Leonard Stone, C.J.
1. This is a revisional application against the judgment dated December 18, 1946, of Mr. F.T. Deatkar, Honorary Presidency Magistrate, Municipal Court, Fort, Bombay, by which he fined the applicant Rs. 10 for an alleged offence against the Bombay Municipal Act, 1888.
2. As appears from the opening paragraph of the Magistrate's judgment, the applicant Mr. Jehangir B. Irani was charged under Section 401(1) of that Act read with Section 471, for conducting stall No. 469 in the Crawford Market on August 26, 1946, without a license from the Municipal Commissioner.
3. Section 401 provides that no person shall without a license from the Commissioner sell or expose for sale any animal or article in any Municipal market, and the penalties for a breach of that section are not only as is provided by Sub-section (2) of it, that is to say summary removal from the market, but also under Section 471 and the schedule therein referred to, a fine which may amount to Rs. 50. By Section 407 of the Act the Municipal Commissioner may make a charge for the occupation or use of any stall or shop in a Municipal market, and the fees to be charged therefor are to be approved of by the Standing Committee of the Municipality.
4. The applicant is an old stall-holder in the sense that he has had this stall and other stalls in the Crawford Market for many years, and pursuant to the practice of the past he has paid in respect of each stall a license fee of one rupee on April 1 of each year, and he has also paid in advance by quarterly payments stallage charges under Section 407, these stallage payments being made on April 1, July 1, October 1, and January 1, in every year. What has happened in this case is somewhat remarkable and appears also to be of some importance, since we are told that this ease is in the nature of a test case, as there are other cases against stall-holders of the market pending at the present time, On April 1, 1946, pursuant to past custom, the applicant paid one rupee to the Municipality for his annual license and he at the same time paid the stallage charge for the period April 1, 1946, to June 30, 1946. The attitude which the Municipality now takes up is that at that time the raising of the stallage charges was under consideration, and that it only received these two payments as being 'on deposit.'
5. In view of the subsequent conduct of the Municipality, it seems impossible for that attitude to be sustained, for not only were the stallage charges accepted, which they could not have been unless the applicant was a licensee, but on September 30, 1946, the Superintendent of the Markets on behalf of the Municipality served the following notice upon the applicant:-
Stalls Nos. 469 to 478, Arthur Crawford Market.
As you have been already informed, the Municipal Commissioner has increased the stallage charge in respect of the above stall/shop to Rs. 150, 175 and 175 per quarter, 150 for 7 stalls respectively.
The sum of Rs. 1550 will accordingly be payable on the 15th October 1946 in respect of stallage charge for the quarter from 1st October 1946 to the 31st December 1946. Failure to comply with this provision of your license will result in the license being revoked under Clause 7 thereof.
6. How the Municipality can be heard to say in view of that notice that the applicant is not a licensee, when they are threatening to revoke his license unless he makes this enhanced payment by October 15, 1946, it seems to us impossible to say. The acceptance of the Re. 1 for an annual license and the stallage charges for the period April 1 to June 30, coupled with this notice of September 30, 1946, clearly shows that on August 28, 1946, the applicant was a licensee in the Crawford Market.
7. It is to be noted that Section 401 does not provide for a license in respect of each or every stall. It is a personal license as is shown by the words, 'no person shall without, a license' sell in the Municipal Market; so that the payment of one rupee must be attributed to a payment in respect of the personal license of the applicant. We have been told in this Court that after the decision of the Honorary Magistrate on December 18, 1946, the applicant was ejected from the market, presumably tinder Sub-section (2) of Section 401 of the Municipal Act. In our opinion the conduct of the Municipality in this matter has been of a very highhanded character, and it is to be hoped that now that this Court has considered the law in relation to the facts of this case, the Municipality will do the right thing and reinstate this stall-holder whom they have ejected.
8. The result is that the conviction and sentence passed by the Honorary Magistrate must be set aside. The applicant is acquitted and the line if paid is to be refunded. The rule is made absolute.