This is an application to revise the order of the Sub-Divisional First Class Magistrate of Chidambaram, acquitting the accused in a prosecution launched by the Municipal Council of Chidambaram under Section 338 (6) read with Sections 249 and 321 of the District Municipalities Act.
The facts of the case are: The respondent, a Coffee-hotel keeper, had a license for carrying on business of Coffee-hotel keeper for the year 1926-27. As he disobeyed the order of the Chairman in connection with some matternot connected with the license, the Chairman gave notice that ha had cancelled his license.
Notwithstanding the cancellation, the respondent continued to carry on business as Coffee-hotel keeper and he was prosecuted for keeping a Coffee-hotel without, license as required by Section 249 and Schedule V of the District Municipalities Act. The learned Sab-Divisional aMagistrate acquitted the respondent on the ground that the proseon tion had failed to prove that there was any justification for the order cancelling the license. The Chairman, Municipal Council, Chidambaram, has preferred this criminal revision petition.
The contention of Mr. T.R. Ramachandra Aiyar for the petitioner is that it was not open to the Magistrate to consider the question whether the cancellation was proper or improper and that after the license was cancelled the respondent carried on business without a license and, therefore, he is liable to be punished under Section 338 (b).
The question for consideration in this case is whether a Criminal Court could consider whether the order, cancelling the license, was within the jurisdiction of the Chairman. The argument of Mr. Ramachandra Aiyar is that under Section 249 a licenseis necessary for keeping a Coffee-hotel. Under Clause 6 of Section 321, it shall be the duty of the Chairman to inspect places in respect of which a license or permission is required by or under the Act and he may enter any such place between sun-rise and sun-set in order to satisfy himself that the condition of the license art observed and, if any of the terms of the license are violated, the Chairman has power to cancel the license. It is argued that the Chairman having cancelled the license, the respondent ceased to have a license, for the moment a license is cancelled it oeases to be in operation and his carrying on business after the cancallation would be carrying on business without a lioansa, for Clause 7 says, 'When any lioense or permission is suspended or revoked, or when the period for which it was granted, or within which application for renewal should be made, has expired, which ever expires later, the grantee shall for all purposes of this Act or any rule made under this Act be deemed to be without a lioense or permission until the order suspending or revoking the license or permission is cancelled or, subjeot to Sub-section (11), until the license or permission is renewed, as the case may be.' The question is whether a license which has been granted by the Chairman can be cancelled for any reason other than for a violation of any of the conditions or the terms of the license and the second question is whether the Court can in dealing with the accused under Section 338 go into that question. As regard the first question whether the Chairman could cancel a license for any other reason or for no reason has to be considered in, connection with the provisions of the Act. The Chairman can cancel the license under Section 321(5) only for the contravention of any of its terms and it is not open to him, to cancel the license for any reason that he thinks proper. In this case the reason for cancelling the license is the non-payment by the respondent of the water-tax. However reprehensible the conduct of the respondent may be in not paying the water-tax due to the Municipality, that would not be a ground for cancelling his license to carry on business of a Coffee-hotel keeper. Therefore, the cancellation of the license was ultra vires of the Chairman of the Municipal Council.
The next question is whether the Court could go into that question in a possession launched by the Municipality under Section 338. The contention of Mr. Ramachandra Aiyer is that it is not open to the Court to go into the validity or otherwise of the cancellation because it is outside the province of the Court trying an accused person for an offence under the Municipal Act to go into the queatioa whether any order made by the Municipal Chairman is proper or improper. Section 338 makes punishable the doing of any act if that act is done without license or permission or registration or in a manner inconsistent with the terms of any such license or permission and under Clause (a) the Chairman may give notice to the person doing the act to alter, remove or as far as practicable restore the whole or any property within the time specified in the notice. Then Clause : (1922)42MLJ149 says: - 'If no penalty has been specially provided in this Act for bo doing such act, the person so doing it shall be liable on conviction before a Magistrate to a fine not exceeding 50 rupees for every such offence.' It is not denied that carrying on a hotel-keeper's business without a license is an offence punishable under Section 338. But the respondent having had a license, the improper or illegal cancellation of it by the Chairman does not deprive him of the license which he obtained properly and the terms of which he has not in any way violated. A distinction has to be drawn between a case of refusal of a license asked for the doing of a thing and the cancellation of a license which a person has properly obtained. In the case of a refusal of a license for a bus it may be that the Municipal Chairman has some reason for refusing it and it would not be open to the Court to consider whether the reasons were good or bad, for no reasonable man who ia acting as Chairman would refuse to grant a license unless he has some reason for refusal. But if it is patent to the Court that there could have been no reasons, the Court could come to the conclusion that the refusal amounted to not doing what is required by the Act but something which is outside the Act and such refusal might be considered to be ultra vires the Chairman. In the case of a license which has been granted and which is good for a period, it would be ultra vires the Chairman of the Council to cancel it or suspend it for not something which the licensee did in contravention of the terms of the license but for something which was unconnected with the license. In such eases the Court is not prevented by anything contained in the District Municipalities Act from holding that such an act was not within the ambit or within the scope of the powers vested in the Chairman of the Council by the Act and, therefore, the reason for doing such an act would not arise for consideration. I think on this principle the various cases on the interpretation of the several sections of the District Municipalities Act can be reconciled.
Reliance is placed by Mr. Ramachandra Aiyar upon Muthu Balu Chettiar v. Chairman, Madura Municipality : AIR1927Mad961 in support of bis position that it is not open to the Magistrate to go into the validity of the order of the Chairman cancelling the license. That case does not help him. In that case it was held that it was not open to the Court to question the validity of the rules framed under the District Municipalities Act. The learned Judges observe at page 835Page of (1927) M.W.N.--[Ed.]. 'The offence charged is under Section 338 of the Act and consists of using the rice mill without the license prescribed by any rule or law or regulation made under the Act. The necessary rules have been framed in this case and it is not within the province of a Criminal Court to determine whether such rules have been validly framed a matter which should be left for determination in a Civil Court.' If the Criminal Court were to go into the validity of the terms of the license that would be outside the province of the Court but it is open to the Court to consider whether the Chairman acted within the powers given to him by the rules framed under the Act for the issue of licenses under the Act. That the Municipality cannot act in contravention of the Act is a well-established proposition. The Municipality is a statutory body and it cannot act in contravention of the terms of the Statute by which it is created. In Queen-Empress v. Veerammal 16 M. 230; 1 Weir 733; 5 Ind. Dec. 867 a person applied for a building license and the Municipality refused to grant the license on the ground that the land proposed to be built on was required for Municipal purposes. Notwithstanding the refusal of the Municipality to grant a building license the party put up the building. Then an order was served upon the party to remove the building but the party refused to remove the building whereupon a prosecution was launched and a Bench consisting of Justices Muthu-sawmy Ayyar and Best set aside the conviction on the ground that the Municipality acted outside its powers in refusing a license. Mr. Justice Best observed: 'The order of the Council directing Veeramma] to abstain from building on a portion of her land was ultra vires and their further notice directing her to remove the building for no other reason than that it had contravened such order was illegal, and, therefore, not one that she was bound to Obey.'
It is unnecessary to consider in detail gome of the cases quoted by Mr. Pafcaajali Sastri such as those in Chairman, Municipal Council, Chicacole v. Gajireddi Seetharamayya Naidu 90 Ind. Cas. 152; 21 L. W. 280; A.I.R. 1925 Mad. 584; 26 Cri. L.J. 1496, Ramachandran Servai v, President, Union Board Karaikudi 91 Ind. Cas. 529; 49 M. 888; 49 M.L.J. 356; 22 L.W. 393; A.I.R. 1925 Mad. 1015; (1925) M.W.N. 743; 27 Cri. L. J. 97 and Taluk Board, Bandar v. Mallikarjuna Prasada Naidu 61 Ind. Cas 497; 44 M. 156; 12 L.W.585; (1920) M.W.N. 748; 28 M. L. T. 440; 1920 40 M.L.J. 91. It was held by Mr. Justice Oldfield and Mr. Justice Krishnan in Sesha Prabhu v. Emperor 81 Ind. Cas. 72; 45 M.L.J. 31; 18 L.W. 870-33 M.L.T. 185; 1924 Mad 380; 25 Cri. L.J. 584 that the validity of a notification under the Act could be questioned in a prosecution launched for a violation of the notification. In that case the notification was published as if it was under the new District Municipalities Act of 1920, As a matter of fact on the date of the notification, the District Municipalities Act had not come into force and the Court held that the notification published before the Act came into force was not a valid notification and the accused who acted in contravention of that notification was not guilty of an offence under the new Act. Eeliance is placed by Mr. Eama-chandra Aiyar upon a decision of Mr. Justice Krishnan reported as In re Krishna-swami Pillai : (1925)48MLJ132 . In that case Mr. Justice Krishnan upheld the conviction for driving a car without a license and the accused's contention was that the President of the District Board to whom he applied for license improperly refused to grant a license and that he was justified in driving it without a license. Justice Krishnan observed: 'I do not think that his order can be regarded as an absolute nullity as is argued and the case considered as one in which no order has been passed. It may be that the accused can claim damages against the President if he is able to establish that the President exercised his powers under Section 218 not bonafide but with malice on account of personal ill-feeling against him. That question will have to be, considered whena proper case is brought, but in this prosecution, the accused, in order to escape punishment, must show that be had a license given by the President of the District Board or he comes under Clause 11 of Section 212' This decision is not against the principle that where the President of a District Board or the Chairman of a Municipal Council acts ultra vires his order cannot but be invalid and a violation of the order cannot be the subject of a criminal charge. It may be that the refusal to grant a license may be for proper and valid reasons and the Court cannot go into the validity of the reasons or the expediency of the occasion which necessitated the refusal of the license and a Court is bound to assume that the Chairman acted properly but where he is bound to do a certain thing and he does not do it, or where he is not permitted to do a thing and he does it cannot be said that the Court could not go into the question of the validity of the omission or act, especially when a prosecution is launched against a person for violating the illegal or ultra vires order of omission or the act of the Chairman A prosecution under Section 338 is a criminal pro-secution in which a person is sought to be convicted. In order to sustain a conviction it must be shown that the accused violated a legal order which a public servant or a statutory body was authorised under the law to pass. As observed by Mr. Justice Krishnan in In re Smith (8): 'The prosecution must establish affirmatively to his satisfaction that the tax was payable and that there was a default in payment of the tax. The fact that the accused did not appeal to the standing committee cannot be treated as in any way preventing him from raising the plea before the Criminal Court where he is sought to be convicted of an offence by the prosecutor.' This observation meets the argument of Mr. T.E. Ramachandra Aiyar that the respondent should have appealed to the Council against the order of the Chairman and if he did so the Council could have put right. Supposing the Council did not choose to put the matter right, would he be liable to ba convicted under Section 338? I have no hesitation in holding that, where an act is ultra vires of a statutory body, whether it be of the Chairman or of the whole Council, the Court, which is asked to convict a person for the violation of the order of the statutory body, is not prevented from considering the legality of the order. Where the order is within the powers of the Chairman of the Council or sanctioned by the rules framed under the Act, it is not open to the Magistrate or the Court to go into the necessity, expediency or the reasonableness of the order. In this case the order of the Chairman was ultra vires and, that being so, the license cannot be said to have been cancelled and the respondent cannot be said to have been trading or carrying on business without a license. The order of the lower Court is right and the petition is dismissed.