The Sanitary Inspector, Corporation of Madras vs Parasuraman

Somasundaram, J.—One Kanniah Lal, not now alive, was the owner of the private market situate at No. 80 Bazaar Road, Mylapore. Parasuraman, the Respondent herein, was collecting the fees from the occupants of the several stalls in this market, as a lessee under him. He did not take the requisite licence for running this market for the year 1967-68. Nagarajan, P.W.1. the Sanitary Inspector attached to the Corporation, detected this during his inspection on the 26th April, 1967. He then issued the notice, Ex. P-1 to him. Even then, he did not take out the licence. Complaint was then filed against him for an offence u/s 304, read with S. 357 of the Madras City Municipal Corporation Act, 1919, as amended by Act X of 1936. He contended that the licence should be taken only by the owner of the market and that as such he could not be prosecuted for running the market without a proper licence. The Sixth Presidency Magistrate accepted this defence and acquitted him. This appeal is directed against this acquittal.

S. 303 of the Madras City Municipal Act, which deals with the establishment of private markets, reads thus:

(1) The council shall determine whether the establishment of new private markets, for the sale of or for the purpose of exposing for sale animals intended for human food or any article of human food shall be permitted in the city or any specified part of the city.

(2)(a) No person shall establish any new private market without or otherwise than in conformity with a licence issued by the Commissioner with the sanction of the central committee which shall be guided in giving or refusing to sanction, by the resolutions of the council passed under Sub-S.(1)(b). Applications for such licence shall be made by the owner of the place in respect of which the licence is sought not less than forty-five and not more than ninety days, before such place is opened as a market.

Sub-S. (1) of S. 304 states that no person shall without or otherwise than in conformity with an annual licence granted by the Commissioner in this behalf continue to keep open private market. Under Sub-section (2) the Commissioner may insist upon such conditions relating to sanitation, drainage, water supply, width of path, weights and measures, etc. Under Cl.(b) of Sub-S.(2) of this section, he may withhold the licence until the owner or occupier executes such works as may be specified in the order. S. 305 reads that it shall not be lawful for any person to sell or expose for sale any animal or article in any unlicensed private market Thus, the establishment and continuance of a private market without a licence and without a renewal of such a licence and the selling or exposing for sale by vendors, in such markets which are run without a licence, are prohibited by these three sections. These three sections are also shown separate offences in Schedule VII of the Act. S. 308 confers upon the Commissioner power to make regulations for the maintenance of these markets. Under Sub-S.(2) of S. 304 the Commissioner may by an order grant or refuse to grant or renew such a licence or withhold a licence until the owner or occupier executes such works as may be specified in the order. Under S. 306, the Commissioner may by notice require the owner, occupier or former of any private market for the sale of any article of food, to construct approaches entrances, passages and so on. Thus we, see that these sections specifically refer to the owner, occupier or former in different places, maintaining a clear distinction. "Owner" as defined in Clause 17 of Section 3 includes (a) the person for the time being receiving or entitled to receive whether on his own account, or as agent, trustee, guardian, manager or receiver for another person or for any religious or charitable purpose the rent or profits of the property in connection with which the word is used (b) the person for the time being in charge of the animal or vehicle in connection with which the word is used.

Kanniahlal is the owner of the market. The accused is not a trustee, guardian, manager or receiver or agent, so as to come within the purview of this definition. He is neither a seller nor a person who exposes for sale any article in any unlicenced private market. Section 304, under which he stands charged, relates to the keeping open of a private market otherwise than in conformity with an annual licence and without having the licence renewed. For establishing a private market as per Clause (b) of Sub-section (2) of Section 303 the owner alone should apply for a licence. The accused is not the owner. For his failure to carry out certain improvements, he was separately prosecuted in M. No. 849 of 1967. He has been convicted. He has not appealed against his conviction. Section 306 of the Act enables the commissioner to require the owner, occupier or former of any private market to construct approaches etc. He has failed to carry out the directions and for that he has been rightly convicted. The learned Magistrate has correctly acquitted him for the offence u/s 304 of the Act.

The appeal fails and the same is dismissed.