1. The Agent of the G.I.P. Railway Co. was charged in the Presidency Magistrate's Court under Section 394(i)(d), of the City of Bombay Municipal Act, with, having used certain premises for the purpose of storing timber without a license granted by, the Municipal Commissioner.
2. The Chief Presidency Magistrate haying taken evidence has referred for the opinion of this Court certain questions specified at the end of the case slated by him.
3. The first question is, in our opinion, One of fact and not of law, and, therefore, cannot be stated under Section 432 of the Criminal Procedure Code, under which this reference is made.
4. As regards the other questions, if the second question is answered in the affirmative no answer need be given to the remaining questions, for the case will in that event have to be decided in favour of the respondent. The second question is in these terms:
Do the statutory powers given to the Railway Company (section 7 of the Indian Railways Act IX of 1890) preclude the necessity of obtaining a license from the Municipal Commissioner to use premises in such a manner as is necessary for the convenient making, altering, repairing and using the Railway?
5. Section 7 of the Indian Railways Act IX of 1890, to the provisions of which the G.I.P. Railway is subject, provides as follows:
(1). Subject to the provisions of this Act and, in the case of immovable property not belonging to the Railway administration, to the provisions of any enactment for the time being in force for the acquisition of land for public purposes and for companies, and subject also, in the case of a Railway Company, to the provisions of any contract between the company and the Government, a Railway administration may for the purpose of constructing; a Railway or the accommodation or other works connected therewith and not with standing anything in any other enactment for the time being in force....
(f) do all other acts necessary for making, maintaining, altering or repairing and using the Railway.
(2) The exercise of the powers conferred on a Railway administration by Sub-section (1) shall be subject to the control of the Governor-General in Council.
6. In stating the case the Magistrate finds as a fact on the evidence that it is necessary for the convenient making, maintaining, altering or repairing the Railway that the Railway Company should be at liberty to store Railway sleepers on the premises in question from time to time and that as the sleepers are obtained by shiploads from Australia it inevitably follows that at certain periods there is a large accession to the stock. Upon this finding it would appear prima facie that the Railway administration is authorised to store Railway sleepers upon the premises in question not with standing anything in any other enactment for the time being in force.
7. It is, however, argued on behalf of the Municipal Commissioner that not with standing the statutory authority and not with standing the finding of the Magistrate it is still necessary for the Railway Company to obtain a license under Section 394 of the Bombay Act III of 1888 for storing sleepers upon the premises.
8. It will be convenient at this point to set out the portions of the sections of the Municipal Act, which have been referred to in argument:
9. Section 394(1), (b) and (d) provide:
(1) No person shall use any premises for any of the purposes herein below mentioned without, or otherwise than in conformity with the terms of a license granted by the Commissioner in this behalf, namely:
(b) any purpose which is, in the opinion of the Commissioner, dangerous to life, health and property, or likely to create a nuisance, and....
(d) storing for other than domestic use or selling timber, firewood, charcoal, coal, coke, ashes, hay, grass, straw or any other combustible thing.
10. Section 479(1) provides:
(d) Whenever it is provided in this Act that a license or a written permission may be given for any purpose, such license or written permission shall specify the period for which, and the restriction and conditions subject to which, the same is granted, and shall be given under the signature of the Commissioner or of a Municipal Officer empowered under Section 68 to grant the same.
11. Section 479(3) provides:
Subject to the provisions of Clause (d) of Section 403, any license or written permission granted under this Act may at any time be suspended or revoked by the Commissioner, if any of its restrictions or conditions is infringed or evaded by the person to whom the same has been granted, or if the said person is convicted of an infringement of any of the provisions of this Act or of any regulation or by-law made here under in any matter to which such license or permission relates.
12. It is not disputed that the unrestricted provisions of Section 394 Would empower the Commissioner to refuse in his discretion to grant a license. This view has the authority of a ruling of this Court in its favour. See Haji Esmail Hajee Essac v. Municipal Commissioner of Bombay 5 Bom. L.R. 1001. It was at first contended fey counsel for the Commissioner that the power of refusal extended to such a case as the present but being pressed by the words of Section 7 of the Railways Act 'not with standing anything in any other enactment for the time being in force' and by the consideration that such a contention if upheld would give to the Commissioner, under Section 394(b), the power, if he thought fit, to prohibit the working of the Railway in parts of the city. He modified and reduced the argument to this, that although by reason of the terms of Section 7 of the Railways Act the Commissioner could not prohibit the use of any premises, the use of which was authorised by the terms of Section 7, yet he still had reserved to him under Section 394(1)(d) a power of regulating the method in which the Railway Company should store timber upon its premises even though such storing was authorised by Section 7(1)(f); and authorities were cited to the Court in support of the general proposition that an implied repeal of one Act by a later Act will not be inferred if it is possible even partially to harmonise the provisions of the two Acts. While we recognise this as a general rule of construction, we do not think that there is any scope for its application in the present case; in the first place, it would involve an almost complete re-writing of Section 394, part of it being left to stand, another part being restricted without any precise guidance as to the limits of the restriction and yet another part being altogether deleted. It seems to us very doubtful whether such a recasting of the section would be warranted by any recognised principles of contraction. In the second place we have not only the provision that the words of Section 7 shall be read not with standing anything in any other enactment for the time being in force, but we have an express declaration in Sub-section (2) of the authority which shall have control of the Railway administration in the exercise of its powers under Sub-section (1). That authority is the Governor-General in Council and not the Municipal Commissioner.
13. The provisions of the Railways Act to which we have referred provide, we think, for an undivided and exclusive control of Railway administrations by the Supreme Government.
14. Considerations of convenience and the safety of the public and security of property have been pressed upon us in argument. But we do not think there is any practical force in any of these suggestions, for, if the Municipal Commissioner is really of opinion that the Railway Company is exercising its statutory powers in a manner inconsistent with the health of the inhabitants of Bombay of the safety of property therein, it is always open to him to make a representation to that effect to the Governor-General in Council in order that the state of affairs complained of may be inquired into and if necessary remedied by the proper authority.
15. For these reasons we answer the second question in the affirmative and we return the case to the Presidency Magistrate to be disposed of in accordance with this finding.