In Re: M. Murtuzali Sahib

Horwill, J.—The petitioner has long been in possession of an old cart-stand which contained none of the modern hygienic devices for rendering it sanitary. On 20th March, 1940, he applied to the executive authority of the Municipality of Madura to renew his licence for the year

1940-41. No orders were passed on his application until 4th December, 1940, when he was granted a licence subject to certain conditions. This licence with conditions imposed reached him on 18th January, 1941. He did not comply with these conditions, and so prosecution was launched on 19th March, 1941. The Stationary Second Class Magistrate considered that he was guilty of a failure to observe the terms of the licence and was therefore punishable u/s 338 of the District Municipalities Act. In appeal, it was urged on behalf of the petitioner that no notice was given to him as is required u/s 338, and that therefore he could not be punished. The City First Glass Magistrate held that Section 338 did not apply; for he had failed to comply with the requirements of Section 270-E, which relates to the issuing of a licence by the Municipality and that therefore he was guilty u/s 313 of contravening a provision of the sections specified in the first column of Schedule VII. He therefore changed the conviction to one

u/s 313 and maintained the fine.

Section 270-E does not impose any duty on private persons, except that it says that no person shall open a new private cart-stand or continue

to keep open such a stand unless licenced to do so. In Clause (2) the method of making the application is set out. Sub-section (3) imposes an

obligation, not on the owner of a cart-stand but upon the Council, to issue a licence in the case of an old cart-stand such as we are here

considering. The petitioner did take out a licence; but he failed to comply with the terms thereof. In failing to do so, he did not contravene any of the provisions of Section 270-E. I do not think that it can be said that the licence was a conditional one in the sense that unless and until the conditions were complied with no licence existed. If that were the interpretation of Clause (3), then it would not be easy to understand the other provisions of the Act which make punishable the contravention of conditions of a licence.

It follows that the learned trial Magistrate was right in holding that the offence was one punishable u/s 338 of the'' Act. As no notice was given to

the petitioner as required u/s 338, he could not be convicted. It may be added that the delay of the local authority in issuing the licence seems

inexcusable.

The petition is therefore allowed, the conviction set aside, and the fine ordered to be refunded.