Rajagopala Ayyangar, J. - (1.) THE proper construction of Section 244 of the Madras District Municipalities Act (V of 1920), is the point raised in this petition which prays for the issue of a Writ of Prohibition against the Municipal Council, Pollachi, from enforcing the licensing provisions under Section 249 read with Schedule V of Act (V of 1920) in regard to the petitioner's tea stalls.
(2.) THE petitioner has been running tea stalls within the Railway premises of the Pollachi station for the past several years. The Municipal Council of Pollachi had in conformity with the provisions of Section 249 of the District Municipalities Act published a notification in the District Gazette and had also otherwise proclaimed to the public as required by that section that No place within the municipal limits or at a distance within three miles of such limits shall be used for any one or more of the purposes specified in Schedule V without the licence of the executive authority and except in accordance with the conditions specified therein " (Section 249(1). In pursuance of this notification the Municipality required the petitioner to take out a licence for conducting the tea stalls in the Railway premises on the ground that tea stall was a business which could not be carried on without a licence as such use fell within Schedule V (j). As the petitioner defaulted in complying with these provisions, the Health Officer of the Municipality served a notice upon the petitioner calling upon him to take out a licence and threatening him with prosecution in default. The petitioner thereupon has filed this petition seeking the issue of a writ of prohibition prohibiting the first respondent -Municipality from levying the licence fee and otherwise enforcing the provisions of the District Municipalities Act by prosecuting the petitioner. Two points are made in the affidavit in support of this petition as grounds for denying the jurisdiction of the Municipal authorities. In paragraph 2 of the supporting affidavit the petitioner stated that the railway premises of the Pollachi station where the petitioner was having his tea stalls are outside the area of the jurisdiction of the Pollachi Municipality. I do not consider that there is any substance in this contention since, even though the premises of the Railway are the property of the Union Government, they are not outside the territorial limit of the Municipality.
(3.) THE second point raised has a little more substance. It is based upon the language of Section 244 of the District Municipalities Act as now in force. In its present form that section runs: 244. Nothing in this Act or in any rule, by -law or regulation made thereunder shall be construed as requiring the taking out of any licence or the obtaining of any permission under this Act or any such rule, by -law or regulation in respect of any place in the occupation or under the control of the Central or the State Government or of a market committee established under the Madras Commercial Crops Markets Act, 1933, or in respect of any Government property or of any property belonging to such market committee. The arguments submitted by learned Counsel for the petitioner was that this section is made up of two parts, (1) the earlier part which exempts from the operation of the Act and the rules made there under, places in the occupation or under the control of the Central and other Governmental and statutory authorities and (2) without reference to any question of occupation, the property of Governments and of the market committee. Learned Counsel for the petitioner invoked the benefit of both these parts as sustaining the exemption of the petitioner's business from the operation of the licensing provisions. In regard to the first part he said that the terms of the agreement between the petitioner and the Railway under which the former was permitted to run the stalls amounted merely to a licence and not a lease and that therefore the premises -that is the railway platform where the business was conducted, still continued to remain in the occupation of the Central Government, and that under the opening words of the section neither the District Municipalities Act including Section 249 nor the rules, or by -laws made thereunder would apply to these premises and to the business carried on by the petitioner in them. In regard to the second part of the section which referred to the property of the Government not being subject to the provisions of the Municipalities Act, the argument was that it was absolute in its terms and that as undoubtedly the railway premises were the property of the Union, the entire District Municipalities Act including the licensing provisions could not be applied to a business carried on in that property.;