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Mannua v. Emperor

Allahabad High Court

Jun 23, 1919

Judgment

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Summary of Opinion

Factual and Procedural Background

The applicants are Mt. Batasu (also called Mt. Diptian) and her son Mannua, Ganga Putras, residents of Cawnpur. They were prosecuted under provisions of the United Provinces Municipal Act for using a plot of land as a timber storage yard without obtaining a licence from the Municipal Board of Cawnpur. The Municipal Board had made bye-laws under section 298 of the Act, which prohibit storage of wood within municipal limits except under a licence granted by the Board.

At their trial Mannua admitted that neither he nor his mother held a licence and that no formal application for a licence had been presented to the Board (he had sought one verbally from a Board Inspector who reportedly said one could not be obtained). During the trial he also presented a petition to the Joint Magistrate asking to be granted a licence.

The Joint Magistrate convicted the applicants and imposed fines of Rs. 50 on each (the practical maximum for a first conviction under the bye-law), aggregated as a total fine of Rs. 100 apportioned between the two. The applicants sought revision of that sentence, arguing it was excessive and that the Municipal Board had no right to refuse them a licence.

The background includes a long-standing dispute (dating back to 1914) between the applicants and the Municipal Board over the character of the land (the Board claiming it to be nazul land). Earlier proceedings suggested the Board could not maintain prosecution without resolving title in a civil court; in late 1918 the Board passed a resolution cancelling a lease said to be held by the applicants and resolved that no licence should be given them. The present criminal prosecution followed that resolution.

Legal Issues Presented

Whether the applicants were in breach of the Municipal Board's bye-law (S. 298) by storing wood without a licence and therefore liable to penal sanction.
Whether the Municipal Board lawfully and properly withheld a licence (including whether withholding could be used to pressure the applicants in a dispute over title), and whether such a refusal could amount to an abuse of power warranting court intervention.
Whether the sentence imposed by the trial Magistrate was excessive in the circumstances and ought to be reduced in revision.
What remedies and forum are appropriate where a person alleges wrongful refusal of a licence by a Municipal Board made under the bye-laws (including the roles of appeal under the Act and possible civil injunctive relief).

Arguments of the Parties

Applicants' Arguments

The bye-laws dealing with dangerous and offensive trades (under which the charge arose) must be read and interpreted as a whole and, when so interpreted, require the Municipal Board to grant a licence upon any properly framed application provided:
- The trade can be conducted on the site without danger or injury to the public.
- The applicant is prepared to abide by all prescribed conditions.
The Municipal Board had no right to pass the 20th November 1918 resolution refusing a licence; by refusing the licence in this dispute about title the Board was misusing its powers.
The sentence of Rs. 50 each was excessive and, in view of the equities, the Magistrate should have imposed a merely nominal penalty if he was compelled to convict of the technical breach.
The applicants relied on precedent (Emperor v. Balkishan) where a bye-law was found unreasonable and a conviction set aside as an abuse of power.

Municipal Board's Position (as reflected in the record)

The Board had made bye-laws under S. 298 prohibiting storage of wood except under licence; the applicants had no licence and had not made a formal application.
The Board claimed the land in question was nazul land and had previously taken steps (including a resolution) to cancel any lease and to refuse a licence for that site.
The record suggests the Board may have refused to grant a licence to avoid making admissions that could prejudice its position in subsequent civil litigation about title.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Emperor v. Balkishan	Illustrated that a conviction under a municipal bye-law may be set aside where the bye-law is unreasonable and its passing amounts to an abuse of power by the Municipal Board.	The Court acknowledged the case but held it could not govern the present matter entirely. The opinion used it to illustrate the Court's criminal-side jurisdiction to interfere where a bye-law is abused, but found the bye-law contravened in the present case to be reasonable and therefore not wholly analogous.

Court's Reasoning and Analysis

The Court began by accepting the factual admissions: Mannua (on behalf of himself and his mother) admitted lack of licence and absence of a formal application; he had only made a verbal request to an Inspector and had petitioned the Magistrate for a licence during trial. On that basis the applicants had committed at least a technical breach of a valid bye-law and were liable to punishment.
On sentence, the trial Magistrate had imposed what was effectively the maximum fine for a first offence; the Court considered whether, given the equities and history of the dispute, the fine was excessive and whether mitigation was warranted on revision.
The Court reviewed the historical context: a title dispute dating from 1914 in which the Board had earlier been held not entitled to prosecute without first bringing civil proceedings on title; a 1918 Board resolution cancelling a lease and resolving not to give a licence; and the present prosecution following that resolution. These facts raised the concern that the Board might be withholding licences to put pressure on the applicants in a title dispute.
The applicants' legal thesis that the bye-laws on dangerous and offensive trades must be read as a whole was accepted in principle by the Court: a Board would be “straining its authority” if it refused a licence, properly applied for, for reasons unconnected with public health, safety or convenience, and instead for the purpose of securing an advantage in a title dispute.
However, the Court found the specific bye-law contravened to be reasonable and held that the applicants were technically in the wrong because they had not made a formal application through the proper channel. The Court therefore declined to set aside the conviction on the ground that the bye-law itself was unreasonable.
The Court recognized competing considerations: the Board might have legitimate reasons to withhold a licence (e.g., to avoid admissions that would prejudice civil litigation). Given the materials available, the Court was not prepared to pronounce finally on whether the Board was abusing its power by withholding a licence in order to compel vacation of the site without litigating title in a competent civil forum.
The Court discussed remedies and limitations: under the United Provinces Municipalities Act 2 of 1916, the ordinary statutory remedy for disagreement with a bye-law under S. 298 would be by way of appeal to the higher authority in S. 318. But the Court did not close the door to the possibility that, in a case where a Board had refused a licence for reasons wholly unconnected with public safety, a civil suit for an injunction compelling grant of a licence might lie; it indicated uncertainty on this point and did not decide it finally.
On the criminal-side jurisdiction, the Court observed that it has power to interfere where there is an abuse of the Board's powers (as in the cited precedent), but concluded that on the present facts the appropriate course was to reduce the sentence rather than to quash the conviction entirely.

Holding and Implications

Core Ruling: The Court reduced the criminal sentence. The fine imposed by the trial Magistrate was reduced so that the applicants are now liable to a total fine of Rs. 10 (Rs. 5 each). Any balance of the previously imposed fine that has been paid will be refunded to the applicants.

Implications:

The conviction itself was not set aside; the Court found the bye-law reasonable and that the applicants committed a technical breach by not making a formal application for a licence.
The Court expressly warned the applicants that they must either submit to the bye-laws (i.e., remove their stock or comply) or take proper steps to have the title and licence question determined by a competent authority. The Court advised that the immediate step required of the applicants is to present a regular and formal application for a licence through the proper channel.
The Court indicated that a Municipal Board will exceed its authority if it refuses to grant a licence for reasons unrelated to public health, safety or convenience, and instead withholds a licence to gain an advantage in a title dispute; such conduct could attract judicial interference. Nevertheless, on the present materials the Court did not make a final determination that the Board had acted in that abusive way.
The Court noted the procedural/constitutional constraints under the United Provinces Municipalities Act 2 of 1916 (referring to Ss. 318 and 321) and that the ordinary remedy against a bye-law would be by appeal under the Act; it left unresolved whether a suit for injunction to compel grant of a licence might lie in certain circumstances where refusal is shown to be unrelated to public safety, health or convenience.
No broad new precedent was laid down; the direct effect is the reduction of sentence and the guidance given as to parties' further procedural options and the proper conduct expected of both applicants and the Municipal Board.

Order: Sentence reduced.

V.B/R.K

Show all summary ...

1. The applicants in this case are Mt. Batasu, also called Mt. Diptian and her son Mannua, Ganga Putras by caste, residents of Cawnpur. They were prosecuted under the provisions of the United Provinces Municipal Act for keeping a certain plot of ground as a place for the storing of wood, without having obtained a license for so doing from the Municipal Board. Now it is not denied that the Municipal Board of Cawnpur has made bye-laws under S. 298 of the aforesaid Act, which bye-laws contain amongst other prohibitions a prohibition against any land within Municipal limits being used for the storage of wood, except under a license granted by the Board and subject to the provisions of such license. The record before me shows that Mannua on behalf of himself and his mother admitted that they held no license for storing wood at the spot in question. He even admitted that they had not, up to the date on which he made his statement in Court, presented to the Municipal Board any formal application for a license. He said he had asked an Inspector in the service of the Municipal Board verbally for a license and had been told by the Inspector that he could not get one. At his trial he presented a petition to the Joint Magistrate before whom he was being tried, addressing the said Magistrate in his capacity of a member of the Municipal Board of Cawnpur, asking that he might be granted a license. On this state of facts, and apart from all other considerations, it is sufficiently obvious that Mt. Batasu and Mannua have committed at least a technical breach of a bye-law lawfully made by the Municipal Board of Cawnpur and are liable to punishment. This however, does not quite conclude the matter.

2. The sentence imposed by the trying Magistrate has been a fine of Rs. 50 on each of the two accused persons. This is practically the maximum penalty prescribed by the Municipal bye-law for a first conviction in respect of an offence of this sort, the fine imposed being nonetheless the maximum fine of Rs. 100 because it has been apportioned in equal shares between the two keepers of the timber-yard. Now it has been represented to me on behalf of Mt. Batasu and Mannua that the sentence imposed is in any case excessive and that in view of the case as a whole, the Joint Magistrate should even if he felt himself compelled to convict of a technical offence, have marked his sense of the equities of the case by imposing a merely nominal penalty. Now that the case has come before me in revision, I consider it incumbent on me to look into the matter from this point of view. The dispute between the applicants and the Municipal Board of Cawnpur goes back to the year 1914. It appears that in that year the Municipal Board came to the conclusion that the land on which the applicants were then and are now keeping a timber yard was Nazul land which could only be occupied on a lease or license granted by the Municipal Board. They took proceedings against these applicants for keeping a timber yard on Nazul land without the permission of the Board. The applicants replied that the land in question was not Nazul land, and that in any case it had been in the exclusive occupation for the purpose of a timber yard of the applicants and their predecessors-in-title for a period of more than fifty years. As a matter of fact the dispute in that case does not seem to have been directed specially to the question of any stock of timber on the land in question, but rather to the question of a but alleged to exist upon the said site. The Court trying the case came to the conclusion that the Municipal Board was not entitled to maintain such a prosecution without first instituting a suit in the civil Court and obtaining an adjudication on the question of disputed title to the land itself. Towards the end of the year 1918 the question of the use of the land in suit by these applicants seems to have come up once more before the Municipal Board, and a resolution was passed the terms of which have been laid before me. The Board resolved that the lease of Nazul land granted to Mt. Batasu and Mannua should be cancelled and that no license should be given them for storing wood on the land in question. The present prosecution has followed naturally on the passing of this resolution. The applicants contend that the Municipal Board is not within its legal rights in refusing to grant them a license. Their case is that the bye-law under which they have been prosecuted forms part of a series of bye-laws dealing with dangerous and offencive trades, the object of which is the safety of the public and the prevention of nuisances.

3. It is contended on their behalf that these bye-laws must be interpreted as a whole, and that, being so interpreted, they warrant the conclusion that the Municipal Board is under an obligation to grant a license under the said bye-laws upon any properly framed application, provided only they are satisfied that the trade in question can be carried on in the land for which license is sought without danger or injury to the public and that the person applying for a license is prepared to abide by all the prescribed conditions. I am asked to hold that if the present case be judged by these tests, the decision ought to be in favour of the applicants that the Municipal Board had no right to pass a resolution refusing to give them a license and that it is within the power of this Court to set aside a conviction, if it is satisfied that there has been a misuse of the powers conferred upon the Municipal Board by the Act which regulates and defines its powers. In this connexion I have been referred to the case of Emperor v. Balkishan (1) in which a learned Judge of this Court, in dealing with a conviction under the former Municipalities Act, 1900, went into the question of the reasonableness of a particular bye-law and set aside the conviction upon a finding that the bye-law in question was not reasonable and that its passing amounted to an abuse of power on the part of the Municipal Board. This decision cannot govern the case now before me in its entirety.

4. The bye-law which the applicants have contravened is in itself a very reasonable and proper one, and the applicants were technically in the wrong when they came before the Joint Magistrate's Court, because they had made no formal application to the Municipal Board for the grant of a license. I am still of opinion that, in spite of the Board's resolution of 20th November 1918, it is incumbent upon these applicants, unless they elect to submit to the orders of the Board and to remove their stock of wood from the site in question, to present through the proper channel a formal application for a license to the Municipal Board. Whatever resolution may have been passed by the said Board at a previous meeting upon an ex parte statement of the facts, it does not follow that a license would necessarily be refused after the applicants had laid their case fully before the Board. I am bound to observe however that the position of the Board in this matter is a peculiar one. They are claiming the site itself as against Mt. Batasu and Mannua. On the materials at present available to me I do not profess to understand the reference in the Board's resolution of 20th November 1918, to the cancellation of a lease said to be held by Mannua and his mother for the use of this land. For ought I know the Municipal Board may have been in possession of indisputable evidence that these applicants hold the land in suit as their lessees. In any case the papers before me show that the land in suit is claimed as nazul land on behalf of the Municipal Board and that this claim is being resisted by Mt. Batasu and Mannua.

5. The question is whether the Municipal Board is acting within its lawful rights in using its power of withholding a license so as to put pressure upon these applicants and compel them to vacate the disputed site, without the question of title being brought for determination before a competent Court. On the facts now before me I hesitate about pronouncing a final opinion on his point.

6. The Municipal Board may have adequate reasons for taking up the position that they would only be stultifying themselves, and making an admission which would be used against them in any subsequent civil litigation, if they were to grant these persons a license for storing wood on this particular site. I will not go further than to say that in my opinion the question would be one for careful consideration by the Municipal Board in the event of the matter coming before them upon a regular and formal application for a license made by Mt. Batasu or Mannua or both. I so far agree with the main argument which has been pressed upon me in support of this application that I think it is correct to say that the bye-laws on the subject of dangerous and offensive trades must be considered as a whole, and that a Municipal Board will be straining its authority if it refuses a license, properly applied for under any of these bye-laws, not on any grounds of public safety, health or convenience, but merely in order to secure an advantage to itself in a dispute about a question of title with another person. The jurisdiction of this Court to interfere on the criminal Bide has been sufficiently illustrated by the ruling which I have already referred to. It is beyond question also that, under the former Municipal Act, a suit would be maintainable for an injunction restraining a Municipal Board from interfering with the plaintiff's lawful exercise of his right to carry on a certain trade or employment upon a particular site, to the possession of which the said plaintiff had a clear title. Under the United Provinces Municipalities Act 2 of 1916 the jurisdiction of the civil Courts is limited by the provisions of Ss. 318 and 321 of the said Act.

7. I have no doubt that under these sections the only remedy of a person who considered himself aggrieved by a bye-law made under S. 298 of the Act, heading G (which is the heading dealing with offensive and dangerous trades), would be by way of appeal to the higher authority referred to in S. 318. But it is by no means equally clear that a suit would not lie for an injunction to compel a Municipal Board to grant the plaintiff a license for carrying on a particular trade upon a particular spot, provided always that the plaintiff was prepared to take out the license subject to all the conditions prescribed by the bye-laws and could satisfy the Court that the Municipal Board had refused him the license for reasons wholly unconnected with the public health, safety or convenience. I do not think I can profitably say anything further about this case as it stands. I reduce the sentence imposed upon Mt. Batasu and Mannua to one of a fine of Rs. 10 against the two of them or Rs. 5 each. The balance of the fine, if paid, will be refunded to the applicants. I leave it to the parties concerned to reconsider their position in the light of such remarks as I have thought it expedient to make. If the matter should unhappily come before this Court again, the point for consideration will undoubtedly be, which of the two parties has honestly and in good faith endeavored to put itself in the right. I must not be understood for a moment to have laid down that these applicants are entitled to persist in their present attitude of contumacious resistance to the Municipal bye-laws. They are bound either to submit to those bye-laws or to take pepper steps to bring the matter in dispute between themselves and the Municipal Board to the adjudication of a competent authority; and the first step which they must take, I have no doubt, is the presentation, through the proper channel, of a regular and formal application for a license for the storage of wood in the site in question.