PETITIONER: CHAIRMAN OF THE MUNICIPAL COMMISSIONERS OF HOWRAH Vs. RESPONDENT: SHALIMAR WOOD PRODUCTS & ANOTHER. DATE OF JUDGMENT: 26/03/1962 BENCH: KAPUR, J.L. BENCH: KAPUR, J.L. GUPTA, K.C. DAS DAYAL, RAGHUBAR CITATION: 1962 AIR 1691 1963 SCR (1) 47 ACT: Municipality-Business premises within municipal limits Whole of premises licensed as warehouse under Fire Prevention Scheme-Power of Municipality to require a license-West Bengal Fire Services Act, 1950 (W. B. 18 of 1950) Bengal Municipal Act, 1932 (Ben. 15 of 1932), s. 370-Calcutta Municipal Act, 1923 (Ben. III of 1923) s. 330 (1) (b), 488, 540, 541, 542. HEADNOTE: The respondent company was prosecuted for using the premises within the Municipality of Howrah without a license as required under s. 386 of the Calcutta Municipal Act 1923, as extended to the Municipality of Howrah by Notification No. 260 M dated January 'A 8, 1932, under ss. 540 and 541 of the Act. The Bengal Municipal Act, 1932, also stood repealed qua the municipality of Howrah under s. 542 of the Act from the date of such extension. The defence of the respondent was that the premises had been licensed as a warehouse under the West Bengal Fire Service Act, 1950, and consequently, because of s. 38 of the Fire Services Act, s. 386 of the Act stood repealed and the respondent was not required to take out another license under the said s. 386. The respondent was however convicted under s. 488 of the Act. In appeal the Sessions Judge reduced the sentence and fine. The appellant took a revision to the High Court. The High Court held inter-alia that s. 38 of the Fire Service Act was applicable to the Howrah Municipality. Therefore, while it may be necessary to take out a license under s. 386 (1) of the Act, no part of the premises would be liable for any charge of fees for granting a license. The appellant came up in appeal by special leave to the Supreme Court. Held, that the effect of extension of s. 386 of the Calcutta Municipal Act, 1923, by notification No. 260 M dated .January 18, 1932, under s. 540 and s. 541 of the Act, to the Municipality of Howrah is that an amended Act with s. 386 is applicable to the Municipality of Howrah and not s. 386 of the Calcutta Municipal Act, 1923. Although s. 38 of the West Bengal Fire Services' Act extends to the whole of Bengal and to the extent there set it, repeal s. 386 of the calcutta Municipal Act which 48 applies to the Corporation of Calcutta and s. 370 of the Bengal Municipal Act which applies to the other Municipalities of Bengal yet it does not affect the operation of s. 386 of the former Act as modified and extended to the Municipality of Howrah by the notification. The language of s. 386 has been modified to make it appropriate in its application to the Municipality of Howrah and for that purpose in place of the word 'corporation' the word 'commissioners' has been substituted. Thus modified it is not s. 386 of the Calcutta Municipal Act but a different section. Therefore what s. 38 of the West Bengal Fire Services Act repeals in s. 386 of the Calcutta Muncipal Act and not s. 386 of that as modified and applied to the Municipality of Howrah. Secretary of State for India v. Hindusthan Co- operative Insurance Society, (1931) L. R. 59 1. A. 259, referred to. JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 240 of
1959.
Appeal by special leave from the judgment and order dated
July 15, 1959, of the Calcutta High Court in Criminal
Revision No. 135 of 1959.
S. C. Mazumdar, for the appellant.
Sukumar Ghose, for the respondent No. 1.
1962. March 26. The Judgment of the Court was delivered by
KAPUR, J.-This is an appeal against the judgment and order
of the High Court of Calcutta passed in revision against the
order of the Additional Session,% Judge, Howrah, who had
modified the order of conviction of the respondents under s.
488 read with a. 386(1)(b) of the Calcutta Municipal Act
(Act III of 1923) as extended to the Municipality of Howrah,
hereinafter called the ‘Act’. The appellant before us is
the Chairman of the Municipal Committee of Howrah who is the
complainant and the respondent is a company with its
premises at No. 1 Swarnamoyee Road, where it was carrying on
the manufacture of bobbins, card pine, shuttles etc. They
were also storing their wood and timer in those premises.
49
The charge against the respondent was that it was using the
premises within the municipality of Howrah without a license
as required under s. 386 of the Act and was therefore guilty
under s. 488 of the Act. The defence of the respondent was
that the premises had been licensed as a warehouse under the
West Bengal Fire Services Act, 1950 (Act 18 of 1950) and
consequently because of s. 38 of that Act, s. 386 of the Act
stood repealed and the respondent was not required to take
out another license under, s. 386 of the Act. The
Magistrate, before whom the case was tried, was of the
opinion that the effect of a. 38 of the West Bengal Fire
Services Act was that the power of the Municipality to
require a license under a. 386 of the Act for user as a
warehouse had been taken away and therefore in respect of
the rest of the premises used as a factory or for other
purposes the applicability of s. 386 remains unimpaired. He
found that the respondent was running a factory with
workshops fitted with electric power in the premises for the
manufacture of bobbins, card pins, shuttles etc. He
convicted the respondent under s. 488 and sentenced him to a
fine of Rs. 250. In appeal the learned Additional Sessions
Judge held that s. 38 of the West Bengal Fire Services Act
does not repeal all the three clauses of s. 386 of the Act
but partially repeals a. 386(3) which deals with the levy of
fees and therefore a license under s. 386(1) will still have
to be taken but as the premises had al. ready been licensed
as a warehouse the respondent company could not be required
to pay any fees under a. 386(3) of the Act. The object,
according to the learned Sessions Judge, was that the levy
of fees twice over in respect of the same premises was
prohibited and not that the license was not required. The
sentence of fine was therefore reduced from Rs. 250 to Rs.
10 only. Against this order the appellant took a revision
to the High Court.
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The High Court held that where the premises are licensed as
a warehouse under the Fire Services Act but a portion of it
is used as a workshop the Municipal Committee has no. longer
the power to levy any fees for granting the license in
respect of the premises even though there may be a liability
to take out a license i.e. while it may be necessary to take
out a license under s. 386(1) of the Act no fees could be
charged and as the whole of the premises in case had been
licensed as a warehouse under the West Bengal Fire Services
Act no part of the premises would be liable for any charge
of fees for granting a license.
A further argument was also raised for the appellant in the
High Court and that was that a. 38 of the West Bengal Fire
Services Act did not apply to the Howrah Municipality at all
because the Howrah Municipality is governed neither by the
Calcutta Municipal Act nor by the Bengal Municipal Act but
by the Calcutta Municipal Act as extended to Howrah i. e. as
modified in accordance with the powers conferred on the
Government by s. 541(2) of the Calcutta Municipal Act. But
the High Court was of the opinion that a. 38 of the West
Bengal Fire Services Act is applicable to the Howrah
Municipality and there. fore repelled this last argument.
The revision was therefore dismissed, and the rule was
discharged. Against that order the appellant has come in
appeal by special leave.
The main argument raised by the appellant was that s. 38 of
the West Bengal Fire Services Act could not affect the
operation of s. 386 of the Calcutta Municipal Act as it was
extended to the Howrah Municipality. Section 38 of the
former Act reads as under:-
“On the application of this Act to Calcutta or
any other Municipality, section
51
38 6 of the Calcutta Municipal Act, 1923, or
section 370 of the Bengal Municipal Act, 1932,
as the case may be, shall be deemed to be
repealed in so far as they entitle the Corpo-
ration of Calcutta or the Commissioners of the
Municipality to levy fees in respect of any
premises or part thereof licensed as a
warehouse under this Act”.
It was contended that s. 38 of that Act does not repeal s.
386 of the Act because the interpretation of that section is
that it repeals s. 386 of the Calcutta Municipal Act 1923
which entitles the Corporation of Calcutta to levy fees and
s. 370 of the Bengal Municipal Act, 1932 which entitles the
Commissioners of other Municipalities to levy fees in
respect of any premises licensed as a warehouse; in other
words the argument was that in the case of Corporation of
Calcutta s. 386 of the Act shall be deemed to be repealed to
the extent mentioned in s. 38 and in the case of other
Municipalities and the Commissioners of those Municipalities
s.370 of the Bengal Municipal Act. 1932 shall be deemed to
be repealed to the extent that, s.38 is applicable and as
Howrah Municipality is neither the Corporation of Calcutta
nor is it governed by s. 370 of the Bengal Municipal Act, s.
38 is inoperative.
To test the correctness of this argument it is necessary to
refer to the provisions by which the Act was extended to the
Municipality of Howrah. Under so. 540 and 541 of the
Calcutta Municipal Act the Provincial Government was
empowered to extend all or any of the provision of that Act
to the Municipality of Howrah. Under s. 542 the effect of
the extension was that the Bengal Municipal Act 1932 stood
repealed qua the Municipality of Howrah from the date of
such extension and sub-cl. (b) of that section
provides:-
“Except as the Provincial Government may
otherwise by notification in the Official
52
Gazette direct, all rules, by-laws,
orders, directions and powers made, issued or
conferred under the portions of this Act which
have been so extended and in force at the date
of such extension, shall apply to the said
municipality or part, in Supersession of all
corresponding rules, by-laws, orders,
directions and powers made, issued or
conferred under the said Bengal Municipal Act,
1932″
and by an explanation to that section the extension of the
Act did not put the Municipality of Howrah tinder the
authority of the Corporation of Calcutta. By a Gazette
Notification NO. 260M of January 18, 1932 practically the
whole of the Act, excepting the provisions which are not
necessary, was extended to the Municipality of Howrah. The
language extending the Act was as follows:-
“Howrah.-No. 260M.-18th January 1932-In
exercise of the power conferred by sub-section
(2) of section 541 of the Calcutta Municipal
Act, 1923 (Bengal Act III of 19-3). the
Government of Bengal (Ministry of Local Self-
Government) are pleased to extend to the
Municipality of Howrah the following pro-
visions of the Calcutta Municipal Act 1923,
subject to the modifications and restrictions
specified therein which are ‘shown in antique
type.
As a result of this extension s. 386 was extended to the
Municipality of Howrah with this modification that in place
of the word “Corporation of Calcutta’ the word
“Commissioners” was substituted. In 1951 the Calcutta
Municipal Act 1951 being West Bengal Act 33 of 1951 was
enacted thus replacing Act 3 of 1923 which was therefore
repealed. In the new Act corresponding provision to ss.
540, 541 and 542 are ss. 589, 590 and 591. Section 614 of
the new Act provides that the provisions of Act III of 1923
as extended to the Municipality of Howrah shall continue to
be in force until the provisions of the new
53
Act are extended to that Municipality under the new Act.
Thus the effect of the extension by the Notification under
ss. 540 and 541 of the Calcutta Municipal Act is that to the
Municipality of Howrah an amended Act with an amended s. 386
is applicable and not s. 386 of the Act III of 1923.
Keeping this in view we have then to see how far s. 38 of
the West Bengal Fire Services Act 1950 (Act 18 of 1950) has
affected the operation of s. 386 as it applies to the
Municipality of Howrah. Section 38 provides that section
repeals s. 386 of the Act III of 1925 to the extent therein
mentioned. It also repeals s. 370 of the Bengal Municipal
Act as it applies to the Commissioners of Municipalities in
Bengal. It does not apply to s. 386 as modified and is
inapplicable to the Municipality of Howrah because in s. 386
as applicable to the Corporation of Calcutta the word used
is “,Corporation” and not “Commissioners” and wherever the
word “Corporation” is used in s. 386 it is replaced by the
word “Commissioners” in s. 386 as it applies to the Howrah.
Municipality. It cannot be said therefore that s. 38
repeals s. 386 of the Act III of 1923 as it applies to the
Howrah Municipality.
In a somewhat similar case a similar view was taken by the
Privy Council. See Secretary of State for India v.
Hindusthan Co-operative lnsurance Society (1). In that case
certain provisions of the Land Acquisition Act were
incorporated by reference Into the Calcutta Improvement Act
1911. By an amendment of 1921 the right of appeal to the
Privy Council from the decision of the High Court was
provided in matters failing under the Land Acquisition Act.
It was held that the right of appeal so given was not
applicable to the award of a tribunal under the Calcutta
Improvement Act assessing compensation in respect of land
acquired under the provisions of the. Land Acquisition Act.
Dealing with this matter Sir George Lowndes quoted with
(1) (1931) L.R. 58 1.A. 259.
54
approval the observations of Lord Westbury in Ex parts St.
Sepulchre’s (1) and observed:
“It seems to be no less logical to hold that
where certain provisions from an existing Act
have been incorporated into a subsequent Act,
no addition to the former Act, which is not
expressly made applicable to the subsequent
Act, can be deemed to be incorporated in it,
at all events if it is possible for the
subsequent Act to function effectually without
the addition”.
Although a. 38 of the West Bengal Fire Services Act extends
to the whole of Bengal and to the extent there set out it
repeals s. 386 of the Calcutta Municipal Act which applies
to the Corporation of Calcutta and s. 370 which applies to
the other Municipalities of Bengal yet it does not affect
the operation of s. 386 of the former Act as modified and
extended to the Municipality of Howrah by the notification
which has been set out above. The reason for that is that
the language of s. 386 has been modified to make it
appropriate in its application to the Municipality of Howrah
and for that purpose in place of the word `corporation ‘ the
word “‘Commissioners” has been substituted. Thus modified
it is not a. 386 of the Calcutta Municipal Act but a
different section. Therefore what s.38 of the West Bengal
Fire Services Act repeals is s. 386 of the Calcutta
Municipal Act and not s. 386 of that as modified and applied
to the Municipality of Howrah. It may look rather anomalous
but that is what the effect of the modification of the
language is. In our opinion therefore the contention of the
appellant is well founded ‘and s. 38 of the West Bengal Fire
Services Act does not repeal s. 386 as modified and as
applicable to the Municipality of Howrah. From the point of
view of the respondent the result may be unfortunate
(1) (1869) 33 L.J. (Ch.) 372, 376.
55
but that is the interpretation of the language of the
various sections which are relevant in the present case.
We therefore allow the appeal, set aside the order of the
High Court and convict the respondent of the offenses
charged, but in view of the fact that the appellant succeeds
on a question of interpretation we do not think it necessary
to increase the sentence of fine imposed by the learned
Sessions Judge, The, appeal is allowed to that extent.
Appeal allowed.