Prinsep and Ameer Ali, JJ.
1. This is a case under the Bengal Municipal Act of 1884, in which the accused has been convicted and sentenced to fine, under Section 344 of Bengal Act III of 1884, for having permitted his land to be used as a market for the sale of provisions as therein specified without a license.
2. The Sessions Judge has referred the matter to us on revision, recommending on various grounds that the order should be set aside as illegal and improper. We have had the advantage of hearing learned Counsel on both sides, and have given the fullest consideration to their arguments, for though the case is apparently a petty one, the points raised are of some importance to the general community.
3. The case of Moran v. The Chairman of the Motihari Municipality I.L.R. 17 Cal. 329, which proceeded on facts almost exactly the same as in the present case, has been cited to us. That was a suit for damages in consequence of the closing of a market by order of the Municipal Commissioners of Motihari, and, after argument of counsel, the learned Judges held that the law placed absolute authority in Municipal Commissioners acting under the Act of 1884, so as to deprive the appellant of any relief or compensation for disturbance with his previously existing rights as proprietor of a market for which a license was refused. In the present case, amongst other matters, we have been asked to consider the legality of the order purporting to have been passed under Section 337, and whether the Commissioners were not bound to have granted the accused the license for which he applied to continue to hold the existing market for which apparently it is desired to substitute a rival municipal market.
4. Before proceeding further it may be mentioned that in the preceding November, the accused was convicted of the same offence as that for which he has been again convicted in June. He was then sentenced to a fine of Rs. 51 which was set aside by the Sessions Judge on appeal. He has now for a repetition of the same act, which was then held to be no offence, been again convicted by the same Magistrate and sentence to a fine of Rs 30 which sentence is not appealable. We are not prepared to accept the view of the law expressed by the Sessions Judge under which he set aside the previous conviction. We accept the opinion laid down in the case cited to us [Moran v. The Chairman of the Motihari Municipality I.L.R. 17 Cal. 329] that it is entirely within the discretion of the Municipal Commissioners to grant or refuse a license, and the Courts have no longer jurisdiction to control such power, however arbitrarily exercised. The Legislature has thought proper to enact such stringent provisions seriously affecting private property, and it is difficult to believe that they could have had before them the full consequences of such a measure or such a case as that now before us. Fortunately we have the satisfaction in the present case of being able to set aside the orders passed, because the matter has not been properly brought within Section 337, and the whole case therefore fails. We trust, however, that a statement of the whole case from beginning to end, as it has been represented to us and appears on the record, will not be without advantage, and especially to the party now before us.
5. The prosecution in the present case was by order of the Vice-Chairman. The law (Section 353) directs that no prosecution shall be without the order or consent of the Commissioners; but Section 44 provides that the Chairman shall exercise all the powers vested by this Act in the Commissioners, provided that he do not 'exercise any power which is directed to be exercised by the Commissioners at a meeting,' and Section 45 permits the 'Chairman by a written order to delegate all or any of the duties or powers of a Chairman.' A written order giving the Vice-Chairman powers under Section 353 to institute prosecutions under the Act, was passed in March last, and is a sufficient legal authority for the present case. We cannot accept the contention of the learned Counsel that, from the nature of the order or consent, it must be given at a meeting of the Commissioners. It seems to us that the Act expressly provides for certain acts to be done at a meeting, and thus draws a clear distinction between such acts and others not at a meeting formally convened. We have been asked to note specially the date of the order of the Chairman, and the fact that it was passed within a few days before the close of the official year (31st March) after which fresh licenses would be necessary for purposes requiring that authority. This may not be without some significance in the present case, if it should appear that the prosecution in it was the result of some private resentment and ill-will towards the accused. It is alleged that an application for a license was made on 20th February. It is not forthcoming, and that it was ever made is denied. It however appears that in a petition of the 1st July, asking for a transfer of this case to another Magistrate, it was mentioned and made one of the grounds of the application, and it was also pleaded in the course of the trial as one of the grounds of objection to this prosecution.
6. The Sessions Judge in referring this case to us has stated that 'it may be taken that the Madaripur Bazar site' (that is, the bazar of the accused) 'has been for many years past the ground east of the Madaripur khal so far as houses lasted.' But apparently the site has shifted from time to time as the bank of the khal was broken away by the action of the stream. The evidence in this case shows, too, that the bazar is not a new one. On the 15th January 1881, the Government of Bengal extended to Madaripur Part IX of the Municipal Act now repealed, and this applies equally to Part X of the Act of 1884, amongst which the law relating to the present case is to he found.
7. Early in August 1889, the Municipal Commissioners of Madaripur at a meeting passed the following resolution: 'That the provisions of Section 337 of the Municipal Act III (Bengal Act) of 1884 be extended to this municipality.' It is contended that, by this order, licenses were necessary to sell at any market any of the provisions mentioned in Section 337 within the municipality, and that the selling of such in a market as defined by Section 336 without a license on his land has rendered the accused liable to prosecution and fine under Section 344.* We have no hesitation in holding that the terms of the resolution above mentioned are not an order such as is contemplated by Section 337. That section was extended to the municipality as a part of Part X of the Act by an order of the Government of Bengal, and, therefore, the terms of the resolution are not sufficiently precise so as to convey any definite meaning. They purport only to declare that the Municipal Commissioners do what the Bengal Government had already done some time previously. We have further great doubt whether it was ever intended that Section 337 should be used in the manner attempted in the present case or without some clear ground of public benefit. From the Sessions Judge's remarks it would seem that the municipal market recently established is at some considerable distance from the market of the accused person, and not so conveniently situated. That, however, is of little consequence except to indicate the inexpediency or injustice of the closing of the private market. We observe again that in July 1890, the site of the market was disapproved by the Officiating Assistant Surgeon, because 'it was very low with deep ditches surrounded with cesspools, and has no drainage and no proper road leading to it.' He concluded: 'I should be very sorry to see such a place licensed by the local municipality for the purposes of a market place.' It was after this that the accused was convicted but acquitted by the Sessions Judge on appeal, so that the report is not necessarily a representation of the present state of the land, nor has the accused ever been directed to improve the land as a condition to obtaining a license. Attempt has rather been made steadily to close this market. It has been stated that the real object is substantial sanitary improvement. While we are at all times most ready to give every credit for such motives, we regret extremely to find very strong reasons for believing that personal motives are rather at the bottom of these proceedings. The Sessions Judge reports that at Madaripur local quarrels and the friction engendered by municipal politics are very well known. In the proceedings before us we find that the Vice-Chairman is the moving power. The Chairman, who holds the office of Assistant Surgeon, has stated, 'I do not remember to have seen the hat this year,' and that when the Vice-Chairman informed me that the accused was again permitting the land to be used as a hat, I told him to do what he deemed proper.' At the same time the Chairman states that the accused and the Vice-Chairman are on bad terms. The cause of difference in this case. The Vice-Chairman is not the mukhtear of the Pal Baboos now-a-days. The Pal Baboos are the owners of the land, and the accused is their local agent. We are informed by the Counsel for the accused that the Vice-Chairman is the discharged mukhtear of these Baboos, and this has not been contradicted. Taken with local quarrels and friction engendered by municipal politics, reported by the Sessions Judge, the resentment felt by the Vice-Chairman at his discharge from the service of the Pal Baboos furnishes good reason for believing that the action taken was not prompted by purely public motives, and there is much reason to attach weight to the argument of the learned Counsel, that the delegation of power to prosecute given to the Vice-Chairman towards the end of the official year of March last was obtained with the object of injuring those who had ceased to employ the Vice-Chairman as mukhtear. It has, we may add, been made the subject of unfavourable comment that whereas the Sub-divisional Magistrate held a regular trial and in convicting the accused passed an appealable sentence in November 1891, in June 1892, after that conviction and sentence had been set aside on appeal, he again tried the accused for a repetition of the same offence, not by the ordinary but by the summary procedure, and passed a sentence not open to appeal. It is very much to be regretted that this course was taken, and particularly after an attempt had been unsuccessfully made by application to the District Magistrate to remove the trial to some other Magistrate.
8. We set aside the conviction and sentence, as already stated, because no proper order has been passed under Section 337. We trust, however, that the statement we have given at some length of the state of the law and the manner in which the arbitrary powers conferred by it may, and indeed must, not unfrequently be used, will attract attention and lead to some change in the law which will ensure a better administration and afford some security for the maintenance of private rights. The fine, if paid, must be refunded.
* Penalty for using unlicensed market.
[Section 314: Whoever, being the owner or occupier of any land, wilfully or negligently permits the same to be used as a market for the sale of meat, fish, butter, ghee, fruits, vegetables, or similar provisions without a license under Section 338, shall be liable to a fine not exceeding two hundred rupees for every such offence, and to a further fine not exceeding forty rupees for each day during which the offence is continued after conviction of such offence.]