G. Mehrotra, J.
1. The applicant--Nadir Shah has filed this petition challenging the orders passed by the Magistrate as well as by the Sessions Judge on appeal. In order to appreciate the points raised, it will be necessary to refer to the facts in little detail.
2. The applicant--Nadir Shah is the owner of a certain land in Paltanbazar in the town of Gauhati. He permitted this land to be used as a market and under his permission, people used to come to this land and put up their stalls and sell fish and other articles. The Municipal Board started prosecution of the applicant under Section 217 of the Assam Municipal Act on the allegation that under the resolution of the Municipal Board, nobody could permit his land to be used as a market without licence from the Board.
The applicant had applied for a licence which was refused by the Board. Under the circumstances, the applicant, according to the Board, contravened the provisions of Section 216 of the Assam Municipal Act and was liable to be prosecuted and convicted under Section 217 of the said Act. The Magistrate, after hearing the parties and considering the evidence produced, held the applicant to be guilty and by his order dated 1st June, 1955 convicted him under Section 217 of the Assam Municipal Act and sentenced him to pay a fine of Rs. 200/-.
The Magistrate further imposed a fine of Rs. 40/- each day during which he continued to permit his land at Paltanbazar to be used as a market after the date of the order i.e., 1-6-1955. Thereafter, an appeal was filed by the applicant against that order which was rejected and a revision to this Court was also rejected.
It should be pointed out that the points raised before this Court in the earlier revision as well as before the court of appeal, only related to the validity of the conviction of the applicant. No point was raised before any of the courts as regards the illegality of the orders passed by the Magistrate, imposing the recurring fine of Rs. 40/- per day if the petitioner continued to disobey the order of the Magistrate dated 1-6-1955. The order of the Magistrate imposing such a fine thus became final.
Thereafter on 3-6-1955, an application was made by the Board to the Magistrate for an order under Section 218 of the Assam Municipal Act and the Magistrate directed that the market should be closed. The police was further directed to take necessary steps to avoid further use of the land as a market. The order was served on the present applicant and he, in compliance with that order, made a statement that he had directed the stall-keepers to remove their stalls and had asked them not to sell their goods on that land.
The police reported on 6-6-1955 that the order had been served on the petitioner and the stall-keepers had removed their stalls and the market was not being held with effect from 6-6-1955 on that land. What is the effect of this order will be considered by me later, but an order was passed by the Magistrate directing that the market should be closed under Section 218 on 3-6-1955, on the application of the Municipal Board itself. Thereafter it appears that the prosecutions were started against the persons who had still kept their stalls on that land under Section 218 of the Municipal Act. We are however not concerned with that matter.
3. Later on in March, 1957, an application was made by the Board to the effect that in spite of the order of the Magistrate convicting the applicant, he has taken no steps to close the market and the market is still being held on this land. The Magistrate thereafter considered the matter and on 18-3-1957 passed an order to the effect that as the petitioner had failed to deposit the fine imposed on him at the rate of Rs. 40/- per day from the date of the order till the date of the disposal of the case i.e., 18-3-1957; an amount of Rs. 26,160/- was due from the applicant and he was directed further to deposit the aforesaid amount by 18-4-1957 failing which a distress warrant was to be issued.
The petitioner in response to that order made some representation to the Magistrate and also made a separate application for taking effective steps to stop the holding of the market. Thereafter the matter was again considered by the Magistrate on 21-6-1957 and he ordered that in view of the order of the Magistrate confirmed by this Court, the petitioner was liable to pay the fine at the rate of Rs. 40/- per day and he further remarked that
'after having considered the evidence and the circumstances of the case, the irresistible conclusion was that the petitioner was bound to pay the daily fine upto 18-3-1958. The petitioner should take step to close the market forthwith if he wants to avoid further fine.'
He further issued a distress warrant. Against this order of the Magistrate, an appeal was filed before the Sessions Judge who, by his order dated 27-9-1957 dismissed the appeal on the ground that no appeal lay. In the circumstances, the present petition has been filed challenging the orders of the Magistrate as well as that of the Sessions Judge.
4. The contention of the counsel for the applicant is that even if the Sessions Judge's judgment is upheld by this Court that no appeal lay to him, it is open to this Court in the exercise of its revisional powers to set aside the orders of the Magistrate and in the circumstances, it is not necessary to examine the legality of the order passed by the Sessions Judge in appeal. The main question therefore is whether the order passed by the Magistrate is a valid order or not.
5. Two points have been raised by the counsel for the petitioner. It is firstly contended by him, that the order of the Magistrate dated 1-6-1955 by which he directed imposition of a daily tine of Rs. 40/- for continuous breach was itself illegal and therefore it cannot be given effect to. Section 217 of the Assam Municipal Act reads as follows :
'Whoever, being the owner or occupier of any land wilfully or negligently permits the same to be used as a market without a license under Section 216, shall be liable to a fine not exceeding two hundred rupees for every such offence, and to a further fine not exceeding forty rupees for each day during which the offence is continued after conviction or such offence.'
The contention is that this section contemplates an imposition of daily fine of Rs. 40/- on a second conviction and it is not open to the Magistrate when convicting a person at the first instance to impose a recurring fine of Rs. 40/- per day. Reliance was placed in this connection on the case of Ramzan v. The Municipal Board of Benaras, reported, in AIR 1926 All 204 and the case of Hurmat v. Emperor, reported in AIR 1932 All 109. On reading Section 217, in my opinion, there is some substance in the argument advanced by the counsel for the petitioner.
Section 217 gives a right to a Magistrate to impose a fine which necessarily implies that the fine can be imposed on the commission of an offence. It is said that if a man commits an offence by permitting the use of his land as a market without a license, he is liable to pay a fine to the extent of Rs. 200/-. If he continues to commit the offence, he is liable to pay a fine of Rs. 40/- each day of the commission of the offence.
The Magistrate, when dealing with the offence, committed by a person at the first instance is not in a position to know whether the person is going to continue the same offence and therefore he cannot really ascertain as to what fine should be imposed for the offence which may be committed in future, Fine to the extent of Rs. 40/- for each day, during which the offence is continued will necessarily be imposed after the first conviction for such an offence has been made. Section 217 of Assam Municipal Act contemplates two stages.
On the first conviction--a fine upto Rs. 200/-can be imposed and afterwards if he continues to commit an offence, the Magistrate is empowered to impose a daily fine for that period on inquiry. No doubt the language of Section 217 is different from the language of the U. P. Act which the Allahabad High Court was called upon to interprete; but in substance there is no difference between the two sections and therefore Section 217 does not by itself authorise the Magistrate to impose such a recurring fine at the first trial.
But there is a second hurdle in the way of the petitioner. It is true that this Court did not apply its mind at that stage to the question and did not decide it. But still, the order of the Magistrate was affirmed by this Court and it is not possible now to declare that order to be illegal, although in my opinion, Section 217 does not permit such a sentence at the first conviction. The order has thus become final.
The next point which was urged by the counsel for the applicant was that even assuming that that order was a correct order, in view of the fact that subsequently an order was passed by the Magistrate declaring the market to be closed, the petitioner cannot be said to have permitted the use of the market in contravention of the provisions of Section 217 and he cannot be said to have further continued to commit the offence so as to be liable to pay the fine of Rs. 40/- per day. Section 218 of the Assam Municipal Act provides as follows:
'The Magistrate, on the application of the Board, may order any land in respect of which a conviction shall have been obtained under the last preceding section, to be closed as a market place, and thereupon may take order to prevent such land being so used; and every person who shall sell or expose for sale any article intended for food or drink or any livestock or other merchandise on any land which shall have been so closed, shall be liable, for every such offence, to a fine not exceeding ten rupees.'
Heading the two Sections 217 and 218 together, the scheme of the Act appears to be that if the person permits the use of the land as a market without a license, he is liable to be convicted under Section 217. After the conviction of a person under Section 217, it is open to the Municipal Board to apply to the Magistrate for an order closing the market and if the Municipal Board so applies for the closing of the market and such an order has been passed, thereafter from the mere fact that some of the stall-keepers still continue to keep their stalls on the land, it cannot be said that the owner permitted the use of the land as a market & that the offence was continued to be committed by the owner of the land.
So far as he is concerned, as soon as the order was passed preventing him from allowing the land to be used as a market and the order has been served on him and he has asked the stall-keepers to remove their stalls, he cannot be said to be committing the offence to make him liable to pay a fine of Rs. 40/- daily. In the present case the police further reported on the 6th June that from that date the land has ceased to be used as a market. It is open to the authorities to prosecute the actual persons who continue to keep their stalls under Section 218 (2) of the Act.
6. In the present case, it appears from the facts that a number of prosecutions have been started against the stall-keepers which are still going on. The only circumstance pointed out by the counsel for the State from which an inference should be drawn that the offence is continued is that the land is being still used as a market by the stall-keepers. This makes the stall-keepers liable to prosecution under Section 218 (2).
But that does not mean that the petitioner who is the owner has permitted the land to be used as such and he is liable to pay a fine of Rs. 40/- per day. From the order of the Magistrate it appears that the Magistrate has not considered this aspect of the matter at all. He seems to be of the opinion that there has been some sort of defiance of the earlier order and therefore the petitioner is liable to pay the recurring fine as a penalty.
There is no question of any defiance of any previous order of the Magistrate. The order dated 1-6-1955 gave no direction to close the market. It was the order of 3-6-1955 under which such a direction was given. Therefore even if the stall-keepers still continued to do their business on the said land, it cannot be said that the petitioner was violating the order of the Magistrate. The Magistrate by his order of 1-6-1955 only imposed a fine in anticipation of the petitioner committing an offence in future.
If the petitioner continued to commit the offence and was thus liable to pay the fine, he only failed to carry out that part of the order which may be enforceable under the provisions of the Criminal Procedure Code like any other sentence of fine. Before ordering the petitioner to pay the fine, the Magistrate had to enquire if the petitioner continued to commit an offence. He could not direct the petitioner to pay an ascertained sum as a fine and assume that all this time he was continuing to commit the offence. The Magistrate says that it is for the petitioner to take necessary steps for closing the market.
The only steps which the petitioner could have taken was to move the Magistrate under Section 218 which has already been done by the Board and no further steps could possibly be taken by the petitioner to close the market. In this view of the matter, the petitioner was not liable to pay any fine even if the order is held to be valid. As the police report shows that the land ceased to be used as a market from 6-6-1955, the applicant at any rate will be liable to pay a fine of Rs. 40/- per day from 1st June to 6th June, 1955.
7. I therefore allow this petition and set aside
the order of the Magistrate directing the issue of
the distress warrant for the realisation of the money
amounting to Rs. 26,160/- and odd. The petitioner is however liable to pay the fine from 1st
June to 6th June, 1955 at the rate of Rs. 40/- per