THE CHAIRMAN OF THE BANKURA MUNICIPALITY versus LALJI RAJA AND SONS.

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we are not prepared to hold that the expression "workmen concerned in such dispute" can be limited M/s. New India Motors (P) Ltd. only to such of the workmen who are directly con- In our opinion, cerned with the dispute in question. that expression includes all workmen on whose behalf the dispute has been raised as well as those who would Ga;endrngadkar f. be bound by the award which may be made in the

v. R. T. Morris .

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said dispute.

It appears that the construction of the relevant clause had given rise to a divergence of opinion in industrial courts, but it may be stated that on the whole the consensus of opinion appears to be in favour of the construction which we are putting on the said In Eastern Plywood Manufaeturing Co. Ltd. v. clause. Eastern Plywood Manufacturing Workers' Union (1 ) the appellate tribunal has referred to the said conflict of views and has held that the narrow construction of the clause is not justified. The High Court of Madras appears to have taken the same view (Vide: N ewtone Studios.Ltd. v. Ethirajulu (T.R.) (')).On the other hand, in The New Jehangir Vakil Mills Ltd., Bhavnagar v. N. L. Vyas & Ors.('), the Bombay High Court has adopted the narrow construction ; but for reasons which we have already explained we must hold that the Bombay view is not justified on a fair and reason able construction of the relevant clause.

In the result the appeal fails and is dismissed with

costs.

Appeal dismissed.

THE CHAIRMAN OF THE BANKURA MUNICIPALITY v. LALJI RAJA AND SONS. ( K. C. DAs GUPTA and J. C. SHAH, JJ.)

Municipality-Unwholesome food-Seized 11nder warrant-If can be directed to be destroyed-Bengal Municipal Act, r932(Ben. Act. XV of.r932), ss. 430, 43r(2).

The respondents were the owners of an oil seed pressing factory situated within the limit of a·municipality. They used to import mustard seeds from different areas and they also held a (3) A.I.R. 1959 Born. 248· (1) (1952) L.A.C. rn3.

(2) (1958) I L.L.J. 63.

March 23.

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Bankura

licence for selling mustard seed. On a report of the Sanitary Inspector of the Municipality, the Sub-Divisional Officer issued a search warrant directing seizure of a large quantity of " rotten Chairman of the and decomposed mustard seed " from the possession of the res- pondents. The Chairman of the Municipality applied, to the MunicipalftY District Magistrate for action under s. 43r and s. 432 of the Bengal Municipal Act. The proceedings started on the petition Lalji Raja & Sons • of the Chairman of the Municipality had a chequered career. Ultimately the District Magistrate found that the mustard seed was unwholesome and unfit for human consumption on the date of seizure and directed, in exercise of the powers under s. 43r(2) of the Act, that the same be made over to the Commissioners of the Municipality for disposal either as manure or as cattle feed. The High Court in revision set aside the order of the District Magistrate holding that s. 43r of the Act under which the order was made did not apply to a case of seizure of unwholesome food under a warrant issued under s. 430. On appeal by the Munici- pality by special leave:

v,

Held, that the powers under s. 431(2) of the Bengal Munici pal Act (XV of r932), were expressly directed to be exercised by the Magistrate in respect of articles seized under s. 428, and there was nothing in s. 43r(2) which might justify the view that those powers could also be exercised in respect of articles seized under a warrant issued under s. 430.

CRIMINAL APPELLATE JURISDICTION: Criminal

Appeal No. 119 of 57.

Appeal by special leave from the judgment and order dated the 24th August, 1955, of the Calcutta High Court in Criminal Revision No. 596 of 1955. 0. B. Agarwala and Sukumar Ghose,

for the

appellant.

B. Sen and S.N. Mukherjee, for the respondents. 1960. March 23. The Judgment of the Court was

Shah J.

delivered by

SHAH, J.-M/s. Lalji Raja & Sons-who will herein- after be referred to as the respondents-are the owners of an oil seed pressing factory known as the Gouranga Oil Mill situated within the limits of the Bankura Municipality in the State of West Bengal. For extract- ing oil, the respondents import mustard seed from different areas. The respondents also hold a license for the sale of mustard seed.

On the application of the Sanitary Inspector of the Ba.nkura Municipality, the Sub-Divisional Officer, Ban kura, issued a search warrant directing seizure of 900 bags of "rotten and decomposed mustard seed", 600 bags stored in the mill godown and 300 bags stored

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v.

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Shah

1 ·

Chairman of the Bankur•

in the court-yard of the rice mill at Hanseswar l\faji. Pursuant to the search, a large quantity of mustard seed spread out for drying in the Gouranga Oil Mill Municipalily was seized, and certain bags lying in the rice mill were also seized. On the report made by the Sanitary Lalji Raja & Sons Inspector, the Chairman of the Municipality applied to the District Magistrate of Bankura on March 10, 1950, for action under ss. 431 and 432 of the Bengal Municipal Act, No. XV of 1932, alleging that the mus tard seed seized was " in a highly decomposed state and gave out an offensive stench" and that the same was unwholesome and unfit for human consumption. The proceedings started on the petition of the Chair man of the Municipality had a chequered career. It is unnecessary to set out for the purposes of this appeal the diverse orders which were made from time to time by the District Magistrate and which were set aside by the High Court of Judicature at Calcutta. It may be sufficient to state that on May 26, 1950, the District Magistrate ordered restoration of the mustard seed bags to the respondents and that order was set aside by a Division Bench of the Calcutta High Court in revision. Another order passed by the District Magi· strate in April 1951 directing that the contents of the bags be disposed of as " manure or fodder " was set aside by the Calcutta High Court and the proceedings were directed to be re-tried. The District Magistrate again held an enquiry and by his order dated Novem ber 10, 1954, held that the mustard seed was lawfully seized in accordance with the provisions of the Bengal Municipal Act, 1932, that it was unwholesome and unfit for human consumption on the date of seizure and directed in exercise of the powers under s. 431(2) of the Act that the same be made over to the Commis sioners of the Bankura Municipality for disposal either as manure or as cattle feed. The High Court at Calcutta by order dated August 24, 1955, in exer cise of its revisional jurisdiction, set aside the order of the District Magistrate holding thats. 431 of the Bengal Municipal Act under which the order was made, had no application to a case of seizure of unwholesome food seized under a warrant issued under s. 430.

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Against the order of the High Court, this appeal is filed with special leave.

The only question which falls to be determined in

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Chairman of the Bankura

this appeal is whether articles of food seized under a Municipality warrant issued by a Magistrate in exercise of the . powers under s. 430 of the Bengal Municipal Act may Lalji Raja & Sons be ordered to be destroyed under s. 431(2) of the Act;. In order to determine this question, it is necessary to , refer to certain provisions of the Bengal Municipal Act, 1932.

Sha;).

v.

.

Section 421 prohibits, amongst other acts, selling or storing for sale of unwholesome articles to be used for human _consumption. Section 427 (in so far as it is material) authorizes the Commissioners and certain other officers of a Municipality to enter upon and in spect any place in which any article of food is deposited for the purpose of sale or preparation for sale or to which any article of food intended for human con sumption is brought for such purpose, and also to inspect the articles of food which may be found in tlie place inspected. Clause (I) of s. 428 confers upon the Commissioners and the officers designated in s. 427 power to seize articles of food intended for human consumption if, in the course of inspection, it appears that the same are unwholesome or unfit for human consumption. Section 429 provides that the articles of food referred to in s. 428 which have been seized under that section may, with the written consent of the owner or the person in whose possession they are found, be ordered to be destroyed. If the consent of the owner or the person in possession is not obtaineq and the articles are of a perishable nature, the officer seizing the same may take them before a Magistrate who may, if it appears to him that the articles are unsound or unwholesome - or unfit as human food, condemn the same or ·order ~hem to be destroyed. Section 430 (in so far as it is material) provides that if any Magistrate is satisfied on the application of the Commissioners, Health Officer, Sanitary Inspector or any other officer authorized by the Commissioner in this behalf tliat there is just cause to believe that any food which is unsound, unwholesome or unfit for human food is in the possession of any person for the

362

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h

Shah ].

Chainnan of the Banhura Municipality v.

purpose of being sold or offered or exposed for sale within the limits of the Municipality for such consump- tion, e may grant a warrant authorizing entry upon the premises of such person and search for and seizure of such articles of food. Section 431 by the 1st sub- Lalji Raja.,,_ Sons section (in so far as it is material) provides that where any article of food, seized under s. 428 is not destroyed by consent under sub-s. 1 of s. 429 or when an article of food so seized which is perishable is not dealt with under sub-s. 2 of that section, it shall be taken before a Magistrate as soon as may be after such seizure. Sub-s. 2 provides that if it appears to the Magistrate that any such food is unsound, unwholesome or unfit for human food, he shall cause the same to be destroyed or to be otherwise disposed of by the Commissioners so as not to be capable of being used as human food. It is evident from this resume of the relevant legis lative provisions that the municipal authorities are entitled to enter upon and inspect places where articles of food are stored or prepared for sale. If the municipal authorities find that any article of food stored or prepared for sale is unwholesome or unfit for human food, they may seize them and destroy the same with the written consent of the owner or person in possession, and if such consent is not forthcoming and the articles are perishable, destroy them under the orders of a Magistrate. But s. 428 is not the only . procedure under the Act authorizing seizure of articles of food which are unwholesome or unfit for human food. The municipal authorities may move a Magi strate for the issue of a warrant for seizure of articles of food which are unsound, unwholesome or unfit for human food, and under the authority of the warrant, such articles may be seized.

Articles of food seized under s. 428(1) which are not disposed of unuer s. 429 are required to be taken before a Magistrate as soon as may be after seizure is and under sub-s. 2 of s. 431, authorized, if it appears to him that the articles of food are unsound or unwholesome or unfit for human food to order destruction or disposal thereof. Ev idently, the expression "such" used in sub-s .2 of s. 431 refers to the articles of food described in sub-s. 1 of

the Magistrate

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that section ; and s. 431(1) only deals with articles seized under s. 428. There is no express provision made by the legislature either in s. 431 or elsew ere in the Act authorizing destruction or disposal of Municipality articles of foqd which are seized under a warrant issued under S. 430.

Chairman of the Bankura

v. Lalji Raja & Sons

I96°

h

- Shah J.

Counsel for the Municipality contends that the legislature intended that _all articles seized, whether on inspection under s. 428 or under a warrant issued under s. 430 must be dealt with under s. 431 and the High Court was in error in holding that the authority of the Magistrate to order destruction or disposal of articles of food could be exercised only in respect of articles seized under s. 428. But the words used in s. 431(2) clearly authorize the Magistrate to order destruction or disposal of articles seized under s. 428 and not deaH with under s. 429, and it is difficult to uphold the plea that the legislature intended, even though it did not so expressly provide, that the articles seized under a warrant issued under s. 430 may also be dealt with under sub-s. 2 of s. 431. Counsel for the Munici- pality submits that it could not even have been the intention of the legislature that the Magistrate can order seizure of unwholesome food but cannot order its destruction, though he may order destruction of unwholesome articles of food seized by the officers of the Municipality. It appears, however, that a person storing unwholesome articles of food may be prosecuted for infraction of the provisions of s. 421 and in the course of or on the conclusion of those proceedings, it would certainly be open to the Magistrate, having seizin of the complaint, to pass an appropriate order under the Code of Criminal Procedure for destruction ofthe articles seized. In view of this, we are not prepared to say that the absence of an express provision relating to the disposal of articles seized under s. 430 is not deliberate ; but even if we are con- strained to hold that there is a lacuna ins. 431, we do not think that we would be justified contrary to the plain words used by the legislature, in attempting to remedy the same by holding that a Magistrate exercis- ing power under sub-s. 2 of s. 431 has authority to

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order destruction of articles seized in pursuance of a warrant issued under s. 430.

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Shah J.

Chairman of the Bankura 1~1 unicipality v.

The argument advanced by counsel for the Municipal- ity that the seizure was in exercise of the powers under s. 428 and not under s. 430 has, in our judgment, no Lalji Raja & San' force. The report of the Chairman of the Municipality dated March 10, 1950, makes it abundantly clear that the search warrant was issued by the Sub-Divisional Officer in exercise of his authority under s. 430 of the Bengal Municipal Act. Any admission by the res pondents that the seizure was under s. 428 of the Act in proceedings for resisting the order which the Municipality claimed to obtain against them can have no value.

Section 428 does not contemplate a seizure of articles of food which are unwholesome, under the authority of a Magistrate, and s. 430 is expressly the proviRion which authorises a Magistrate to issue a warrant, for such seizure. The powers under s. 431(2) are expressly directed to be exercised by the Magistrate in respect of articles seized under s. 428, and there is nothing in the former provision which may justify the view that those powers can also be exercised in respect of articles seized under a warrant issued under s. 430. In our opinion, the High Court was right in its conclusion.

The appeal therefore fails and is dismissed.

Appeal dismissed.

z960

March 23.

M/S. NORTH BROOK JUTE CO. LTD. AND ANOTHER v. THEIR WORKMEN (P. B. GAJENDRAGADKAR, K. N. WANCHOO and K. C. DAS GUPTA, JJ.)

Ind1tstrial Dispute-Rationalisation scheme objected to by work

nien~Scheme put into operation pending reference to Tribitnal~ Workmen's refusal to work-Lock-out-Claim for wages for the period of lock-out-Industrial Disputes Act, I947 (I4 of I947), ss. 3(2), 9A, 33, 33A.

A rationalisation scheme in the mills of the appellant com panies was agreed to by the Works Committee and a notice under s. 9A of the Industrial Disputes Act, 1947, was given to the