nazir Mian vs Emperor

Mohammad Noor, J.—The petitioner has been convicted and sentenced to pay a fine of Rs. 10 under S. 2, Cl. (4) of the Bye-laws of the District Board of Shahabad which penalizes the exposing of goods for sale on a road.

The conviction and the sentence have been upheld in appeal by the District Magistrate of Shahabad and the petitioner has come up in revision. The case against the petitioner was that he exposed goods for sale on a road which, was under the control of the District Board. The road as defined in the Bye-laws means:

any road under the control of the district Board or of any Local Board, and includes the roadway, slopes, side drains, road-side lands, etc., etc.

The exposure of goods by the petitioner was admittedly on flunks of the road at the junction of the Koilwar Chausa and Baliaghat roads. It does not seem to have been disputed before cither of the Courts below that the road in question is under the control of the District Board. The only defence was that the Dumraon Raj had a tank near about this junction, an annual mela is held there and shops are opened on the thinks of the road and that the Dumraon Raj has got a right of collecting tolls from the shop-keepers. It was urged before the Courts below that the Dumraon Raj has acquired by prescription a right of installing shop-keepers on the flanks of the road during the mela and therefore the opening of the shops by the petitioner, who did so under a licence from the Dumraon Raj, was not an offence. Mr. Yunus argued that the existence of the prescriptive right of the Dumraon Raj takes away the road, at any rate for the period involved, from the control of the District Board and therefore the bye-laws had no application. This point does not seem to have been taken before cither of the lower Courts. As I have said, the only point urged was that on account of the prescriptive right of the Raj the holding of the shops was not an offence if it was done under permission from the Raj. However in my opinion the question of existence or non-existence of any prescriptive right, on which I express no opinion, is absolutely irrelevant for the purposes of the present case. The District Boards are authorized under S. 138, Local Self-Government Act to frame bye-laws for the purposes of administering the Act. It is their duty to control, preserve and maintain public thoroughfare under their charge and therefore they were entitled to frame bye-laws in order to enable them to carry out the duties impeded upon thorn by law. No attempt was made before me to question the power of the District Board to frame the bye-law in question. Now, these bye-laws have the force of law and irrespective of any consideration; whether the Dumraon Raj were or were not previously installing shops on the flanks of the road at the point in question, the exposure of goods as mentioned in the bye-law will be an offence and as such punishable. The law has interfered with the civil rights, if any, and the law must be enforced.

Mr. Yunus drew my attention to the fact that from the record it appears that the shops were being held very year and no objection was ever raised by the District Board and no attempt was made to prosecute the shop-keepers though the bye-laws existed from 3936. This year the shop-keepers were prosecuted as an attempt was made by the District Board to make collection of tolls from the shop-keepers and for that purpose they leased out the collection of tolls to one Dasrath Ojha. There was a criminal proceeding between this lessee and the Dumraon. Raj and it seems that Dasrath Ojha the Lessee of the tolls from the District Board, was prohibited by the Magistrate from interfering with the collection of tolls by the Dumraon estate and an attempt of the District Board to prevent the estate people from having shops on the land was unsuccessful as the Magistrate, refused to interfere. All these in my opinion, do not affect the case. The question of the civil rights of the parties in respect of collecting tolls is as. I have said, beyond the scope of the present case. It is clear to mc that the exposure of goods for sale on the flanks the road under the control of the District Board is an offence and the petitioner has been rightly convicted. As sinning that on some particular days in the year the Dumraon estate installed shops and collected tolls from the shop-keepers without any interference by the District Board or without there being any prosecution that will not, take away the road from the controll of the District Board nor will the non-prosecution in the previous years affect the present prosecution. Mr. Yunus has contended that the trend of the judgments of the Courts below is "that, the petitioner has been convicted for" exposure of goods without permission of the District Board and that is practically nullifying the order under S. 144 passed by the Magistrate which was then in force. I do not read the judgments of the Courts below to mean that in their opinion the gist of the offence is not taking permission of the District Board. What they mean is that if the petitioner had taken permission from the District Board he would have been saved from the prosecution on account of the fact that the prosecution for violating the bye-laws can only be started by the District Board. This has got nothing to do with the fact whether or not the District Board has got a right of realising tolls or installing shops themselves. What I amt concerned with in the present case is that they have got full power of stopping the holding of shops by prosecuting those who do so and getting them convicted. That is the only issue before me, and in my opinion the petitioner has been rightly convicted. The application is rejected.