Misra, J. - (1.) THIS is an application in revision which was originally filed by the Chairman, District Board, Cuttack, against the order of Sri K.V.K. Rao, Magistrate, 1st Class, acquitting the accused -opposite party of an offence under Section 100 -A(1) and (2) of the Bihar and Orissa Local Self Government (Orissa Amendment) Act 34 of 1947.
(2.) THE employer of the accused, a firm known as Kesharichand Ghewarchand had a godown for storage and sale of jute at three places viz. Danpur) Kendupatna and Marshaghai in the subdivision of Kendrapara. The accused -opposite party Paramananda Rath was the manager of the firm. The firm had taken out a licence for the purposes of carrying on trades and business specified in Section 100 -A(1) of the Act which expired on 31 -3 -51. Thereafter, it appears the firm did not take out any licence. It may be noted that the Bihar and Orissa Local Self -Government (Orissa Amendment) Act 34 of 1947, introduced a new chapter headed as "Chapter I -A" to the original Act. The description of the chapter is "Powers of District Boards in respect of Industries and Factories". Section 100 -A which was added to the original Act by Section 2 of the Amendment Act authorised the District Boards to notify that no place within such local limits as may be fixed by it shall be used without a licence granted by the Chairman of such Board and except in accordance with the conditions specified in such licence for anyone or more of the following purposes. In the instant case we are concerned with Clause (q) of Section 100 -A(1) which runs as follows "selling timber or storing it for sale, storing or selling coal, storing hay, straw wood, thatching grass, jute or other dangerously inflammable materials." Sub -section (7) of Section 100 -A of the said Act prescribes that - "A District Board may, subject to a maximum to be fixed by the Provincial Government, levy a fee in respect of any such licence and the renewal thereof and may impose such conditions and restrictions upon the grant of such licence as it may think necessary." It appears that there was a notification No. 36 - L.S.G. dated 5 -1 -49 issued by the Government of Orissa, fixing the maximum licence fees in respect of jute as follows Rs 5/ - for 100 bales, Rs. 10/ - for 500 bales, and Rs. 25/ - over 500 bales, vide Ext. 8. Subsequently, it appears there was a notification No. 3135 - L.S.G. dated 25 -4 -51 fixing the maximum licence fee for jute at one anna per maund. The District Board adopted this rate of licence fee at its meeting dated 28 -7 -51, and published a notice in the Samaj dated 8 -8 -51 to the effect that licence fee for jute would be realised at the said rate with effect from 1 -4 -51. The accused opposite -party did not agree to pay the licence fee at the new rate and did not take out a licence after the expiry of his previous licence on 31 -3 -51. In a letter, Ext -5 dated 10 -9 -52 the advocate for the firm Kesharichand and Ghewarchand said that his client was not liable to pay the licence fee at more than Rs. 250/ - per year, as the demand for licence fee at the new rate was hit by Article 276 of the Constitution of India. He made it clear that the firm was prepared to take out a licence but the demand of the licence fee at one anna per maund of jute was illegal and contrary to the Constitution. Thereupon the Chairman of the District Board passed an order sanctioning the prosecution of the accused.
(3.) THE learned Magistrate who tried the case came to the conclusion that the licence fee at the rate of one anna per maund of jute per annum was a tax, and was therefore hit by Article 276(2) of the Constitution. As the payment of the licence fee was a condition precedent to the grant of the licence, the learned Magistrate held that the accused was justified in not taking out a licence by agreeing to the payment of the illegal demand made on behalf of the District Board at a rate not sanctioned by Article 276(2) of the Constitution. The Magistrate further pointed out that accused -firm was all along ready and willing to take out a licence on payment of the maximum fee of Rs. 250/ -sanctioned by the Constitution under Article 276(2). In this view of the matter, the learned Magistrate held that the accused did not commit any offence by refusing to take the licence under the circumstances of the case and as such he acquitted the accused.;