N. C. Talukdar, J. - (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 defence 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 defence, 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 Aace 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 out 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 contexts. 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 tire 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, inasmuch as the latter Section relates essentially to the charging Section 451 (1) (a) of Act XXXIII of 1951. Mr. Prasun Chandra Ghose, Advocate, appearing on behalf of the Respondent, Corporation of Calcutta joined issue, and contended in the first instance that as the market concerned is a private one coming within the ambit of Sections 450 and 451 of the Act, and is clearly outside the purview of one defined under Section 5 (42) of the Calcutta Municipal Actace 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 out 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 contexts. 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 tire 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, inasmuch as the latter Section relates essentially to the charging Section 451 (1) (a) of Act XXXIII of 1951. Mr. Prasun Chandra Ghose, Advocate, appearing on behalf of the Respondent, Corporation of Calcutta joined issue, and contended in the first instance that as the market concerned is a private one coming within the ambit of Sections 450 and 451 of the Act, and is clearly outside the purview of one defined under Section 5 (42) of the Calcutta Municipal Act, 1951, such a declaration is not necessary. In this context the learned Advocate relied on some decisions which will be considered in their proper context. Mr. Ghose next contended in this behalf that a declaration, being unnecessary, there is no question of giving an opportunity to the accused of being heard and consequently there is neither any non-conformance to any procedure established by law nor any contravention of the principles of natural justice. Mr. Ghose submitted in this context that a declaration being unnecessary under the statute in the case of a prosecution relating to a private market, the declaration, ultimately made, though belatedly, would not render the prosecution defective. Mr. Ghose next contended that there has been no defective delegation as alleged or at all and Exhibit 14 is a complete answer thereto. Mr. Ghose's steps of reasoning in this behalf are that the delegation has been rightly made in the name of N. Kundu, Prosecution Inspector and the column concerned mentioned Section 254 (1); that Section 254 (1) refers not only to the procedure for issuing a notice of demand in the form laid down in Schedule VIII but also authorises the Commissioner to prosecute that delinquent concerned, if a prosecution otherwise lies under the provisions of the said Act; and that a prosecution under Section 451 (1) (a) read with Section 537 is a prosecution within the bounds of Section 254 (1) of the Calcutta Municipal Act, 1951. Mr. Sanat Kumar Rakshit, Advocate appearing on behalf of the State submitted that the order of conviction and sentence is bad because of the procedure adopted and because of the denial of the principles of natural justice but he contended nonetheless that the accused-persons should not be acquitted and the matter should ex debito justitae be remanded for a proper disposal of the case in accordance with law. This sums up the submissions advanced on behalf of the respective parties.;