P.N.Mookerjee, J. - (1.) This Rule is directed against an order of the learned Municipal Magistrate, Calcutta, acquitting the accused opposite party S. E. Trading Co. Ltd., of a charge under Section 492, Calcutta Municipal Act, 1923, read with Section 179 (b) and Schedule 9 of the said Act. The offence alleged was the exercise of the calling of a market-owner without a license for the first half year of 1950-51 and the prosecution was launched on 29-12-1951.
(2.) According to the prosecuting Municipal authorities the accused were liable under the Act to pay a scavenging tax of Rs. 2340/- for the said first half year of 1950-51 in respect of the place alleged by the prosecution to be a 'market' and popularly known as Raja Katra in the Burra Bazar area of this city and to take out on such payment a license under Section 179 (b) of the Act for the said period, and they having failed to make the payment, and for such payment several demands were said to have been made, and take out the license and having actually exercised the calling of a market-owner in respect of the above place without such a license on and after the 1st day of June, 1950, that is, "on or after the 1st day of June in the year" as contemplated in Section 492 (1) (c) of the Act, the year being the financial year (vide Section 3 (69) 1950-51) committed the offence under Section 492 (1) (c) of the Act and were liable to be punished under the said statutory provision.
(3.) The defence 'inter alia' was that the place in question popularly known, as said above, as Raja Katra was not a market, at any rate, it had ceased to be a market and was not a market at the relevant time, and as such - its owners were not liable to pay the scavenging tax demanded, or, for the matter of that, any such tax at all, or to take out any license under Section 179 of the Act, and that, accordingly, the prosecution was unsustainable. A further defence taken was to the effect that there was no valid or proper determination of the daily average quantity of offensive matter or refuse removed from the alleged market, and in the absence of such determination no liability to pay the scavenging tax or take out the license under Section 179 (b) could arise and no prosecution could be maintained under Section 492(1) (c) of the Act. Several other defences appear on the record, but they are not of much substance, and as before me no reference was made to them on behalf of the parties they may safely be left aside.;