1. The applicant, Jabbar Singh, has been convicted of a breach of the Municipal Rules made by the Municipality of Cawnpore and has been sentenced to fifty rupees fine, the maximum punishment allowed. The rule is one, which purports to have been made under Section 128 Clauses (h), (i), for the regulation of the Collector Gunj market, in the Cawnpore Municipality. Rule 2 of these rules recites: 'No retail transaction shall be permitted in the market except in the street known as the 'Pharyas street' and on a strip of laud lying on both sides of and extending back eight feet from the pacca road traversing the market and leading from the Kotwali to the Bawan Dukan. Retail sales are only permitted subject to the payment of rent at the rate of eight annas per square yard par month for the area occupied and subject also to the condition that neither grain nor vegetables shall be sold.
2. For the purpose of these rules any transaction in which less than a cart load of produce is sold shall be considered retail transaction. The fees shall be collected and brought to account in accordance with the provision of the Municipal Account Code. Rule 4 says: 'Any person who sells retail in the market otherwise than in accordance with Rule 2 shall be punishable with fine which may extend to Rs. 50.' The case which was brought against the appellant was that he had sold gur retail on that portion of the market which was restricted to wholesale transactions. The Bench Magistrates, before whom the case came, found, as a matter of fact, that the transaction in regard to which the accused was charged had taken place on that portion of the land specially set aside for 'retail' transactions. Bat the Court convicted him because he had not paid rent at the rate of eight annas per square yard per month prior to the transaction in question. Among other defences, the applicant pleaded that he was a mere dandidar or a weigh man and that as such he was neither a seller nor a buyer nor an agent of either. The Bench Magistrates held that he was a dandidar, but they held that because the dandidars frequently arrange a sale between the seller and the buyer or rather they frequently bring the buyer and the seller together, therefore, the man who weighs produce in the market is a person who sells. I may note here that certain points of law are raised on behalf of the applicant which go to the root of these rules and the validity and the legality thereof. But I do not propose to waste time in deciding any question of law, when clearly upon the facts of the case the applicant has not committed any breach of the rule itself. Rule 2 says that retail sales are only permitted subject to payment of rent. The rule is cumbersome and unwieldy and I should think most difficult indeed to work. It is urged that the applicant should have gone and paid rent at the rate of eight annas per square yard per month prior to carrying out the sale. It was alleged that he had sold in this manner previously and was warned. But the Bench Magistrates very much doubted the truth of that evidence. It seems to me extremely doubtful that Rule 4 of these Rules was ever intended to be used in the manner in which it is being used in this case, that is to say, to fine a man because he has not paid a fee which was due to the Municipal Board. There is nothing to show that any demand was ever made for payment or that he ever refused to pay. The definition of retail sale is quite unworkable. It is according to the rule a sale of anything less than a cart load of produce. Carts vary in size, from a hand cart to a camel cart and bullock cart carrying forty maunds. It would almost be open to any one to say that he sold within the meaning of this rule if he carried a toy cart load of produce to the market and sold it there. Even if the applicant had been the actual seller in the present case it would be difficult to hold, in the face of these rules, that he sold less than a cart load. But it is quite clear that the applicant was neither the seller nor the buyer. In the present transaction, he sold neither retail nor wholesale. He may or may not have brought the buyer and the seller together. The only part he took in the transaction was the weighing of the produce and receiving of payment for his services as a weigh man. It was not his duty to pay rent for the land nor was he liable to pay any such rent. He has committed no breach of rules and, therefore, ought not to have been convicted. I, therefore, accept the application and set aside the conviction and sentence. The fine, if paid, will be refunded. In my opinion, the Municipal Board would be wise if it revised its rules and brought them a little more in accordance with common sense.