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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   The Bengal Municipal Act, 1932, also  stood  repealed qua the municipality of Howrah under s. 542 of the Act  from the  date of such extension.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Bengal Fire Service Act, 1950,  and  consequently, because of s. 38 of the Fire Services Act, s. 386 of the Act stood  repealed and the respondent was not required to  take out  another license under the said s. 386.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

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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

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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. 50 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

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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

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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

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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.