1. Bassarmal has been found guilty of an offence under Section 161 of Regulation 6 of 1925 (Ajmer-Merwara Municipalities Regulation read with bye-laws framed under Chief commissioner's Notification No. 41-G/33 dated 22-2-1938. He has been sentenced to a fine of Rs. 3/- only. Against his conviction and fine, he has come up in revision. I have heard the learned Counsel for the applicant, the learned Public Prosecutor and the learned Counsel for Ajmer Municipality.
2. The prosecution case is that Bassarmal was found on 29-7-1952 working a flour mill without being in possession of a licence for the same. The facts are not challenged.
3. The learned Counsel for the applicant has urged that the bye-laws are in excess of the powers conferred on the Municipality by Section 245 of Regulation VI of 1925. The learned Public Prosecutor concedes that under Section 245, the Municipal Committee is empowered only to frame bye-laws for the inspection and proper regulation, of the flour mills. He urges that the power to render a licence necessary is drawn from the provisions of Section 161. This Section reads:
No place within a municipality shall be used ... as any other manufactory, engine house or place of business from which offensive or unwholesome smells, noises or smoke arise-except under a licence from the Committee which shall be renewable annually.
In my opinion the Committee in framing the bye-laws referred to above and laying down that:
No person shall establish or maintain a flour mill within the limits of the municipality except under a licence and in accordance with the conditions ....
only exercised their powers under Section 161 on-being satisfied that a flour mill was a manufactory, engine-house or a place of business from which offensive or unwholesome smells or noises arise'. It has not been contested before me that the Municipal Committee was wrong in coming to the conclusion that offensive and unwholesome noises arise or come out from every Hour mill. As such. I am of opinion that under Section 161 (1) the Municipal Committee was empowered to render a licence necessary prior to the starting or establishment of a flour mill. The bye-laws notified on 22-2-1938 have not been assailed on any other point. I, accordingly, hold that they are not in excess of the powers conferred on the Municipal Committee by Regulation 6 of 1925.
4. The second point urged by the learned, counsel is with reference to Section 161 (2). This clause reads:
The licence shall not be withheld unless the Committee considers that the business which it is intended to establish or maintain would be the cause of annoyance, offence or danger to persons residing in, or frequenting the immediate neighbourhood, or that for general reasons the establishment of such business in the locality is undesirable.
The contention of the learned Counsel is that as the licence was refused for reasons not mentioned in Sub-clause (2), the applicant has committed no offence and the mere fact that the licence was refused for reasons not covered by Sub-clause (2) is a good defence in any criminal trial for maintaining a flour mill without a licence. I am unable to agree. The mere fact, that the Municipal Committee or its officers have, for reasons which can-.not furnish sufficient justification, refused the issue of a licence, will not justify the applicant's taking the law in his own hands and maintaining the flour mill without first obtaining a licence. His remedy lies either by a civil suit or by a writ of mandamus to compel the Committee to revise its decision and to issue the necessary licence. If the applicant takes the law in his own hand and starts or maintains a flour mill without first obtaining a licence therefor, then he is liable to the punishment provided under Section 161 of Regulation VI even though the Committee may have refused to issue the licence without sufficient justification.
5. The next point urged by the learned Counsel is that the applicant has been punished for the breach of the bye-laws. The contention of the learned Counsel is that as the bye-laws could, in terms of Section 245, provide only for inspection and proper regulation of flour mills and not for their licensing, the applicant could not be convicted under this bye-law. I am unable to agree. The bye-law derves its authority both from the provisions of Sections 161 and 245 of Regulation VI of 1925. I am, therefore, of opinion that the accused could be convicted for breach of condition of Clause 2 of the notification of 22-2-1938. The punishment, however, is provided under Section 161 (4) and the accused could be convicted only of an offence under Section 161 (4) read with notification No. 41-G/33, dated 22-2-1938. This is however, a minor mistake and the applicant was under no mis-apprehension. The Municipality challenged the applicant for having committed an offence under Section 181 of Regulation VI. I, therefore alter the conviction from one for breach of the bye-law to one under Section 151 read with notification no. 41-G/ 33, dated 22-2-1938. I also maintain the sentence of fine of Rs. 3/- only.
6. The learned trial Magistrate in his judgment has stated that the accused is being sentenced to pay a fine of Rs. 3/- in 'each' case. The learned Counsel appearing are unable to tell me what the learned trial Magistrate exactly meant by this. I trust the learned Magistrate was not passing a sentence of fine in each of the several cases which were pending before him. If this order governs any other case, it is set aside to the extent it refers to any criminal case other than Criminal Case No. 1796 of 1952.
7. No other point has been pressed before me.
8. I, therefore, see no force in this revision application and reject it.