Bhupati Charan Bera vs President, Union Board, Nilkunthiya

Mitter, J.—This is a petition for quashing certain proceedings u/s 34(4) of the Bengal Village Self-Government Act. 1919, now pending against the petitioner in the Court of Sri A. S. Chatterji, Magistrate, 2nd Class, Tamluk. The petitioner is the proprietor of a husking mill, locally known as a "Bani Mill". The Union Beard of Nilkunthiya required him to take out a license for running the said mill. The fee for such a license was Rs. 100/- per year. The petitioner having declined to take out a license for the said mill for the year 1361 B.S., a complaint by the President of the Union was lodged against him u/s 34(4) of the Bengal Village Self-Government Act. The learned Sub-Divisional Officer of Tamluk took cognizance of the case and issued summons against the petitioner u/s 34(4) of the said Act.

The petitioner''s case is that a "Bani Mill" is merely a husking machine with a small crude oil engine and that he does not carry on any business of boiling rice. It is also his case that husking of paddy by itself cannot be regarded as an offensive or dangerous trade or business within the meaning of section 34 of the Bengal Village Self-Government Act, 1919. It is, lastly, the petitioner''s case that the notification by Government u/s 34 of the said Act, dated 2nd of July. 1927. did not declare husking of paddy to be a dangerous or offensive trade or business and that, accordingly, he was not liable to take out any license for his Bani Mill.

The opposite party''s contention, on the other hand, is that the said notification of 2nd July, 1927, did declare boiling as well as husking of paddy as offensive or dangerous trades. The learned Magistrate in his explanation has referred to Government Memo. No. L.S.G. 660|46|3L, dated 16th of May, 1946, for saying that the petitioner was liable to take out a license for husking of paddy.

In order to appreciate the point which calls for our decision, it is necessary to say that section 34 of the Act prohibits certain offensive and dangerous trade being carried on without licenses. Section 34, so far as it concerns the present controversy, is in the following terms :

(1) No place within a union shall be used without a license granted by the Union Board which shall be renewable annually for any trade or business declared by the Local Government by notification to be offensive or dangerous.

(2) In every notification under sub-section (1) the Local Government shall specify the maximum amount of fees which may be levied by a Union Board for a license in respect of any trade or business declared in such notification to be offensive or dangerous.

(3) Subject to the approval of the District Magistrate, the Union Board may levy in respect of any license granted by it under sub-section (1) a fee not exceeding the maximum amount specified under sub-section (2), and may impose such conditions in respect of such license as may be considered necessary.

(4) Whoever, in any Union, uses without a license any place for the purpose of any trade or business declared under sub-section (1) to be offensive or dangerous, or fails to comply with any condition subject to which a license is granted under that sub-section, shall be punished with a fine which may extend to twenty-five rupees, and to a further fine which may extend to five rupees for each day after conviction during which he continues so to offend.

It is clear that any notification under the Act declaring any trade or business to be offensive or dangerous is conclusive. We must, therefore, see whether by the notification of 2nd July, 1927, husking of paddy was declared to be either an offensive or dangerous trade or business. The notification of 2nd of July, 1927, being notification No. 2428 LSG. was in the following terms :

In exercise of the powers conferred by sub-sections (2) and (3) of section 34 of the Bengal Village Self-Government Act, 1919, (Bengal Act V of 1919) the Government of Bengal (Ministry of Local-Self Government) is pleased to declare the boiling and husking of paddy, the storage of hide and the slaughtering of cattle to be offensive trades or businesses in any Union to which the said section has been specially extended and to authorise the Union Board of such a Union to levy in respect of license which the Board may grant for the use of any place within the Union as a rice mill, hide godown or a slaughter house, a fee not exceeding that specified below, namely,

In case of rice mill, Rs. 100/- a year,

In case of hide godown, Rs. 20/- a. year,

In case of slaughter house, Rs. 5/- a year.

In his explanation the learned Magistrate has stated that the word "and" in "boiling and husking of paddy" should be used in a distributive sense and that therefore, boiling of paddy and husking of paddy would each be an offensive or dangerous trade or business. Having looked at the Government Memo, of 16th of May, 1946, referred to by the learned Magistrate, we are satisfied that it merely contains an expression of opinion on the part of the particular department of Government and cannot be regarded as an authority for interpreting the notification of 2nd of July, 1927, which was issued in exercise of the powers conferred upon Government by sub-sections (2) and (3) of section 34 of the Act. In our view, what was declared to be an offensive trade or business was the boiling and husking of paddy. In other words, mere boiling of paddy without it being husked or mere husking of paddy without the paddy being boiled, was outside the purview of the notification. That this was so is clear from the notification declaring three specific trades or businesses as offensive, namely, the boiling and husking of paddy, the storage of hide, and the slaughtering of cattle. Further, the notification authorises a Union Board to require a license in respect of any place used as a rice mill, a hide godown or a slaughter house. It is clear that mere boiling of paddy cannot be regarded as a rice mill. The three trades or businesses are specified in the notification as a rice mill, a hide go-down, and a slaughter house.

In our view, the notification concerned cannot authorise the opposite party to require a license for mere husking of paddy. We must, accordingly, hold that in the absence of evidence that the petitioner not only husks paddy but also boils paddy in his "Bani Mill", the present proceedings must be quashed. On the affidavits before us, we are satisfied that the petitioner does not boil paddy but merely husks paddy.

For the foregoing reasons, we must allow this petition and quash the proceedings. This Rule must, accordingly, be made absolute. This judgment governs the connected Revision Cases which are also allowed and the relative Rules made absolute.

Sen, J.

I agree.