- (1.) THIS is a reference by the learned Sessions Judge of Ganganagar.
(2.) RAMKUMAR petitioner was challaned for breach of Bye-laws for the "regulation of Teh bazari traffic and other temporary occupation of land" for exposing merchandise for sale in a public street. The court imposed a fine of Rs. 2/- on 13th July, 1951, and directed him to remove his stall by 16th July, 1951, and in default to pay eight annas per day as further fine. Another notice was issued to him on the 15th July, 1951 by the Municipal Board to remove his stall. On his failure to do so, he was again challaned on the 26th July, 1951, and the District Magistrate of Ganganagar, by an order dated 20th September, 1951, imposed a fine of Rs. 50/- and directed him to remove his stall by 25th September, 19511 and in default to pay a further fine at the rate of Rs. 2/- per day. On revision, the learned Sessions Judge of Ganganagar has recommended that the conviction and fine imposed by the District Magistrate on 20th September, 1951, be set aside. The Bikaner State Municipal Act (No. VI of 1923) provided punishment with a fine extending to Rs. 50/- if any person after receiving notice from the Board did not remove articles of merchandise from a, street under sec. 118 of the Act. Section 135 of the Act authorised the Board, in making Bye-laws under chapter VII to direct that a breach, or an abetment of a breach of the Bye-laws shall be punishable with fine which may extend to Rs. 50/-, and when the breach is a continuing breach, with a further fine which may extend to Rs. 5/- for every day after the first during which the breach continues. The Teh bazari Bye-laws, which were approved by the Government on the 22nd March, 1937, provided penalty as under: - "in exercise of the powers conferred by sec. 135 of the Act the Board hereby directs that any breach of the provisions of the foregoing Bye-laws shall be punish-able with fine which may extend to fifty rupees and in the event of a continuing breach with a further fine which may extend to rupees five for every day after the date of first conviction during which the offender is proved to have persisted in the offence. " A comparison of this penal clause with sec. 135 shows that the direction made by the Board is not on the lines permitted by the section. When Ramkumar was first challaned he was awarded a fine of Rs. 2/- for breach of the Teh bazari Bye-law No. 1 and was also awarded a fine of eight annas per day during which the breach was to continue. This was in accordance with the provisions of sec. 135. If he did not vacate the land, the remedy of the Board, as pointed out by the learned Sessions Judge, was by an action under sub-section (2) of sec. 118 by removing the stall or causing it to be removed by the police. By a second challan on 26th July, 1951, he was being convicted a second time, for the same offence in as much as the sentence passed against him on the 13th July, 1951, already provided a fine of annas eight per day during which he continued to have his stall at the place. Having been once penalised for keeping the stall on a particular day, he could not be penalised again for same offence committed on the same day by a fresh prosecution. The reference is therefore accepted, the conviction by the District Magistrate made on 20th September, 1951, for an offence under Teh bazari Bye-law No. 1 is set aside, and the fine, if paid, will be refunded. .;