- (1.) THIS appeal is at the instance of the Accused-Appellant M/s. Raja Katra @ Raja Katra private Ltd. , and directed against an order dated the 22nd May, 1969 passed by Sri N. K. Batabyal, Municipal and presidency Magistrate, 3rd Court, calcutta in case No. 91/c of 1957, convicting the accused-appellant under section 451 (1) (a) read with section 537 of the Calcutta Municipal Act, 1951 and sentencing it to pay a fine of Rs. 500/-in default whereof distress warrant was to issue.
(2.) THE facts necessary for considering the points at issue are put in a short compass. On a complaint made under section 451 (1) (a) of the Calcutta municipal Act, by N. Kundu, Prosecuting inspector, Corporation of Calcutta, the present case was started before the learned Municipal Magistrate, 3rd court, Calcutta against the accused M/s. Raja Katra Private Ltd. , for keeping open a private market at 57, Clive street, Calcutta without the requisite license for the year ending with the 31st march, 1957. The accused pleaded not guilty and the defense case, inter alia, is that the prosecution case is not maintainable; that it is barred by limitation; that no declaration as required under section 5 (42) of the Act was made; that no opportunity was afforded to the accused before the alleged declaration; that there has been no proper delegation on the part of the Commissioner; and that in any event the prosecution is premature because the declaration, though it related to the year 1956-57, was confirmed by the Mayor on 17. 6. 60. Two witnesses were examined on behalf of the Corporation of Calcutta and two on behalf of the defense, and besides that a considerable body of documentary evidence was adduced. As a result of the trial, the learned Municipal magistrate by his order dated the 22nd may, 1969 convicted and sentenced the accused as mentioned above. The said order has been impugned and forms the subject-matter of the present appeal.
(3.) THE submissions made by Mr. Sunil Kumar Basu, Advocate (with Mr. Puspamoy Das Gupta, Advocate)appearing on behalf of the Accused-Appellant, are of three dimensions. The first dimension relates to a non-conformance to procedure established by law and a denial of the principles of natural justice, ultimately vitiating the declaration made by the Corporation under section 5 (42) (b) of the Calcutta municipal Act, 1951. The steps of Mr. Basu's reasoning in this behalf are that such a declaration is necessary under the statute; that no notice or opportunity of being heard was given to the accused prior to the passing of the resolution, declaring the place concerned as a private market; and that, as a consequence, the declaration made under Section 5 (42) of the Calcutta municipal Act, 1951 has been bad in law and without jurisdiction, ruling cut the applicability of Section 451 (1) (a)read with section 537 of the West Bengal act XXXIII of 1951. Mr. Basu referred to several decisions to support his contentions and the same will be considered in the proper context. The second dimension of Mr. Basu's arguments is that even if the declaration was legally made, it was made much after the cause of action arose and the prosecution was launched, vitiating the same thereby. In this context Mr. Basu relied on exhibit "b", the declaration made by the mayor of Calcutta on the 17th June, 1960, and proved by D. W. 1 and he contended that while the prosecution was launched on the 20th June, 1957, the confirmation of the order of declaration was much belated, having been made on the 17th June, 1960, vitiating the ultimate prosecution launched, in the absence of such a declaration. The third and last dimension of Mr. Basu's contention is that the complaint filed by the Corporation of Calcutta is bad for a defective delegation (exhibit 14 ). Mr. Basu's submissions in this behalf, inter alia, are that the delegation mentioned in exhibit 14 is to the Deputy license Officer under Section 254 (1) of the Calcutta Municipal Act; that this being not a prosecution envisaged under section 254 (1), the delegation contained in exhibit 14 is bad and improper; and that in a proceeding launched on such a delegation, the penalty might have been under Section 541 or 585 of the Calcutta Municipal Act and not under Section 537 (1) inasmuch as the latter Section relates essentially to the charging section 451 (1) (a) of Act xxxiii of 1951.;