(1) The petitioner who was the accused in the trial Court, has been convicted by the Second City Magistrate, Bangalore of an offence under Section 376(1) red with Section 297(1) of the City of Bangalore Municipal Corporation Act and sentenced to a fine of Rs. 100 in default, to suffer simple imprisonment for one month.
(2) The charge against the petitioner was that he was found running a soap factors on 15-9-1964 at No. 20 III Block. Jayanagar, Bangalore, without obtaining a licence from the Commissioner of the Corporation of the city of Bangalore for the year 1964-65 and there by committed an offence under Section 297 read with Section 376(1) of the City of Bangalore Municipal Corporation Act, 1949.
(3) Sri Dayanand, learned counsel for the petitioner has urged before me three points: (1) Section 297 of the City of Bangalore Municipal Corporation Act, hereinafter referred to as the Act, is ultra vires as it infringes Article 19(1)(g) of the Constitution (2). As the complaint has been filed after the commission of the offence. It is barred by limitation as per Section 147 of the Art (3). The licence required under Section 297 of the Act is not for running a soap factory, but for the manufacture of soap by any process.
(4) The first contention of Sri. Dayanand is that Section 297 of the Act is ultra vires as it infringes Article 19(1) of the Constitution. His arguments is that Section 297 gives arbitrary power to the Commissioner either to grant or refuse to grant licence to any person. The Act does not provide as to how the Commissioner should exercise his discretion. He is not bound to give any reasons for refusal of the licence. No opportunity is given to the applicant to be heard before the licence is refused. There is a total prohibition of carrying on business within the city without licence. Hence his contention is that this would be unreasonable restriction on the exercise of the right to carry on any occupation, trade or business and is therefore void as it offends Article 19 of the Constitution. In support of his said contention he has cited before me the decisions of Rashid Ahmed v. Municipal Board, Kairana : 1SCR566 , Dwarka Prasad Laxminarain v. State of Uttar Pradesh, : 1SCR803 . Tahir Hussain v. District Board, Muzaffarnagar. : AIR1954SC630 , Ganpati Singhji v. State of Ajmer (S) AIR 1955 SC188 and Abdul Ameed Mohamad Hayath v. Town Municipal Council Chitradurga, AIR 1965 Mys 281.
(5)The learned High Court Government Pleader and Shri Gopalakrishna, appearing for the respondents 1 and 2 have contended that Section 297 of the Act does not offend Article 19 of the Constitution. They does not offend Article 19 of the Constitution. They deny that the Act gives unrestricted power to the Commissioner either to grant or to refuse licence. Their contention is that Act provides sufficient safeguards and checks on the power of the Commissioner of the Corporation in granting or refusing licence. There is a right of appeal to the Standing Commissioner from the orders of the Commissioner and a further appeal to the Corporation. The policy to be followed is laid down by the Act. There is no total prohibition of carrying on business within the Corporation limits. The taking of licence is only a reasonable restriction imposed by the Act in the interests of general public. The learned High Court Government Pleader has relied on Harishankar Bagla v. State of Madhya Pradesh : 1954CriLJ1322 , Tika Ramji v. State of Uttar Pradesh, : 1SCR393 , Kishan Chand Arora v. Commissioner of Police, Calcutta : 3SCR135 and Govindji Vithaldas and Co. v. Municipal Corporation of the City of Ahmedabad, : AIR1959Bom26 in support of the said contention.
(6) It is therefore necessary to examine the correctness of the said rival contentions. The earliest case cited on the subject is : 1SCR566 . In that case the petitioner was carrying on business in vegetables within the Municipal limits. The Municipality framed a bye-law that no person within its limits shall establish a market in vegetables except with the permission of the Board. When the petitioner applied for licence, the same was refused. The Supreme Court struck down this bye-law on the ground that it violated Article 19(6) of the Constitution. It was held that as there was no provision for issuing licence, it amounted to total prohibition from carrying on business within the municipal limits and hence it was void. In : 1SCR803 their Lordships held that a law or an order which confers arbitrary or uncontrolled power upon the executive in the matter of regulating trade or business in normally available commodities cannot but he held to be unreasonable. As there were no checks or rules or regulations to guide the officers and particularly, as there was no right of appeal to the aggrieved their Lordships struck down the bye-law framed under the U.P. District Board Act on the ground that it was opposed to Section 174 of the Act and did not regulate the marked but there was total prohibition of carrying on business. In (S) AIR 1955 SC 188, their Lordships struck down some rules framed under the Ajmer Laws Regulation as they conferred absolute and arbitrary power on the District Magistrate. Their Lordships also held that the bye-law was bad as it empowered the District Magistrate to revoke a permit granted without assigning any reason or giving any previous notice. In AIR 1965 Mys 281, this Court held that the cancellation of the licence without any allegation or proof of breach of its conditions is bad. No opportunity to show cause against the cancellation of the licence was given to the petitioner and the absolute power granted to the authority to cancel the licence in such circumstances was held to be bad.
(7) The learned High Court Government Pleader has relied on : 1954CriLJ1322 . In that case their Lordships held that the preamble and the sections in the Essential Supplies (Temporary Powers) Act sufficiently formulate the legislative policy and the ambit and character of the Act to grant or refuse to grant a permit is governed by this policy and the discretion given to the Textile Commissioner is to be exercised in such a way as to effectuate this policy. Such discretion cannot therefore be called unregulated or arbitrary and is not invalid. Further, if there is any abuse of power, there is ample power in the Courts to undo the mischief.
(8) In (S) : 1SCR393 , their Lordships have observed as follows:
'The power which is given to the Cane Commissioner under S. 15 of the Act for declaring reserved or assigned areas is well defined and guided by the considerations set out in R. 22 of Chap. 6 of the U.P. Sugarcane (Regulation of Supply and Purchase) Rules 1954 and is further conditioned that he has to consult the factory and the Canegrower's Co-operative Society and his orders made thereunder are subject to an appeal to the State Government at the instance of the party aggrieved. This cannot by any means be treated as uncontrolled or an unfettered power without recourse to any higher authority in the event of his going wrong.
The power is not absolute nor is it unguided and, therefore, does not fall within the mischief of Art. 19(1)(f) and (g) and the notification dated 9-11-1955 cannot be impugned on that ground xx xx xx.'
(9) In : 3SCR135 , their Lordships were considering the powers of the Commissioner of Police under the Calcutta Police Act for granting licence for eating houses. Their Lordships held that on a fair reading of the sections, there is guidance to the Commissioner should use his discretion in deciding whether the person applying for licence is the keeper of an eating house and whether the keeper is a person of good behaviors no and whether the keeper is in a position to prevent drunkenness and disorder among those who come to the eating house, their Lordships stated, that guidance is given by the Act and it cannot be said that Section 39 confers any arbitrary and uncanalised power without any criteria for guiding the discretion of the licencing authority and the section cannot be held to be an unreasonable restriction on the right to carry on trade. It may be noted that in that particular case, the Act did not provide for any hearing give to the applicant nor was the Commissioner bound to give reasons to refusal or to the licence nor to communicate the said refusal to the applicant. The applicant was also not given any right of appeal against the order of the Commissioner. In spite of all this, their Lordships held this would not amount to unreasonable restriction of the fundamental right of a person to carry on trade. Their Lordships also held that it cannot be said that the applicant had not got any remedy, as the applicant can always apply to the High Court under Article 226 of the Constitution and compel the Commissioner to disclose the reasons for the refusal and, if those reasons are extraneous or are not germane to the matters, the High Court can compel the Commissioner to act within the scope of the section.
(10) Keeping in view the observations of their Lordships of the Supreme Court in the said decisions referred to above, it becomes necessary to examine the provisions of the Act to see whether the Commissioner has been given arbitrary and uncontrolled power to grant or refuse licence to any person under the Act.
(11) Taking first, Section 297, the relevant provisions are sub-clauses (1) and (5). The read as follows:
'(1) No place within the limits of the city shall be used for any of the purposes mentioned in Schedule V without a licence obtained for the Commissioner, and except in accordance with the conditions specified therein.'
xx xx xx xx'(5) The Commissioner may grant such licence subject to such restrictions and regulations as may be specified by him thereon or he may refuse to grant such licence.'
Chapter XVI of the Act refers to the procedure to be followed in granting licences. Section 385(2)(c) of the Act says that every order of the Commissioner or other municipal authority granting or refusing a licence or permission shall be published on the notice board of the Corporation. Sub-section (3) of that section further says that every order of the Commissioner or other municipal authority refusing suspending, cancelling or modifying a licence or permission shall be written and shall state the ground on which it proceeds. Sub-section (5) says that if shall be the duty of the Commissioner to inspect places in respect of which a licence or permission in required and gives him power to enter the premises. Section 386 gives the applicant for a licence the right of appeal to the Standing Committee of the Corporation consisting of 7 elected members of the Corporation. If the Standing Committee in appeal reverses or substantially modifies the order of the Commissioner he may within one month refer the matter to the Corporation. The decision of the Standing Committee or, where the matter has been referred to the Corporation, the decision of the Corporation shall be final. Section 389 clothes the Commissioner with powers to summon any person to give evidence or produce documents before him in respect of any question relating to grant of any licence. Under S. 43 of the Act, the Government has got power to call for any record from the Corporation or the Commissioner. Under Section 45, on receipt of any information or report, if the Government is of the opinion that any duty imposed on any municipal authority by or under the Act has not been performed or has been performed in an imperfect, inefficient or unsuitable manner, the Government, may, by an order, direct the corporation or the Commissioner to perform their duties property.
(12) In view of these various provisions of the Act, it cannot be said that the power conferred on the Commissioner of granting licence is arbitrary or uncontrolled power unregulated by the Act. Every order of the Commissioner granting or refusing a licence should be in writing and should be published on the notice board. The order refusing licence should state the grounds on which it is refused. There is a right of appeal provided against the order of the Commissioner. The Government has been given the power to call for the records and if the Commissioner performs his duties in an imperfect or inefficient manner, the Government has power to direct him to perform his duties properly. The policy underlying the grant or refusal of a licence is clearly indicated in the Act. The cases cited by the learned counsel for the petitioner have no application to the facts of the instance case. Applying the principles laid down by the Supreme Court in the later decisions such as Tika Ramji, : 1SCR393 and Krishan Chand Arora's : 3SCR135 cases, it cannot be said that the powers given to the Commissioner are arbitrary, uncontrolled and unregulated and the restrictions imposed in applying for grant of licence cannot be said to the unreasonable restrictions. These restrictions are necessary in the interests of the general public because, if persons are allowed to carry on industry, business or trade within the city limits indiscriminately, it is bound to cause great inconvenience and nuisance to the persons residing in the locality within the City I am therefore of opinion that there is no merit in the first contention raised by Sri Dayanand on behalf of the petitioner.
(13) The second contention of Sri Dayanand is that under Section 417, no person shall be liable to be tried for any offence under any of the provisions of the Act unless a complaint is made within the six months from the commission of the offence. His contention is that the notice in the case was given by the Health Officer to the petitioner on 18-3-1964 and the charge sheet was filed on 20-2-1965 and as such, be urges, the complaint is bad.
(14) The learned High Court Government Pleader contends that this case comes within the latter part of Section 417, and that failure to take a licence is a continuing offence and if it is a continuing offence, section 417 states that the prosecution should be initiated within 12 months from the commencement of the offence. In this case, the date of the offence is 15-9-1964 and the charge sheet was filed on 20-2-1965. The prosecution case is that P.W.2 the Senior Health Inspector, went to the premises of the petitioner on 15-9-1964 and found that the petitioner was running a soap factory without having obtained any licence. The learned High Court Government Pleader has also cited before me a Bench decision of this Court in state of Mysore v. M.R. Srinivasan reported in (1965) 2 Mys LJ 27: (AIR 1966 Mys 136). Their Lordships have stated there that where the charge against the accused is that he had not obeyed the directions of the of the Factories Act, he commits a continuing offence which is punishable in the sense that he commits that offence again and again. As this is a continuing offence and on 15-9-1964 when the Senior Health Inspector inspected the premises, the petitioner was running a soap factory without licence and the charge-sheet was filed on 20-2-1965, it is clear that the complaint was laid well within six months and there is no merit in the contention of Sri Dayanand that S. 417 of the Act is violated. The learned Magistrate war right in holding that the complaint was well within time.
(15) There is equally no merit in the third contention urged on behalf of the petitioner, that if only soap manufacturing process was going on, it would come within Schedule V of the Act and would constitute an offence and not when the person is running a factory manufacturing soap. Schedule V narrates the purposes for which premises may not, under S. 297, be used without licence. Manufacturing by any process whatsoever, is rather difficult to understand. There is no merit in this contention that running a soap factory manufacturing soap. Schedule V narrates the purposes for which premises may not, under S.297, be used without licence. Manufacturing by any process whatsoever of soap is referred to in Schedule V. The charge against the petitioner is that he was found running a soap factory. How a person can run a soap factory without manufacturing soap by any process whatsoever, is rather difficult to understand. There is no merit is this contention that running a soap factory will not come within the definition of manufacturing by any process whatsoever of soap. This contention of the petitioner has therefore to be rejected.
(16) In the result,, all the contentions urged on behalf of the petitioner fail and this revision petition is dismissed.
(17) Petition dismissed