1. The petitioner has been convicted under Clause (2) of Section 273 of the Bengal Municipal Act (III.B.C. of 1384) and sentenced to pay a fine of Rs. 30 or in default to suffer rigorous imprisonment for one month.
2. The offence charged against him is that he used without a license certain premises in the town of Cuttack for the purpose of storing hides, such user being in contravention of the provisions of Section 261.
3. Sections 261 and 273 are contained in Part VI of the Act and it is not disputed that that Part has been extended to the Cuttack Municipality by an order of the Local Government duly made under Section 221.
4. Nor is it disputed that the storage of hides is an offensive trade or business to which the provisions of Section 261 are applicable.
5. What is urged on the petitioner's behalf is that Section 261 only applies 'within such local limits as may be fixed by the Commissioners at a meeting,' and that the record does not prove that any limits were so fixed.
6. The case for the prosecution is that Section 261 has been applied to the whole area of the Municipality and learned Counsel for the petitioner contended in the first place that the language of the section shows that it cannot be applied to the whole but can only be applied to a part of the Municipal area. The words 'within such local limits,' he argued, mean something different from and less than 'within the whole or any part of a Municipality.' We can only say that we do not agree with him that the power conferred is restricted in the manner he suggests and that, in oar opinion, the language used, is wide enough to enable the Commissioners of a Municipality (if in the exercise of their discretion they should think it proper so to do) to apply the section to all places within Municipal limits or the entire area within the Municipal boundaries. Suppose that a Municipality consists of three wards A, B and C. The Commissioners might by successive resolutions enforce the provisions of the section in each ward or they might enforce them uno icto by one resolution in all three wards.
7. The real difficulty arises from the fact that no resolution of the Commissioners, fixing the limits within which licenses should be required for certain offensive or dangerous trades, is forthcoming The order of the Government extending Part VI to the Municipality was made in September 1891. The Commissioner's resolutions or minute book for that year has apparently been destroyed or mislaid and no resolution fixing limits for the purposes of Section 261 is included in the compilation of bye-laws of the Municipality. No doubt, that compilation contains what is apparently the original scale of fees for licenses and the provisions of the section have in fact been enforced for a considerable time past. At a meeting held on the 19th October 1895, the Commissioners resolved in effect that a place for the storage of hides was a place of business from which offensive or unwholesome smells might arise within the meaning of Section 261. At another meeting held on the 22nd January 1891, the Commissioners resolved, with reference to a previous resolution of the 4th November 1891 (which may or may not be the missing resolution), to obtain the sanction of the Divisional Commissioner to a revised scale of fees for licenses. Sanction was subsequently given and the fee for a license for the storage of hides was raised from Rs. 25 to Its. 30 a year. The petitioner has himself taken out licenses for a number of years past and paid the prescribed fee therefor. His last license expired on the 31st March 1912.
8. These facts may show what has actually been done in the Municipality bat they are not sufficient to show whether any, and if any what, local limits were duly fixed for the purposes of Section 261 by the Commissioners at a meeting. A legitimate way of proving the proceedings of a Municipal body in British India is by a copy of such proceedings, certified by the legal keeper thereof or by a printed book purporting to be published by the authority of such body.' Clause (5) of Section 78 of the Indian Evidence Act. Assuming that a resolution was passed and that the proceedings containing it have been lost or destroyed, secondary evidence might, no doubt, be given of its terms under Section 65 of the Evidence Act. But there is no secondary evidence of the resolution on the record. There is no copy of it of any kind, and no oral account of its terms. In fact, there is no direct evidence that any resolution fixing limits was ever passed by the Commissioners at a meeting. In other words, the prosecution has failed to prove the existence of any such resolution and if it be assumed that a resolution was passed, the prosecution has failed to prove its purport in the manner required by law. The presumption that official acts have been regularly performed [Section 114, Evidence Act, illustration (e), cannot supply the deficiency in the proof. As a rule, the contents of document cannot be proved inferentially and we can only say that an important public body such as a Municipal body should take more care of its records than appears to have been taken in the case before as. A power to make bye-laws is a power to legislate. Bye laws ought not to be mislaid. They ought to be collected in a form accessible to those who are governed by them.
9. In one sense, the defence raised is somewhat technical. The petitioner is and has all along been perfectly willing to take out a license and to pay the fee therefor. Apparently, however, in March or April 1912, the Municipal authorities came to the conclusion that no more licenses should be granted for the storage of hides, and notice of this determination was given to the petitioner. On the 13th May 1912, the Commissioners at a meeting formally resolved 'that no license for storing hides within the Municipal limits be granted from 1st April 1912.' The petitioner's offence, therefore, really consisted in this that he carried on his business without a license after it had been decided that it would be useless for him (or any one else) to apply for one and according to the case for the prosecution, the position is that there is one general rule under which licenses may be granted for the storage of hides on the payment of a fee and another general rule that no such license shall be granted. It may be doubted whether the penultimate clause of Section 261 empowers the Commissioners to do more than withhold the license in individual cases, each case being considered on its own merits. This question, however, was not fully argued and we express no final opinion upon it. It is not the case for the prosecution that any action had been taken under Section 262.
10. In the result, the Rule is made absolute on the ground on which it was granted, namely, that it is not proved that any local limits have been fixed by the Commissioners at a meeting under Section 231 of the Bengal Municipal Act. The conviction and sentence are set aside and the fine, if paid, must be refunded.