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Emperor Vs. Ahmedalli Esufalli - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai
Decided On
Case NumberCriminal Application for Revision No. 396 of 1937
Judge
Reported inAIR1938Bom282; (1938)40BOMLR322
AppellantEmperor
RespondentAhmedalli Esufalli
Excerpt:
city of bombay municipal act (bom. ill of 1888), schedule m, part iii, section 394 (1) (b)-timber-plywood is not timber.;the word ' timber ' in schedule m, part iii, of the city of bombay municipal act, 1888, does not include plywood.;ramanujiah v. the commissioner, corporation of madras [1937] 1 m.l.j. 138 approved. - - and the inclusion of timber in the schedule would clearly be, because of the risk of a stack of timber catching fire. there can also be no doubt that at the other extreme, after the timber has been manufactured into a finished article like a table or a chair or a boat, it ceases to be aptly described as timber. and i quite agree that there is a good deal to be said for that view. the commissioner, corporation ofmadras air1937mad155 .i think he goes rather too far in..........of plywood, or how it is produced, or what it is used for. the question is, has the timber in ply-wood reached a stage in its development at which it has acquired a distinctive name of its own, so that it can no longer be properly described as timber; in my opinion, it has reached such a stage. i think that an order for timber could not properly be complied by supplying ply-wood, and that in ordinary parlance one could not refer to ply-wood as timber. the same view was taken by mr. justice gentle in the case of ramanujiah v. the commissioner, corporation ofmadras : air1937mad155 . i think he goes rather too far in treating ply-wood as being on the same footing as a manufactured article like a chair or a table, since plywood has no purpose of its own, but i agree with his conclusion. in.....
Judgment:

John Beaumont, Kt., C.J.

1. This is a revision application in which the applicant complains of his conviction of an offence under Section 394 (1) (h) of the City of Bombay Municipal Act, 1888. That section provides that except under, and in conformity with the terms and conditions of, a license granted by the Commissioner, no person shall keep, in or upon any premises, for sale or for other than domestic use, any article specified in Part III of Schedule M. Part III of Schedule M contains a list of articles, and merely from reading the list it is difficult to see what object the legislature had in mind in framing a list of such a heterogeneous character. The list includes firewood and also timber, and ' timber' is the material word for the purpose of this case. Looking; to the nature of the articles in Part III, Schedule M, and to the terms of Section 394, and particularly Section 394 (1) (d), which refers to carrying on of a trade or operation which in the opinion of the Commissioner is dangerous to life, health or property, or likely to create a nuisance, I think one may conclude that the object of requiring a license for the keeping of articles mentioned in Part III of Schedule M was to safeguard the public against nuisance or danger; and the inclusion of timber in the schedule would clearly be, because of the risk of a stack of timber catching fire. But many inflammable articles are not included in the schedule so that the general purpose of the legislature does not help much.

2. Now, the evidence is that the accused keeps in his shop for sale ply-wood ; and the question we have to determine is, whether ply-wood is timber within the meaning of Part III of Schedule M. From an etymological standpoint plywood means wood in layers. Wood is a generic term considerably wider than timber. All timber is wood, but all wood is not timber. We have been referred to various definitions of timber. There is the common law meaning under which timber includes oak, ash, elm and other trees which are comprised in the expression by a local custom. I do not think the common law definition helps us in construing this schedule. Timber is not used in a technical sense in the schedule. I have no doubt about that. Then there is the Oxford Dictionary definition of timber as 'wood used for building or carpentry,' and I think that is the meaning which is generally attributed to timber.

3. Now, according to the evidence of two experts who were called, ply-wood is a form of manufactured timber, that is to say, it is the original timber after being subjected to a considerable number of processes of manufacture. The evidence shows' that there are some twelve processes. First of all, timber is rounded ; then it is boiled ; then it is put in a rotary machine and cut into sheets and the sheets are dried by steam or heat, and then they are glued together with waterproof cement or glue, and then they are dried under hydraulic pressure; so that a considerable amount of manufacturing process has been used in the production of plywood; and the question which we really have to determine is, whetherplywood has reached a stage at which it can no longer be properly described as timber. It comes midway between the two extremes. There can be no doubt that a tree of sufficient growth which has been newly felled is timber, and there can be no doubt that it remains timber after it has been cut up into logs for purposes of sale or transit. There can also be no doubt that at the other extreme, after the timber has been manufactured into a finished article like a table or a chair or a boat, it ceases to be aptly described as timber. Then it can only be properly described by its distinctive name as a table or a chair or a boat. Ply-wood, as I said, comes between those two extremes. A considerable amount of manufacturing processes has been employed upon it; but it has not reached a stage at which it has any use or purpose of its own ; and that, to my mind, distinguishes it from the finished article. Sir Jamshedji Kanga argues that ply-wood is still timber, because it is manufactured from timber and it is still to be used for building or carpentry, and, therefore, he says it comes within the dictionary definition of timber as ' wood used for building or carpentry,' and that is the view which the learned Magistrate took; and I quite agree that there is a good deal to be said for that view. But, in my opinion, there is rather more to be said for the opposite view, namely, that ply-wood has reached a stage at which it has acquired a name of its own. After all, we are dealing with a question merely of nomenclature; we are not; concerned with the nature of plywood, or how it is produced, or what it is used for. The question is, has the timber in ply-wood reached a stage in its development at which it has acquired a distinctive name of its own, so that it can no longer be properly described as timber; in my opinion, it has reached such a stage. I think that an order for timber could not properly be complied by supplying ply-wood, and that in ordinary parlance one could not refer to ply-wood as timber. The same view was taken by Mr. Justice Gentle in the case of Ramanujiah v. The Commissioner, Corporation ofMadras : AIR1937Mad155 . I think he goes rather too far in treating ply-wood as being on the same footing as a manufactured article like a chair or a table, since plywood has no purpose of its own, but I agree with his conclusion. In my opinion, therefore, the word ' timber' in Part III of Sen. M does not include ply-wood and the conviction must be set aside and the fine repaid.

Wassoodew, J.

4. I agree.


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