Decided on October 16,1952

STATE Appellant
JAGAT SINGH Respondents


Wanchoo, C. J. - (1.)THIS is a reference by the Sessions Judge of Ganganagar and has arisen in the following circumstances: The case relates to the district of Ganganagar where there is a Municipal Board. That Municipal Board passed certain Bye-Laws with respect to Teh Bazari under the relevant provisions of the Bikaner State Municipal Act (No. VI of 1923 ). These were published in the Bikaner Rajpatra of the, 30th January, 1937. Jagat Singh is one of the persons who had taken certain lands from the Municipal Board of Ganganagar under the Teh Bazari Rules. A complaint was filed against him in June; 1951, by the Executive Officer of the Municipal Board in which it was said that certain lands had been auctioned to Jagat Singh and certain terms were imposed upon him in connection with the auctioned land. The complaint added that according to term No. 12 of the auction terms, it was provided that on breach of any of the auction terms, the person taking the land would have to leave it within one week. The complaint then went on to say that Jagat Singh had been committing breach of term No. 4 of the auction terms on account of which the rent and the penalty had to be realised through the Tehsil and that a large sum of money as arrears of rent for eight months was still due from Jagat Singh and he was not paying it promptly. Then it is said that notice was given to Jagat Singh on the 17th of April, 1951, and he was directed to leave the land at once; but Jagat Singh had not paid any heed to the notice. Consequently, this complaint was filed with the prayer that after necessary action, Jagat Singh should be convicted, and the court should get the land evacuated.
(2.)A curious feature of this complaint is that it does not mention anywhere what the provisions of the law is which Jagat Singh has contravened and what is the provisions under which he should be convicted. Normally, in a complaint one finds mention of a section of some law under which the conviction is to take place and if a conviction is desired for breach of rules or bye-laws, a mention should also be made of the bye-law in question which has been broken and the provision of the law under which the breach of the bye-law is punishable. A complaint which does not disclose under what section of the law Jagat Singh was prosecuted or for the breach of what provision of any bye-law he was to be punished, should have been thrown out by the Magistrate at once or, at any rate, he should have asked the Executive Officer of the Municipality to point out the law under which he was to convict Jagat Singh. The Magistrate, however, did nothing of that kind. All that I find is that on the 3rd of October, certain questions were put to Jagat Singh. He of course admitted that he was in possession of the land but put forward the plea that he had not paid rent at the rate fixed by the Municipal Board because he had filed a suit under the Rajasthan Premises (Control of Rent and Eviction) Act, 1950, (Act No. XVII of 1950) for fixation of standard rent. He also said that the Municipal Board could not eject him in view of the provisions of Act No. XVII of 1950. This was treated by the learned Magistrate as an admission of guilt and Jagat Singh was sentenced to a fine of Rs. 25/-, and was ordered to give up possession by the 13th of October, 1951. It was also ordered that if he failed to do so, he would be fined at the rate of Rs. 5/- per day. The only reference I find to any provision of the law even in this judgment is in these words:
Tqez nqk 1 rsg cktkjh** Bye-laws. "

It seems that the learned Magistrate never cared to look at the Bye-laws. If he had done so, he would have found that bye-law No. 1 merely prescribes that - "no person shall set up any stall in any public street or place within the limits of the Municipal Board in order to expose for sale any merchandise except with the permission of the Board in writing and on payment of the fees set forth in the Schedule. " That bye-law thus prohibits the setting up of stalls but the punishment appears after bye-law 16. The penalty clause is not numbered and provides that - "any breach of the provisions of the foregoing Bye-laws shall be punishable with fine which may extend to fifty rupees and in the event of a continuing breach with a further fine which may extend to rupees five for every day after the date of first conviction during which the offender is proved to have persisted in the offence. "

The learned Sessions Judge has recommended that the conviction should be set aside and the case should be remanded for further inquiry. I agree with him that the conviction in this case should be set aside; but there is, in my opinion, no ground for ordering further inquiry in this case. All that the learned Assistant Government Advocate has been able to point out is that there is a breach of bye-law No, 4 and, therefore, the conviction is correct. It has been admitted by Jagat Singh that some arrears of rent are due from him and the argument is that in view of this admission, he is clearly guilty under bye-law 4. That bye-law reads as follows: - "unless the right of collecting the fees is leased out, every person from whom any such dues are leviable shall pay them to a servant of the Board duly appointed to collect them and obtain a receipt therefor which shall be produced on being called upon to do so by the Supervisor Tax or any member of the Board, Secretary, the Executive Officer or such other officer of the Board as may be authorised in that behalf. " This bye-law obviously provides to whom the person who is to pay Teh Bazari dues is to pay. It says that the payment should be made to a contractor in case such contractor has been appointed. If no such contractor has been appointed, the payment has to be made to a servant of the Board appointed for the purpose, and the payer should obtain a receipt for the payment and this receipt should be shown to any officer of the Board if demanded by such officer. This provision, in my opinion, is merely procedural one and tells the person who is to pay Teh Bazari dues, whom to pay, and also requires him to show the receipt to the officer of the Board if demand is made. There is no complaint that any officer of the Board demanded any receipt from Jagat Singh and that Jagat Singh refused to show the receipt. The complaint is that he has not paid the arrears of rent and, therefore, he is guilty of committing a breach of bye-law No. 4. I must say that simple non-payment of rent could not possibly have been intended by the framers of the Bikaner Municipal Act, 1923, to be an offence. It is unknown to all law that simply because a person who has to make certain payments to a municipal body and does not do so, should be guilty of an offence. Bye-law 4, therefore, must be treated merely as procedural, drawing the attention of those who have to make payments to the Board as to the manner in which this payment has to be made and to whom and further directing them to keep the receipts and to show them to officers of the Board if required to do so. If, however, no payment of rent is made, the Board will have the civil right to sue the person for arrears and cannot by its bye-law make non-payment of rent into a criminal offence. At any rate, I am not prepared to hold that the Board by simply including a procedural provision like that contained in bye-law 4 can make non-payment of rent into a criminal offence unless there is specific authorisation about this in the Bikaner Municipal Act.

The bye-law in question has been framed under sec. 135 of the Bikaner Municipal Act which provides that the Board while making a bye-law may direct that a breach, or an abetment of a breach of it, shall be punishable with fine, and the limits of the punishment are also set out in the section. The intention obviously is that where the Board frames a bye-law laying down substantive rules regulating certain matters, any breach of those rules would be punishable; but it does not mean that if there is a breach of any bye-law which is merely procedural the person concerned would be guilty. This would be clear from a comparison of some of these bye-laws. For example, bye-law No. 12 says that every hawker who wants to carry his goods on Thela should obtain permission of the Board. This is a bye-law which regulates the calling of hawkers, and any one committing a breach of this regulation would be liable to punishment. But take bye-law 11 which reads as follows: "bye-laws necessary for guidance of the persons engaged in a particular trade or business shall be printed in Hindi as foot-notes or on the backs of the licenses and receipts granted to them by the Board to ensure their due observance and to avoid hardship. " Suppose that by oversight or otherwise the Board fails to do so. Does it mean that whoever is responsible for this failure will be liable to punishment for breach of this bye-law ? Obviously, the answer is no. Therefore it follows that it is not every bye-law out of these sixteen, the breach of which would be a criminal offence. Some of them are clearly in the nature of substantive rules for regulating trade and a breach of them would be punishable; but others which merely provide the method as to how the bye-laws will be published or how rent will be realised are merely procedural and a breach of them would not be a criminal offence. In my opinion, bye-law No. 4 is of the latter kind and a breach of this bye-law will not be punishable as a criminal offence, though non-payment of rent will give rise to a civil remedy to the Board. In any case, I am not prepared to hold, in the absence of an express provision in the Bikaner Municipal Act to the effect that non-payment of the dues to the Board would be a criminal offence, that the Board could create a criminal offence of this nature. Under these circumstances, mere non-payment of rent by Jagat Singh would not make him liable to the penalty provided under these Bye-laws.

The second thing which has been admitted by Jagat Singh is that he has not given up possession of this land. The complaint of the Municipal Board was that in spite of notice having been given to Jagat Singh, he had not relinquished the land, and that this was against some term of auction terms. The copy of the auction terms is not available and has not been filed. Further, there is no rule in these Bye-laws which provides that the breach of auction terms would be punishable as a criminal offence under the penalty clause. Under these circumstances, even if the applicant has been given notice by the Board, and has not given up possession, the Board has a civil right to take such action against him as is provided by law or to take such action as it may be duly authorised to take under the Bikaner Municipal Act. But on the Bye-laws as they stand, this breach of the auction term, if there is such an auction term as alleged by the Board, would not amount to a criminal offence.

I am, therefore, of opinion that the complaint of the Board is entirely misconceived, and that on the facts given in that complaint, no criminal offence under the Bikaner Municipal Act read with Teh Bazari Bye-laws has been made out.

I, therefore, accept the reference but order that the conviction of Jagat Singh dated 3rd of October, 1951, is set aside and the proceedings based on the complaint of the Board dated 29th June, 1951, are quashed. .

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