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Manibhai Tulsibhai Patel Vs. the Municipal Corporation of Greater Bombay - Court Judgment

LegalCrystal Citation
SubjectCommercial
CourtMumbai High Court
Decided On
Case NumberCriminal Revision Application No. 1011 of 1963
Judge
Reported in(1964)66BOMLR677; 1965MhLJ458
AppellantManibhai Tulsibhai Patel
RespondentThe Municipal Corporation of Greater Bombay
DispositionApplication dismissed
Excerpt:
.....obligation to obtain a licence may become relevant but the offence is of keeping or tethering cattle on certain premises without there being a valid licence in operation in relation to the premises and section 394(1)(c) makes it very clear that no person shall keep or suffer or allow to be kept in or upon any premises cattle for the sale of any produce thereof without a valid licence and, in my view, the phrase 'no person shall keep' is wide enough to include not only the landlord or the owner of premises where he keeps his own cattle but a tenant or a licensee who is allowed to keep his own cattle by the landlord at his premises......makes it very clear that no person shall keep or suffer or allow to be kept in or upon any premises cattle for the sale of any produce thereof without a valid licence and, in my view, the phrase 'no person shall keep' is wide enough to include not only the landlord or the owner of premises where he keeps his own cattle but a tenant or a licensee who is allowed to keep his own cattle by the landlord at his premises. all that the section requires is that before any person keeps cattle in or upon any premises he has to see to it that a valid municipal licence in that behalf subsists and is in operation qua the premises where he intends to keep his cattle. it is, therefore, not possible to give a restricted or qualified meaning to the expression 'person' used in the section as.....
Judgment:

Tulzapurkar, J.

1. These three revisional applications have been preferred by each one of the petitioners against each one's conviction and sentence of fine imposed by the Presidency Magistrate, 10th Court, Andheri, Bombay, for the offence under Section 394(1)(c) read with Section 471 of the Bombay Municipal Corporation Act. Since the facts on the basis of which each one of the petitioners was prosecuted in the Court of the learned Presidency Magistrate are identical and each one of them was convicted for the similar offence, I propose to dispose of all the three revisional applications by a common judgment.

2. Opponent No. 3 is the owner of a number of stables situated at Patel Wadi, Andheri, while the three petitioners, who own buffaloes are his tenants in respect of certain hooks or khilas to which they tethered their milch cattle. The petitioner in Criminal Revisional Application No. 1011/63 owns 30 buffaloes and at the material time he used to tether his buffaloes to 30 khilas in stable No. 21 and was paying Rs. 5 per 'khila' to the landlord-opponent No. 3. The petitioner in Revisional Application No, 1015/63 is the owner of 60 buffaloes and used to tether them to 60 khilas in stable No. 15 and was paying rent at the rate of Rs. 5 per hook to opponent No. 3. The petitioner in Criminal Revisional Application No. 1017/63 is the owner of 15 buffaloes which he used to tether to 15 'khilas' situated in stable No. 18 and for that he was paying rent at the same rate of Rs, 5 per khila to opponent No. 3. Admittedly, neither the landlord-opponent No. 3 nor any of these petitioners had obtained any municipal licence required under the provisions of the Bombay Municipal Corporation Act and the Bye-laws for stabling their cattle in these stables in Patel Wadi and, therefore, at the instance of the Bombay Municipal Corporation the three petitioners who were actually making use of the three stables mentioned above for tethering their milch cattle, were prosecuted in the Presidency Magistrate's 10th Court at Andheri for keeping on the premises milch cattle for sale of the produce thereof without a licence from the Municipal Commissioner under Section 394(1)(c) read with Section 471 of the Bombay Municipal Corporation Act. Each one of the three petitioners when they appeared before the learned Presidency Magistrate in pursuance of the summons served upon them, pleaded guilty and the petitioner in Revisional Application No. 1011/63 was fined Rs. 20, petitioner in Revisional Application No. 1015/63 was fined Rs. 30 and the petitioner in Revisional Application No. 1017/63 was fined Rs. 10. It is against those convictions and the sentences of fine that were imposed upon the petitioners that the present revisional applications have been preferred by them to this Court.

3. At the outset Mr. Dalvi, Assistant Government Pleader, contended that these revisional applications on merits are not maintainable inasmuch as each one of the petitioners had pleaded guilty to the charges that were levelled against them and that plea was accepted and thereafter they were convicted and sentenced. Mr. Parikh, appearing on behalf of these three petitioners, contended that the three petitioners did not really understand what was the exact nature of the charge that was framed against them and possibly they merely admitted the fact that each one of them was tethering cattle in the stables in question and on their admission of the fact mentioned in the charge their plea appears to have been recorded and a fine imposed upon them. Mr. Parikh further contended that even if all the facts mentioned in the charge were admitted by the three petitioners in the lower Court, in law their admissions would not amount to any offence under Section 394(1)(c) read with Section 471 of the Bombay Municipal Corporation Act inasmuch as according to him under the relevant provisions of the Act as well as the Bye-laws, it was for the landlord of these stables to obtain the required licences and, therefore, the petitioners could not in law be said to have committed the offence with which they were charged and they deserved to be acquitted.

4. As regards the first contention urged by Mr. Parikh, it is difficult to hold that the three petitioners must have merely admitted the fact that each one of them tethered a particular number of milch cattle in the stables concerned without understanding the nature of the charge framed against them. One might have been inclined to accept this sort of plea if there was no further conduct on the part of each one of the petitioners. It is an admitted position that no sooner the sentences were pronounced each one of the petitioners paid the amount of fine that was imposed upon him by the learned Magistrate. Now, if, as has been urged by Mr. Parikh, these petitioners did not really understand the nature of the charge that was framed against them and they really did not want to plead guilty as has been recorded by the learned Magistrate in the proceedings, one fails to understand how after the sentences were pronounced, they immediately carried out those sentences by payment of the fine. The immediate subsequent conduct on the part of each one of the petitioners in paying the fines which were imposed upon them runs counter to the plea of Mr. Parikh that they did not understand what they were doing by admitting the facts alleged in the charges framed against them and they did not understand that they were pleading guilty to those charges. If that was really so, no sooner the sentences were imposed upon them, each one of them would have protested at that very moment, the things would have been set right and they would have been tried. The fact, therefore, that each one of them paid the fine which was imposed upon him goes to show that they made their plea after fully understanding the charges that were framed and Mr. Dalvi is right in his contention that on merits the revisional applications would not be maintainable.

5. However, since Mr. Parikh wanted to raise a question of law regarding the true construction of Section 394 of the Bombay Municipal Corporation Act and the effect of the Bye-laws framed by the Municipal Corporation under the Act, and since I was informed at the bar that the point has arisen in a number of prosecutions which are pending in lower Courts, I allowed him to argue the point which he wanted to develop. Mr. Parikh urged that under the provisions of Section 394 of the Act read with the relevant Bye-laws framed by the municipality in the matter of issuing licences for stabling milch cattle, no obligation is cast upon the tenant or occupier, who actually tethers cattle in any particular stable, to obtain a licence in that behalf. According to him that obligation is cast upon the owner of the cattle-shed or the stable and if the owner of the stables in question viz. opponent No. 3 had not obtained the requisite licence, the petitioners who were tenants of the several hooks in these stables and were tethering their cattle in those stables would not be guilty under Section 394(1)(c) read with Section 471 of the Act. He referred me to two decisions of this Court viz. Emperor v. Mirza (1902) 4 Bom. L.R. 943, and Emperor v. Dadabhai : (1912)14BOMLR882 . In both the cases, however, the question was not whether the tenant or occupier who actually tethered his cattle was liable but whether the landlord in whose stables milch cattle had been allowed to be tethered was guilty of the offence under Section 394(1)(c) of the old City of Bombay Municipal Act, 1888, which is in pari materia with the present Section 394(1)(c) of the Bombay Municipal Corporation Act, and in the former case the landlord was acquitted of the offence while in the latter the landlord's conviction for the offence under Section 394(1)(c) was confirmed. It must be mentioned that each case was decided having regard to special facts and circumstances obtaining in each. Incidentally I may state that in Emperor v. Mirza though the landlord was acquitted and the actual occupiers were not before the Court, the observations of their Lordships indicate that such occupiers or tenants would come within the mischief of the provisions of Section 394(1)(c) of the Act. These two cases, however, dealt with the question as to whether the landlord could be held responsible for allowing his tenants to make use of the premises owned by him for the purpose of stabling cattle without a licence in that behalf. In the revisional applications before me, the question is not as to whether the landlord who is opponent No. 3 is liable for allowing the petitioners to stable their cattle in the cattle sheds in Patel Wadi, but whether the petitioners who are the tenants of opponent No. 3 and who actually used to tether their cattle in the three stables belonging to opponent No. 3 could be said to have committed the offence under Section 394(1)(c) read with Section 471 of the Bombay Municipal Corporation Act? That would depend upon the proper construction of Section 394(1)(c).

6. Section 394(1)(c) runs as follows:

Except under and in accordance with the terms and conditions of the licence granted by the Commissioner, no person shall-...

(c) keep or suffer or allow to be kept, in or upon any premises, horses, cattle or other four-footed animals for sale, for letting out on hire or for any purpose for which any charge is made or any remuneration is received, or for the sale of any produce thereof;

The contravention of this provision is made punishable under Section 471 of the Bombay Municipal Corporation Act. Mr. Parikh then invited my attention to the relevant Bye-laws which have been framed by the Municipal Corporation under the heading 'Stable Bye-laws' and after taking me through these Stable Bye-laws dealing with maintenance of stables and granting of licences for such stables etc., Mr. Parikh urged that it was the owner of the premises where the cattle sheds and stables have been maintained who alone is entitled to obtain a licence and ordinarily no tenant or occupier of the stable who tethers his cattle in such stable for hire is entitled to obtain a licence and according to Mr. Parikh, if that was the correct position emerging from the reading of Stable Bye-laws then under Section 394(1)(c) the petitioners who were merely tenants of the three stables, could not be said to have committed the offence contemplated under Section 394(1)(c) read with Section 471 of the Bombay Municipal Corporation Act and it would be opponent No. 3 who had allowed the petitioners to keep their cattle in his stables who ought to have been proceeded against by the Municipal Corporation. Mr. Parikh urged that it was the landlord of the premises where milch cattle were allowed to be kept for the sale of their produce who could be said to have contravened the provisions of that section. According to Mr. Parikh the clause 'no person shall keep, or suffer or allow to be kept, in or upon any premises' should be interpreted to mean a landlord who keeps his own cattle on the premises or a landlord who allows his tenants or licensees to keep their cattle on the premises, and if he does so without the requisite licence, he would be guilty under Section 394(1)(c) read with Section 471 of the Act. In other words, in view of 'Stable Bye-laws' Mr. Parikh wants to give restricted meaning to the expression 'person' used in that section and confine that expression to a landlord or owner of premises where stables are maintained.

7. In the first place it is not very clear whether under the 'Stable Bye-laws' the owner or landlord of premises where stables are maintained is alone entitled to apply and obtain the licence, but I do not wish to express my opinion on that point. In my view, it is immaterial as to whether it is the owner of the premises or of the stables who is entitled to obtain a licence or whether the tenant or occupier who actually uses the stable for tethering his cattle can apply and obtain a licence in that behalf. One thing is absolutely clear that under the provisions of the Act a licence is required in relation to the premises where milch cattle are to be kept and Section 394 makes no reference to any person who is the holder of the licence. The offence contemplated by Section 394(1)(c) read with Section 471 of the Act is not one of failure to obtain a licence for the purpose of tethering cattle on any premises but the offence contemplated is one of actually tethering cattle on certain premises or putting certain premises to the use of keeping cattle without a licence and that offence is irrespective of as to who is the holder of the licence in that behalf. If, for instance, the owner of certain premises has obtained the requisite licence in respect of his premises and instead of the owner himself tethering his own cattle in those premises, he allows tenants to tether their cattle in his premises, then obviously in such circumstances the tenants cannot be prosecuted, for a valid licence in respect of the premises where the cattle are tethered would be in operation and the offence contemplated under Section 394(1)(c) read with Section 471 shall never have been committed. In my view, while constructing Section 394(1)(c) the question as to upon whom is the obligation of obtaining a municipal licence is irrelevant and immaterial, for so long as there is a valid municipal licence in operation in relation to the premises where cattle are tethered, no offence under Section 394(1)(c) can be committed by any person who keeps his cattle in those premises. That being the true position, it is difficult to accept Mr. Parikh's contention that because there is an obligation upon the landlord to obtain the requisite municipal licence and because the landlord has failed to obtain such a licence, the tenants who actually tethered their cattle in those premises cannot be said to have committed the offence contemplated by Section 394(1)(c) read with Section 471 of the Act. As I have mentioned earlier, the offence under Section 394(1)(c) is not one of failure to obtain a municipal licence for tethering cattle in which case probably the question as to upon whom is the obligation to obtain a licence may become relevant but the offence is of keeping or tethering cattle on certain premises without there being a valid licence in operation in relation to the premises and Section 394(1)(c) makes it very clear that no person shall keep or suffer or allow to be kept in or upon any premises cattle for the sale of any produce thereof without a valid licence and, in my view, the phrase 'no person shall keep' is wide enough to include not only the landlord or the owner of premises where he keeps his own cattle but a tenant or a licensee who is allowed to keep his own cattle by the landlord at his premises. All that the section requires is that before any person keeps cattle in or upon any premises he has to see to it that a valid municipal licence in that behalf subsists and is in operation qua the premises where he intends to keep his cattle. It is, therefore, not possible to give a restricted or qualified meaning to the expression 'person' used in the section as contended by Mr. Parikh. In this view of the matter, it is clear that the petitioners would come within the purview of Section 394(1)(c) read with Section 471 of the Bombay Municipal Corporation Act inasmuch as they have admittedly tethered their cattle in the stables belonging to opponent No. 3 without there being a valid municipal licence in operation in relation to those premises. I am, therefore, of the view that the petitioners were rightly convicted by the learned Magistrate and their convictions and sentences are confirmed. The revisional applications are, therefore, dismissed.


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