DEBABRATA MOOKERJEE,J. - (1.) THE petitioner Corporation of Calcutta prosecuted the opposite party under Section 439 (5)/537 of the Calcutta Municipal Act 1951 for using certain premises in a forbidden area for purposes referred to in Section 437 of the Act.
(2.) THE opposite party was tried by a Municipal Magistrate upon the charge, who however by an order dated the 7th July 1955 acquitted him. The Corporation of Calcutta thereafter applied to this Court and obtained the present rule, which was issued to show cause why the acquittal should not be set aside and the opposite party retried in accordance with law. The facts shortly stated are that the opposite party carried on at No. 3 Raja Gopi Mohan Street the business of storing for sale 'Iron Scrap' in contravention of a notification issued by the Corporation of Calcutta dated the 26th July, 1951 under Section 387 of Calcutta Municipal Act of 1923. A sanitary inspector visited the place on the 31st March 1954 and found the petitioner carrying on business as aforestated. The case is that the opposite party having used the premises in contravention of the notification was liable to be punished under Section 439 (5) of the Calcutta Municipal Act, 1951.
(3.) THE petitioner pleaded innocence and his defence was that he had been permitted to carry on the trade as evidenced by the trade licences which had been issued in his favour from year to year including the year of the prosecution. It was said that the Corporation should not have prosecuted the opposite party after having realised the trade licence fees without any notice whatever calling upon him to show cause why he should not be prosecuted for contravention of the Act. A further defence was that iron scrap had not been stored but the premises were being used as a show -room for exhibition of samples of iron.;