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Superintendent and Remembrancer of Legal Affairs to State of West Bengal Vs. Sri Iswar Lakhi Janardan Thakur Jew and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberGovt. Appeal No. 1 of 1954
Judge
Reported inAIR1960Cal170,63CWN820
ActsCalcutta Municipal Act, 1951 - Sections 5, 5(42), 450, 451, 451(1) and 537; ;Evidence Act, 1872 - Section 105
AppellantSuperintendent and Remembrancer of Legal Affairs to State of West Bengal
RespondentSri Iswar Lakhi Janardan Thakur Jew and ors.
Appellant AdvocateAjit Kumar Dutta and ;Soudhindra K. Basu, Advs.
Respondent AdvocateS.S. Mukherjee and ;P. Burman, Advs. for Nos. 3 to 7 and ;Anil Kumar Sen, Adv. for Nos. 1 and 3
DispositionAppeal allowed
Excerpt:
- .....26, indra biswas road, in ward no. 30, within district cossipore of the corporation of calcutta. a private market without a license having been found to exist at the said premises, the respondents were prosecuted under section 451 (1) (a) read with section 537 of the calcutta municipal act, 1951.3. the respondents' defence was twofold: firstly, that they were not the owners of the market and, secondly, that the market concerned not having been declared and licensed by the corporation as a market was not a 'market' within the meaning of clause (42) of section 5 of the act and that they could not, therefore, be prosecuted for keeping open a market within the meaning of section 451 (1) (a) of the act.4. the learned trial court held [hat in order to found a conviction under section 451 (1).....
Judgment:

Mitter, J.

1. This is an appeal by the State against the respondent's acquittal of a charge under Section 451 (1) (a) read with Section 537 of the Calcutta Municipal Act, 1951. The charge was for keeping open a private market without a license granted by the Commissioner in that behalf for 1953-54.

2. The respondents as sebai's of a deity were, at all material times, as they still are, in occupation of premises No. 26, Indra Biswas Road, in ward No. 30, within district Cossipore of the Corporation of Calcutta. A private market without a license having been found to exist at the said premises, the respondents were prosecuted under Section 451 (1) (a) read with Section 537 of the Calcutta Municipal Act, 1951.

3. The respondents' defence was twofold: firstly, that they were not the owners of the market and, secondly, that the market concerned not having been declared and licensed by the Corporation as a market was not a 'market' within the meaning of Clause (42) of Section 5 of the Act and that they could not, therefore, be prosecuted for keeping open a market within the meaning of Section 451 (1) (a) of the Act.

4. The learned trial court held [hat in order to found a conviction under Section 451 (1) (a) read with Section 537 of the Act, the market concerned should have been first declared and licensed by the Corporation as a market. The principal point involved in this appeal is whether or not the learned trial court's interpretation was right.

5. The first point as to whether or not the respondents were responsible for the user of the property need not detain us, as the finding of the trial court that the respondents as sebaits were in occupation of the premises has not been challenged.

6. In order to appreciate the second point raised on behalf of the respondents, namely that a private market, not being declared and licensed by the Corporation as a market, is not a market within the meaning of Clause (42) of Section 5 of the Act and that, therefore, no prosecution lies for keeping it open, without a license in that behalf, it is necessary to look at the relative provisions. A market is defined by Clause (42) of Section 5 as follows:

'the expression 'market' shall be deemed to be synonymous with the expression 'bazar' and means

(a) a place where persons assemble for the sale of meat, fish, fruit, vegetables, live-stock, or any other article of food of a perishable nature, whether or not there is any collection of shops, or ware-house or stalls for the sale of other articles in such place, or

(b) any place of trade other than, a place referred to in Clause (a) where there is a collection of shops or ware-houses or stalls exceeding a number to be prescribed by the Corporation by rules, which is declared and licensed by the Corporation as a market;'

It is clear that a market within the meaning of Clause (42) has to be declared and licensed by the Corporation as a market. The expression 'which is declared and licensed by the Corporation as a market' governs both (a) and (b) of Clause (42), This was also the view of the trial court. The expression 'private marker' appearing in Sections 450 and 451 is not defined. The material parts of Section 451 are as follows:

'451 (1). No person shall, without or otherwise than in conformity with the terms of a license granted by the Commissioner in this behalf-

(a) keep open any private' market, or wilfully or negligently permit any place to be used as a private market; ..... ..... ' ...... ...... ...... ...... ......Provided as follows:--

(i) the Commissioner shall not refuse, suspend Or cancel any license for keeping open a private market for any cause other than the failure of the owner thereof to comply with some provision of this Act, or with some by-law made under Section 527 at the time in force;.....' The material parts of Section 537 which is the punitive section are as follows:--

'537. (1) Whoever commits any offence by-

(a) contravening any provision of any of the sections, sub-sections, clauses of sections, provisos or rules of this Act mentioned in the first column of the following table, or

(b) contravening any provision of any rule made under any of the said sections, sub-sections, clauses, or provisos, or

(c) failing to comply with any direction lawfully given to him or any requisition lawfully made upon him under any of the said sections, sub-sections, clauses, or provisos, or rules, shall be punished with fine or imprisonment which may extend to the amount or period mentioned in that behalf in the third column of the said table.'

7. Now, the question is whether a private market, which is not defined, is to be regarded as a market within Clause (42). It is conceded on behalf of the respondents that their market, not having been declared and licensed by the Corporation as a market, is not a market within the meaning of Clause (42). A 'Municipal market' as defined in Clause (47) of Section 5 means a market belonging to or maintained by the Corporation. The expression 'private market' appearing in Sections 450 and 451 is not, as already stated, defined. The question for decision is whether a private market as used either in Section 450 or in Section 451 must have all the attributes of a market as defined in Clause (42) of Section 5. In our view, the expression private market is descriptive of a bazar which is owned and maintained by a private individual and is not necessarily a market within the meaning of Clause (42). Such a bazar can be a market when it satisfies the conditions laid down in Clause (42). Section 450 gives the Corporation power to permit the Opening of new private market and is in the following terms:

'450. (1) The Corporation shall from time to time determine whether the establishment of new private markets shall be permitted in Calcutta or in any specified portion thereof.

(2) No person shall establish a place of the description referred to in Sub-clause (a), Section 5,Clause (42), except with the sanction of the Corporation.

3. When the establishment of a new private market has been so sanctioned, the Commissioner shall cause a notice of such sanction to be affixed in the English, Bengali, Hindi and Urdu languages on some conspicuous spot on or near the building or place where such market js to be established.'

It is to be observed that in terms of Sub-section (2) of Section 450 no person shall establish a place of the description referred to in Sub-clause (a), Section 5, Clause (42), except with the sanction of the Corporation. This sub-section makes it clear that no private market is permitted, unless it be declared and licensed by the Corporation as a market. Such a private market is undoubtedly a place of the description referred to in Sub-clause (a) of Clause (42) of Section 5, but not being declared by the Corporation as a market, it is not a market within the definitive section. In our view, Section 451 is not concerned with a market as defined under the Act, but is concerned with a market owned and maintained by a private individual without a license from the Corporation. That being so, a prosecution for keeping open such a private market is maintainable under Section 451 read with Section 537 of the Act.

8. In interpreting the expression 'private market,' it is not necessary to pray in aid the relative provisions of the earlier Act. What, according to the respondents, Section 451, inter alia, prohibits is the keeping open a market as defined by the Act and that, therefore, they cannot be prosecuted so lone as their market is not declared and licensed by the Corporation as a market. This is absurd, for, according to the respondents, they cannot be prosecuted either when their market is declared and licensed as a market or when it is not if this contention were accepted, then Section 451 would be meaningless. After a private market has been declared and licensed by the Corporation as a market, the owner thereof can be prosecuted, if the license therefore is suspended or cancelled Owing to his failure to comply with some provision of the Act or with some by-law made under Section 527 or if he fails to renew the relative license which is renewable annually. In such a case, there being no license, a prosecution would lie for keeping open the market. To say that the owner of a private market can never be prosecuted because his market has not been declared and licensed by the Corporation as a market is to make non-sense of Sections 450 and 451 of the Act.

9. Mr. S. S. Mukherji appearing on behalf of the respondents finally argued that in the absence of any evidence that the respondents had failed to apply for a license for their market, the conditions) embodied in the proviso to Section 451 were not satisfied and that, accordingly, the prosecution was, in any event, bound to fail. We do not accept this contention, for, the onus of proving the existence of circumstances bringing the case within the proviso to the section was, in any event, upon the respondents. This is clear from the express terms of Section 105 of the Evidence Act. In our view, it was not necessary for the prosecution to prove that the respondents had not applied for a license for the market for the year in question. That being the position, we cannot say that the prosecution did not discharge the burden which lay upon it. All that the prosecution was required to do was to show by credible evidence that the respondents were responsible for keeping open the market without a license in that behalf.

10. In the result, this appeal succeeds and is allowed. As to sentence, we think that in all thecircumstances of this case a fine of Rs. 25/-(Twentyfive rupees) for each of the respondents, except respondent No. 1 -- the deity -- will meet the ends of justice, and we order accordingly.

Sen, J.

11. I agree.


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