CHAIRMAN OF THE MUNICIPAL COMMISSIONERS OF HOWRAH versus SHALIMAR WOOD PRODUCTS & ANOTHER.

19111

March 26

' 1 s.d.R.

SUPREME OOURT REPOR'l4S

47

CHAIRMAN OF THE MUNICIPAL COM MISSIONERS OF HOWRAH v. SHALTMAR WOOD PRODUCTS & ANOTHER. (J. L. KAPUR, K. C. DASS GUPTA a.nd RAGHUBAR DAYAL, JJ,)

Municipality-BuBinesB premises within municipal limitB W/1ole of premisell licenaed aB warehouse under Fire Prevention Scheme-Power of Municipality to require a license-West Bengal Fire Services Act, J[Jlj0 (W. B. 18 o.f 1950) -Bengal Municipal Act, 1932 (Ben. 15 of 1932), s. 370-0alcutta Municipal Act, 1923 (Ben. Ill of 192.~) s. 330 (I) (b), 488, 540, 541, 542.

The respondent company was prosecuted for using the ·. premises within the Municipality of Howrah without a liceme as required under s. 386 of the Calcutta Municipal Act 1923, as extended to ~he Municipality of Howrah by Notification No. 260 M dated January 18, 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 The Bengal Municipal Act, 1932, also stood repealed qua the municipality of Howrah under s. 542 of the Act from the date of such extention. 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Bengal Fire Service Act, 1950, and consequently, because of s. 38 of the Fire Services Act, s. 386 of the Act stood repealed and the respondent was not required to take out another license under the said s. 386.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 Mtmicipality. Therefore, while it may be neces sary 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.

HeM, 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 386 of the Calcutta Municipal Act which t,

it re?e:il; s.

1

•

1962

Chairman of,,,. Mrmi;ipnl Commis.siontr1 of Howrah v. S h•limtw Wood Produds

Kapur J,

48

SUPREME COURT REPORTS [1963)

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 Muni cipality of Howrah and for that purpose in place of the word 'corporation' the word 'commissioners' has been substituted. Thus modified it is nots. 386 of the Calcutta Municipal Act hut a different section. Therefore what s. 38 of the West Bengal Fire Services Act repeals in s. 386 of the Calcutta Municipal Act and not s. 386 of that as modified and applied to the Municipality of Howrah.

Secretary of State for India v. Hindusthan Oo- operative

Insurance Society, (1931) L. R. 59 I. A. 259, referred to.

CRIMINAL Al'l'ELJ,A'l'E J URISDIC'l"ION: C1·iminal

Appo;d No. 240of195!J.

Appeal by speoial leave from the judgment and order dated July 15, 1959, of the Calcutta High Court in Criminal Revision No. 135 of 1959.

S. C. Maz·umdar, for the appellant. Sukumar Ghose, for the respondent No. I. 1962. March 26. The Judgment of the Court

was delivered by

Kuu.R, J .-This is an appeal against the judgment and order of the High Court of Calcutta passed in revision 11.gainst the order of the Addi tional SeBBions Judge, Howrah, who had modified the order of conviction of the respondents under s. 488 read with s. 386(l)(b) of the Calcutta Muni cipal Act (Act III of 11123) as extended to the Municipality of Howrah, hereinafter called the 'Act'. The u.ppellant 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 whel'e it was rnurying on the manufacture of bobb'. ins, card pine, shuttles etc, They wtire also storing their wood and timber in those . premises.

J

1962

0 airman of Me Municipal Commissioners •f ... Howrah

Shalimar Wocd Products

Kapur J

1 S.C.R ..

SUPREME COURT REPORTS

the

The charge against

reapondent was that it was using the pre'llises within the municip ality 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 res pondent was that the premises had been licensed as a warehouse under the West Bengal Fire Services Act, 1950 (Act 18 of 1950) and consequ ently because of s. 38 of that Act, s. 386 of the Act stood repeall)d and the respondent was not requir ed to take out a.not·her license under s. 386 of the Act. The Magistrate, before whom the case was tried, was of the opinion that the effect @f s. 38 of the West Bengal Jnre ServiceM Act was that the po:wor of t.he Municipality to require a license under s. 386 of the Act for uBer as a warehouse had been ta.ken 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 fitted with running a factory with workshops electric power .in the manu facture of bobbins, card pins, shuttles etc. He oonvicted the respondent under s. 488 and sent enced him to a fine of Rs. 250. In appeal the learn ed 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 parti ally repeals s. 386( 3) which deals with the levy of fees and therefore a license under s. 386( 1) wilJ still have to be taken but as the premises had al ready been licensed as a wa.rehouse the respondent company could not be required t9 pay any fees under s. 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 requi red. The sentence of fine was therefore reduced from H.s. 250 to Rs. 10 only. Against this order the appellant took a revision to-the High Court.

the premises for

• ' \

JY62

Chairman of the Municipal Commissioners' of JJowroh v. Shalimar Wood hod«< ..

1..·apur J,

50

SUPREME COURT REPORTS [1963]

The High Court held that where the premises are licensed as a warehouse under the Fire Ser vices 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 he a liability to take out a license i.e. while it may be necessary license under s. 386( 1) of the Aot to take out a 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 o:( the premises would be liable for any charge o1 fees for granting a license.

that was

A further argument was also raised for

the that appellant in the High Court and s. 38 of the West Bengal l!'ire 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 B~ngal 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 s. 38 of the West Bengal Fire Services Act is applioable to the Howrah Municipality and there· fore repelled this last argument. The revision was iherefore dismissed, and the rule was dischar ged. Against that order the appellant has come in appeal by special leave.

The main argwnent raised by the appellant was thats. 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 readM as under:-

"0n the application of

this Act to Calcutta or any other Municipality, section

I S.C. ·g.

SUPREME COURT RE.POR'rS

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 a.s they entitle the Corpo ration of Calcutta or the Commissioners of t.he Municipality to levy fees in respect of any premises , or part licensed as a warehouse under this Act''.

thereof

Chairman of the Municipal Commission"s of Howrah v. Shaiimar Wood

Producls

Kapur J,

' -

It was contendea that 9. 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 Cal cutta Municipal Act 1923 which entitles the Corpor ation of Calcutta to levy fees and s. 370 of the Ben~al Municipal Aot, 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 tho case of other Municipalities and the Commissioners of those Municipalities s.370 pf the Bengal Municipal Aot. 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 the provisions by to it is necessary ,to refer which the Act was extended to the Municipality of Howrah. Under ss. 540 and 541 of the Calcutta Municipal Act the Provincial Government was empoweredto extend all or any of the provision of that A~t to the Municipality of Howr~h. Under s. 542 the eifect of the extension was the Bengal Municipal Act 1932 stoo~ that re ~caled qua the Municipality of Howrah the date of such extension and sub-cl. from (b) of that seotiqn provides:-

' 'Except as the Provincial Government may otherwise by notification in the Official

1962

Cha~rman of Uu Mrmieipal CQhuni#iottef'.r of Howrah v.

jAa/imat Wood Produ&ls

Kapur J,

52

SUPREME OO~T REPORTS (1963J

Gazette direct, all rules, by-laws, orders,_ direc tions and powers made, i1sued or ·c~mferred 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 munici· pality or part, in ~upersession of all coll'cs ponding rules, by-laws, orders, directions and powers made, issued or conferred under the said Bengal Municipal Act, 1932"

a.nd by an explanation to that section the extension of the Act did not put the Municipality of Howrah under the authority of the Corporation of Calcutta. By a Gazette Notification No. 260M of January J 8,. l!Ja2 practically the wholo of the Act, excepting t'h~ provisions which are not necessary, wa1:1 extended to the Municipality of How1·ah. The language extend ing 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 rn-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 "Commissi.oners" 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 uorresponding provision to ss. 540, 541 and 542 are 1:1s. 589, 590 and 591. Section 614 of the new Act provides that the provisions of Act III of 1923 as extended to the M1micipality of Howrah shall con tinue to be in force until the provisions of the new

1961

Cliairman .of lh1 Municipal Commi11ioners of Howra v. Shalimar WooJ Products

Kapur.I.

I S.C.R.

SUPREME COURT REPORTS

53

Act a.re extended to that Municipality under the new Act. Thus the effect of the extension by the Notification under ss. 540 and 54 l of the Caloutta Municipal Act is that to the Municipality of Howrah an amended Act with an amended s. 386 is applica ble and nots. 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 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 be cause in s. 386 as applicable to the Corporation of Calcutta the word used is ''Corporation" and not "Commissioners" and wherever th,e word "Corpora tion" is used ins . 386 it is replaced by the word . ''Commissioners~' in s. 386 as it applies to the Howrah Municipality. It Qannot 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. Reo 8ecrcta1'?J o.f State for India v. Hindusthan Co-operative bumrancc Rer:iety( 1 ). that case certain provisiolls of the Land In Acquisition Act were incorporated by reference into the Calcutta Improvement Act 1911. By an amend ment of 1921 the right of appeal to the Privy Council from the decision of the High Court was provided in matters falling under the Lf-1n<l Acquisi !ft was held that the right of appeal so tion Act. given was not applicable to the award of a tribunal under the Calcutta Improvement Act assessing eompensation in respeQt of land acquil'r.d under the provisions of t.he .La11d Acquisition Act.. Dealing with thiR ·matter Sir Georg('! Lowndes quoted with

(I)

(1931) L.R. 53 LA. 259.

lfJ62

Chairman of lhe Munitipal Commissiot11Ts of HoWrah v. Shalimar Wood Protluets

Kapur J.

54

SUPREME COURT REPORTS (1962]

approval the observations of Lord Westbury in Ex parte St. Sepulchre's (1

) and observed:-

"It seems to be no less logical to hold that where certain provisions from an existing Aot have been incorporated into a subsequent Act, no addition to the former Aot, which is not expressly made applicable to the subse quent 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".

that purpose

Although s. 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 to the Calcutta Municipal Act which applies 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 the Municipality of modified and extended to 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 to the Municipality of Howrah its application in place of the word for an<l 'Corporation" the word "Commissioners" has been substituted. Thus modified it is nots. 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. 38H of that as modified and applied to the Municipality of Howrah. It may look rather anomalous but that is what the effect of the modifi cation 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 respondont the result may be unfortnnat.e

(I)

(186•) 33 L.J (Cb.) 372, 376 .

•

J9oZ

Ohairman of tht Municipal. Commissione1a of Howrah v. Bhalimtlr Wood Prod11cts

Kop11r .T

1962

MarchZ6.

1 S.C.R.

SUPREME COURT REPORTS

55

but that is the interpretation of the language of the various sections which are-relevant in the prf'sent case.

Wa therefore aJlow

the appeal, set aside the order of the High Court and convict the respondent of the offences charged, but in view of the fact that the appel1ant succeeds on a question of interpreta tion we do not think it necessary to increase the sentence of fine. imposed by the 1earned Sessiom1' .Judge. The appeal is a.llowed to that extent.

0

Appeal f!llowe.d.

BEKARU SINGH

v. STATE OF U. P.

(J. L. KAPUR, and RAGHUBAR DAYAL, JJ.) Criminal Procedure-Surety bond-Substitutin{f one surety for another-Procedure-If accused must execute per.~onal bond with every suretv bond-Forfeiture of bond-Gode of Oriminal Procedure, 1898 (Act. V of 18!J8), .~s. 499, 500, fi02, Sclied111e V. Form. No. XLII.

One R was grantee! bail on his furnishing a personal bond and three sureties which he did. O_n. July 7, one of the sureties S appl~ed for the discharge of his bond. On July 9, R made an application that the appdlants surety bond be a<:cepted in place of S, and the same day the 'appellant filed his surety bond. The appellant also· filed an affidavit that he had property enough to satisfy the bond and a vakil also certified to that effect. The bond was sent for verification to the Tehsil and after verification was formally accepted on August 20. Subsequently R ab~condecl and the appellant's bond was forfeited. The appellant contended the that forfeiture was illegal and t?at his bond was not properly accepted as no warraut was issued fm: the arrest of R when S applied for the discharge of his bond, as the bond of S was not formally discharged and as R had not execulccl a personal hond on the reverse of the form on which the appellant had executed his bond.