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State Vs. Jaikar Krishna Shetty - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai High Court
Decided On
Case NumberCriminal Appeal No. 1138 of 1969
Judge
Reported inAIR1973Bom62; (1972)74BOMLR180; ILR1972Bom773; 1972MhLJ412
ActsBombay Municipal Corporation Act, 1888 - Sections 394(1) and 471
AppellantState
RespondentJaikar Krishna Shetty
Appellant AdvocateS.R.Chitnis, Asstt. Govt. Pleader
Respondent AdvocateV.R. Shetty and ;A.R. Shetty, Advs.
Excerpt:
.....only the carrying on of any trade without a licence but also carrying on the same in breach of any terms or conditions thereof.;suspension or revocation of a licence, as provided for in sub-section (3) of section 479 of the bombay municipal corporation act, for committing breach of any of the terms or conditions of licence by the person to whom the licence has been granted is an additional step which may or may not be taken by the municipal authorities; provision for such a breach in section 479(3) does not mean that it is not covered by section 471 read with section 394(1)(e)(i) of the act.;as section 394 is quite clear in its intent it is unnecessary to take the assistance of the subject-matter given in the second column of the table appended to section 471 or the description of the..........house when the present respondent was present and produced the licence and he found 'certain licence conditions infringed.' there is no cross-examination. the complaint was filed by r. g. pagdhare, municipal legal assistant. but curiously enough this complaint is not proved in the lower court and, therefore, it does not form part of the record. the question therefore, is whether the evidence of derantio william dias, p. w. 1 is sufficient to prove that the respondent committed a breach of any of the terms or conditions of the licence. the learned assistant government pleader mr.chitnis has relied on the sentence in the evidence of the witness the substance of which i have already indicated. that sentence reads thus : 'i found certain licence conditions infringed.' now, in the.....
Judgment:

1. The respondent in this case was the Manager of an eating house and according to the prosecution, he had committed breach of certain conditions of the licence. The breach was noticed by the Inspector on 5th November 1968. The Inspector, therefore, filed his complaint in the lower Court on 14th November 1968. The Inspector, therefore, filed his complaint in the lower Court on 14th November 1968, alleging that the respondent had committed a breach of the conditions Nos. 8, 21, 26 (1) (2) (3) (4), 28 (general) and Nos. 3, 7, 8, 14, 18 and 27 (special ) of eating house licence No. 9706 of 1968-69. He, therefore, contended that the respondent had committed an offence publishable under Section 471 read with Section 394 (1) (e) (I) of the Bombay Municipal Corporation Act. It appears from the record that there were other two accused persons against whom also this complaint was filed. But the learned Assistant Government Pleader Mr.Chitnis appearing on behalf of the appellant-State has informed me that they were not proceeded against and only the present respondent was tried in the lower court.

2. The respondent denied to have committed any offence. The learned Magistrate, however, was of the view that the charge under Section 394 (1) (e) (I) of the Bombay Municipal Corporation Act could not be sustained as the respondent had a licence in respect of the shop. he also observed that the infringement of any condition could not mean that there was no licence. He therefore, acquitted the respondent. Against this order of acquittal, the State has come in appeal.

3. The first point that is urged before me is whether the present case of carrying on trade in breach of any terms or conditions of a licence is covered by Section 394 (1) (e) (I) read with Section 471 of the Bombay Municipal Corporation Act, and secondly whether on merits there is evidence to show that the respondent has committed the offence alleged against him. I first propose to discuss the second point.

4. The prosecution examined one Derantio William Dias P. W. 1, in support of its case. Now, what he has said in his evidence is that on 5th November 1968 he visited the eating house when the present respondent was present and produced the licence and he found 'certain Licence conditions infringed.' There is no cross-examination. The complaint was filed by R. G. Pagdhare, Municipal Legal Assistant. But curiously enough this complaint is not proved in the lower Court and, therefore, it does not form part of the record. The question therefore, is whether the evidence of Derantio William Dias, P. W. 1 is sufficient to prove that the respondent committed a breach of any of the terms or conditions of the licence. The learned Assistant Government Pleader Mr.Chitnis has relied on the sentence in the evidence of the witness the substance of which I have already indicated. That sentence reads thus : 'I found certain licence conditions infringed.' Now, in the absence of the complaint being proved and brought on record, in which only there is a reference to the terms and conditions of which the breach is alleged to have been committed by the respondent, it is difficult to hold relying on the aforesaid sentence that the prosecution has proved breach of any terms or conditions. The learned Assistant Government Pleader, however, argued that inasmuch as the witness was not cross-examined on that statement, it should be held that there is a breach of certain conditions committed by the respondent. I cannot agree. Whether there is a breach of any term or condition is to be decided by the Court on the basis of the material placed before it. When the witness says that he found that certain licence conditions were infringed, that is his opinion, but the Court cannot accept his opinion and hold that because in his opinion the respondent has committed a breach of the conditions, therefore the breach is proved. If the witness had laid some basis in his examination-in-chief stating what were the terms and conditions of which the breach is alleged and found that the respondent committed the alleged breach surely the defence could have cross-examined the witness on the point. But when the witness does not make out any case in his examination-in-chief regarding the breach, how can we say that there was any material in his examination-in-chief making it necessary for the defence to cross-examine the witness. This Court, therefore, is unable to hold on merits on the respondent did commit a breach of any term or condition of the licence. That being the position, the respondent is entitled to an acquittal and the order passed by the learned Magistrate must be upheld on merits.

5. In the view I have taken on merits, it is clearly not necessary to express any opinion on the point whether or not present case is covered by Section 394 (1) (e) (I) of the Bombay Municipal Corporation Act, 1888. however, the Advocates on both the sides having argued the point, I would briefly refer to it. Section 394 (1) so, far as it is relevant here, reads thus : -

'394 (1), Except under and in accordance with the terms and conditions of the licence granted by the Commissioner no person shall,

(a) ...........

(b) ...........

(c) ............

(d) ...........

(e) ............ on or, allow or suffer to be carried on, in or upon any premises.

(I) any of the trades specified in Part IV of Schedule M. or any process or operation connected with any such trade;

(ii) ................

(f).................. '

It is therefore, quite clear that what is prohibited under this provision is carrying on, or allowing or suffering to be carried on, in or upon any premises any of the trades specified in Part IV of Schedule m, or any process or operation connected with any such trade without a licence or in breach of any of the terms and conditions of such licence. If, therefore, a person carries on trade in contravention of this provision, by committing a breach of any term or condition of the licence issued to him, then he must be said to have contravened this provision. Similarly, if any person carries on trade on contravention of this provision without a licence, he is also covered by this provision. Section 471 makes the contravention of the aforesaid provision punishable. This section runs thus : -

'471. Whoever,

(a) contravenes any provision of any of the sections, sub-sections or clauses mentioned in the first column of the following table, or of any regulation made thereunder, or,

(b) fails to comply with any requisition lawfully made upon him under any of the said sections, sub-sections or clauses shall be punished, for each such offence, with fine which may extend to the amount mentioned in that behalf in the third column of the said table.

Explanation : - The entries in the second column of the said table headed 'Subject' are not intended as definition of the offences described in the sections, sub-sections and clauses mentioned in the first column, or even as abstracts of those sections, sub-sections and clauses but are inserted merely as references to the subjects of the sections, sub-sections and clauses the numbers of which are given in the first column. Section. sub-section Subject Fine which mayor clause be imposed.1 2 3Section 394. Sub-section (1) Certain articles not to be kept. and One thousandClauses (a) (ii). and (b) to (f) certain trades, process and operations rupees subject not to be carried on, without a however. to alicence. minimum finewhich shall notbe less than twohundred rupees.

If therefore, any person contravenes the provisions of Section 394 (1) (e) (I) he would be liable to a penalty prescribed in Section 471. The learned Magistrate, however seems to have taken the view that in the present case, the respondent being the holder of a licence and Section 471 having clearly referred to Section 394 (1) (e) (I) with reference to the subject enumerated in the second column, such a case does not come under Section 471. Now, it is no doubt true that the second column which refers to the subject-matter of the provisions enumerated in the first column refers to only 'certain articles not to be kept and certain trades, processes and operations not to be carried on without a licence' (Underling mine) and this gives an impression that what is made punishable under Section 471 read with Section 394 (1) (e) (I) is the act of carrying on certain trade without a licence and not carrying on the same grade by committing breach of any term or condition of such licence. But the attention of the learned Magistrate, it seems, was not drawn to the Explanation to Section 471, which says that the entries in the second column of the table appended to Section 471 headed 'subject' are not intended as definitions of the offence described in the sections, sub-sections and clauses mentioned in the first column, or even as abstracts of those sections, sub-sections and clauses, but are inserted merely as references to the subjects of the sections, sub-sections and clauses, the numbers of which are given in the first column. This explanation puts it beyond any doubt that though the words used in the second column against the entry of Section 394 (1) (e) (I) in the first column refer to 'without a licence' they are inserted there merely as a reference to the subject of the section, sub-sections and clauses in the first column. In fact as I have already pointed out, when Section 394 (1) (e) (I) clearly prohibits not only carrying on a trade without a licence but also carrying on the same in breach of any terms or condition thereof, it can hardly be said that what is made punishable by Section 471 is only carrying on trade without a licence and not carrying on trade in breach of any terms or conditions of such licence.

6. The learned Advocate Mr.Shetty appearing on behalf of the respondent has, however, drawn my attention to Part IV of Schedule M of the Act, where also the hearing of the items enumerated in part IV includes the words 'without a licence' and does not refer to breach of any terms or conditions of such licence. Now, before I refer to Part IV of Schedule M, it is necessary to again refer to the provisions of Section 394 (1) (e) (I). Clauses (I). Section 394 (1) (e) refers to 'any of the trades specified in Party IV Schedule M.' It is, therefore, obvious that instead of enumerating the trades in clause (I) the clause, refers to Part IV of Schedule M where these trades are specified. In order therefore, to find out whether carrying on of a particular trade without a licence or breach of any terms or conditions of the licence is prohibited, we are to refer to the trades specified in Part IV of Schedule M and to nothing else. Thus if we refer to the trades specified in this Part of Schedule M, we will find that keeping of an eating house or a catering establishment ins the 8th item in the list. Obviously, therefore, if any person carries on trade of keeping of an eating house or a catering establishment without a licence or in breach of any terms or conditions of such licence, then he would be contravening the provisions of Section 394 (1) (e) (I). The learned Advocate Mr.Shetty however, drew my attention to the words at the top of Part IV of Schedule M. They read thus 'Trades or processes or operations connected with trades which shall not be carried on or allowed to be carried on in or upon any premises without a licence.' (underlining mine.) He, therefore, argued relying on these words that what is prohibited by Section 394 (1) (e) (I) is carrying on any trade without a licence and not carrying on such trade in breach of any terms or conditions of the licence, because the words used in Part IV at the top are 'without a licence' and we do not find any words such as 'in breach of any terms or conditions of such licence' or any other words to this effect. I am unable to accept this argument. It seems to me that in the whole of the Schedule M, in every Part, we find a reference in brief to the subject-matter of that part described at the top. It has nothing to do with the offences described in various sections, sub-sections and clauses. This description of subject-matter cannot be looked upon even as abstracts of the sections, sub-sections and clauses which create offences. They give merely description of the topics relevant to the matter enumerated in the respective Parts. In this connection I may even refer to a marginal note of Section 394, though as I have already said, what is prohibited by Section 394 is not only carrying on a trade without a licence but carrying on the same in breach of any terms or conditions of such licence, the marginal note says that the subject of the section deals with 'certain articles not to be kept and certain trades, processes and operations not to be carried on, without a licence.' What I mean to emphasize is that when the section is quite clear, it is unnecessary to take the assistance of the subject-matter given in the second column of the table appended to Section 471 or the description of the topics in various Parts of Schedule M or even the marginal note of Section 394.

7. It is true that Section 479, sub-section (3) provides for suspension or revocation of a licence (subject to the provisions of clauses (d) and (dd) of Sections 403) if any of its restrictions or conditions in infringed or evaded by the person to whom the licence has been granted. But this is a part of the procedure in respect of licences laid down in Chapter XIX of the Act. It is not a penalty. The learned Counsel Mr.Shetty has not been able to draw my attention to any provisions in the Act other than S. 471 which prescribe any penalty for an infringement of any term or condition of such a licence. Moreover, Section 479, sub-section (3) also says that any such licence can be suspended or revoked if the person to whom it is granted is convicted of an infringement of any of the provisions of the Act. If, therefore any person commits a breach of any of the terms or conditions of a licence granted to him under Section 394 (1) (e) (I) of the Act, then he would be committing infringement of Section 394 of the Act which prohibits carrying on trade or allowing it or suffering it to be carried on otherwise than in accordance with the terms or conditions of such licence granted to him, in which case he would be liable to be convicted under Section 471 of the Act and the licence granted to such a person would be liable to be suspended or revoked under Section 479, sub-section 93) of the Act. It seems to me, therefore, that suspension or revocation of a licence for committing breach of any of the terms or conditions of such a licence is an additional step which may or may not be taken by the Municipal authorities when they find that the person holding such a licence has committed a breach of any of the terms or conditions of such a licence. It cannot, therefore, be successfully argued that because Section 479, sub-section (3) provides for such a step against breach of any of the terms or conditions of such a licence, such a breach is not covered by Section 471 read with Section 394 (1) (e) (I) of the Act.

8. I am therefore, of the opinion that the cases of carrying on any trade or business in breach of terms or conditions or licence granted by a Commissioner under Section 394 read with Section 471 of the Bombay Municipal Corporation Act. Unfortunately, the learned Magistrate has not assigned any reason why he has taken the particular view he did.

9. The result, however, is that the respondent is entitled to an acquittal on merits. The appeal, therefore, fails and is dismissed and the order of acquittal passed by the lower court is confirmed.

10. Appeal dismissed.


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