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The State of Maharashtra Vs. R.J. Kabani - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai High Court
Decided On
Case NumberCriminal Appeal No. 549 of 1972
Judge
Reported inAIR1975Bom63; (1974)76BOMLR448; 1974MhLJ687
ActsBombay Municipal Corporation Act, 1888 - Sections 390 and 390(1)
AppellantThe State of Maharashtra
RespondentR.J. Kabani
Appellant AdvocateS.C. Pratap, Asst. Govt. Pleader
Respondent AdvocateJ.C. Rajani and ;K.P. Desai, Advs.
Excerpt:
.....corporation act (bom. iii of 1888), sections 390(1), 471 - amendment made by bombay act i of 1916--factory established and in existence in goregaon (east) since 1949--area merged with greater bombay from february 1, 1957--whether permission under section 390(1) of act necessary to work such factory.;the latter part of sub-section (1) of section 390 of the bombay municipal corporation act is applicable to and would cover cases of factories which have been established before the enactment came into force or before the enactment was made applicable to the areas which have since been merged within the limits of greater bombay and even such factories will have to obtain written permission as contemplated by section 390 of the act.;the bombay municipal corporation v. i.s. patel (1970) criminal..........was being used. the respondent-accused, a partner of the firm, could not on demand produce any written permission under section 390(1) of the act, inasmuch as, no such permission had been obtained. the overseer reported the matter to the higher authorities and oen mr. b.n. mehta, junior municipal prosecutor and advocate, filed a complaint against the respondent-accused in the court of presidency magistrate, 26th court, borivli, charging him with an offence punishable under section 471 read with section 390 of the act of the allegation that he was found to have worked his aforesaid factory with the aid of electric energy of 20 h.p. on 22nd december 1970 without a valid permission as required under section 390 (1) of the act. the respondent-accused admitted the working of the factory.....
Judgment:

Tulzapurkar, J.

1. This appeal preferred by the State of Maharashtra against the acquittal of the respondent accused raises an important question pertaining to proper construction to be placed upon Section 390(1) of the Bombay Municipal Corporation (Bombay Act III of 1888) (hereinafter referred to as 'the Act') and since the two Division Benches of this Court have expressed conflicting views thereon the same has been referred to this Full Bench for decision.

2. The facts giving rise to the prosecution of respondent-accused were these: One Mr. P.P. Jacob, Overseer of the Bombay Municipal Corporation, visited the premises of Universal Metal Refinery at Churiwadi, Goregaon (East) on 22nd December 1970 at about 11-30 A.M. and noticed that the work of casting of balcony plates and moulding of plastic was going on in the said factory. He also found that 5 workers were actually working there and electric energy to the extent of 20 H.P. was being used. The respondent-accused, a partner of the firm, could not on demand produce any written permission under Section 390(1) of the Act, inasmuch as, no such permission had been obtained. The overseer reported the matter to the higher authorities and oen Mr. B.N. Mehta, Junior Municipal Prosecutor and Advocate, filed a complaint against the respondent-accused in the Court of Presidency Magistrate, 26th Court, Borivli, charging him with an offence punishable under Section 471 read with Section 390 of the Act of the allegation that he was found to have worked his aforesaid factory with the aid of electric energy of 20 H.P. on 22nd December 1970 without a valid permission as required under Section 390 (1) of the Act. The respondent-accused admitted the working of the factory on the said premises and further admitted that he had not obtained any permission under Section 390 of the Act. He, however, contended that the said factory had been established in 1949 when Goregaon (East) was not within the limits of Greater Bombay and hence no permission was required under Section 390 for conducting his factory. On the evidence led before him the learned Presidency Magistrate found as a fact that the factory was functioning on the premises in question since 1949 and he also accepted the contention of the respondent-accused that since the factory was already in existence prior to concerned area being brought within the limits of Greater Bombay, written permission under Section 390(1) of the Act was unnecessary and he, therefore, acquitted the respondent-accused by his order dated 3rd November 1972. In taking the above view he relied upon the judgment of a Division Bench of this Court (consisting of Kotwal, C.J. and Palekar J.) delivered on 6-4-1970, in Criminal Revn. Appln. No.616 of 1969 (Bom.) where this Court took the view that in respect of factories established in areas prior to merger of all such areas within the limits of Greater Bombay, no such permission under Sec.29- was required to be obtained. Against the acquittal order the State preferred the aforesaid appeal which came up for hearing before Vaidya, J and before the learned Judge reliance was placed on behalf of the State on a prior judgment of Division Bench of this Court (consisting of Gajendragadkar and Vyas, JJ.) delivered on 30-3-1954 in Criminal Appeal No.73 of 1954 (Bom), where a contrary view wastaken, it being held that where the factory was situated in Bandra and was established before Bandra was included within the limits of Greater Bombay, such factory required a written permission under Section 390 (I) of the Act for running the same after the area had merged within the Greater Bombay. Three other judgments of Single Judges of this Court in which a view similar to the one taken by Gajendragadkar and Vyas JJ. was taken were cited before the learned Judge. (Vide judgment of Vimadalal J., D/- 8.11.1968 in Criminal Appeal No.467 of 1967 (Bom.), judgment of Deshpande, J., D/-14.8.1972 in Criminal Appeal No.69 of 1971 (Bom.) and judgment of Rege, J., D/-12.4.1973 in Criminal Appeal No.915 of 1971 (Bom.). Having regard to manifestly conflicting rulings of this Court on the point counsel for both the parties requested the learned Judge to place the appeal before the Hon'ble the Chief Justice for constituting a Full Bench for resolving the conflict and that is how the matter has been referred to us for our decision.

3. Since the question pertains to proper construction to be placed on the provisions of Section 390 (1) of the Act, it would be desirable to set out the provisions of Section 390 of the Act which run as follows:-

'390. (1) No person shall newly establish in any premises any factory, workshop or work-place in which it is intended that steam, water or other mechanical power shall be employed, without the previous written permission of the Commissioner nor shall any person work, or allow to be worked, any such factory, workshop or work-place without such permission.

(2) The Commissioner may refuse to give such permission if he shall be of opinion that the establishment of such factory, workshop or work-place in the proposed position is objectionable by reason of the density of the population in the neighbourhood thereof, or will be a nuisance to the inhabitants of the neighbourhood.

(3) If any written permission for the establishment of a factory, workshop or work-place granted under sub-section (1) be revoked by the Commissioner in the exercise of his powers under sub-section (3) of Section 479, no person shall continue or resume the working or use of such factory, workshop or workplace until such written permission is renewed or a fresh written permission is granted by the Commissioner.'

4. It was not disputed before us that in the instant case the factory of the respondent-accused had been established and was in existence in Goregaon (East) since 1949: it was also not disputed that the concerned area of Goregaon (East) came to be merged within the limits of Greater Bombay with effect from 1st February 1957 and as such the important question arising for determination in the case is whether sub-section (1) of Section 390 applies to this factory or not. It was not disputed that the first part of sub-section (1) of Section 390 would not apply to the case, for obviously that part applies to a case where a person wants to establish, newly in any premises a factory, workshop or work place in which it is intended that steam, water or other mechanical power shall be employed. The real question, therefore, is whether the second part of sub-section (1) of Section 390, which was inserted by way of amendment by Bombay Act I of 1916, applies to the factory in question notwithstanding its existence at Goregaon (East) prior to inclusion of that area within the local limits of the Bombay Municipal Corporation, and it was on this disputed question that rival contentions were urged before us by counsel appearing for the parties.

5. Mr. Rajani appearing for the respondent-accused contended that the two parts of sub-section (1) of Section 390 should be read together and so read it would be clear that latter part which was added by Bombay Act I of 1916 shall apply to a newly established factory after the area Goregaon (East) was merged within the limits of Greater Bombay, that is tosay, after the provisions of Section 390(1) became applicable to such merged areas on and from 1st February 1967. He pointed out that ordinarily all legislation, which is not procedurally but deals with the rights of citizen, must be regarded as prospective in operation that the first part of sub-section (1) which was enacted on 14th September 1888 was clearly intended to apply to factories that were established after that enactment came into force and that this aspect of the matter had been made sufficiently clear out of abundant caution by using the words 'No person shall newly establish' in the first part of sub-section. (1). He therefore, contended that even the second part of sub-section (1) which was added by Bombay Act I of 1916 should also be similarly construed to have prospective operation, that is to say, to factories that were established after that enactment came into force and that this aspect of the matter had been made sufficiently clear out of abundant caution by using the words 'No person shall newly establish' in the first part of sub-section (1). He, therefore, contended that even the second part of sub-section (1) which was added by Bombay Act I of 1916 should also be similarly construed to have prospective operation, that is to say, to factories which came to be established after 12th February, 1916 the date on which the added portion came into effect. He further urged that if the latter part, which was added by Bombay Act I of 1916, is carefully scrutinised, it will appear clear that the expressions 'such factory' and 'such permission' mut mean permission described in the earlier part, namely, previous written permission to establish a factory. According to him, therefore, the latter part of sub-section (1), which was added by Bombay act I of 1916, only applies to factories which have come to be established after the said provision was enacted or was extended and made applicable for the first time to areas which dame to be included within the municipal limits of the Corporation under Bombay Act of 1946 or Bombay Act 52 of 1956 and since it was admitted that the factory of the respondent -accused was in existence in Goregaon (East) since 1949 and Goregaon (East) came into Greater Bombay with effect from 1.2.1957 under Bombay Act 52 of 1956, the same did not require any written permission contemplated by Section 390 of the Act. In support of his contention he naturally relied upon the latest Division Bench Judgment of this Court delivered by Kotwal C.J. and Palekar J. on 6.4.1970 in Cri Revn. Appln. No.616 of 1969 (Bom). He pointed out that in this judgment the Division Bench had taken the view expression such factory occurring in the latter part of sub-section (1) should be interpreted to mean a newly established interpreted to mean a newly established factory in which it was intended to employ steam,water or other mechanical power; in other words, according to mr. Rajani, the decision clearly laid down that the section was applicable to the factory, workshop or work-place of a particular description which was sought to be newly established within Greater Bombay and according to him, the Division Bench also took the view that there was nothing in the latter part of sub-section (1) of Section 390 nor in any other provision of the Act to show that for continuing the working of such old established factory permission under Section 390 of the Act was required. There is undoubtedly considerable force in the contention urged by Mr. Rajani before us.

6. On the other hand, Mr. Pratap appearing for the State contended that on a proper interpretation of the latter part of sub-section (1) of Section 390 it should be held that permission contemplated under Section 390 was required to be obtained even in respect of factories established before the concerned area was merged within the limits of Greater Bombay for working or running the same after the merger has taken place. He argued that under the latter part of sub-section (1), which was added by Bombay Act I of 1916, it was intended by the legislature to apply the provisions pertaining to requirement of obtaining previous written permission even to factories which had been established before but were actually running or working after the Act became applicable. He urged that the expression 'such factory' occurring in latter part of sub-section (1) should be construed to mean 'the factory in which it is intended that steam, water or other mechanical power shall be employed' and not ' a newly established factory in which it is intended that steam, water or other mechanical power shall be employed;' and similarly the expression 'such permission' occurring in the latter part of sub-section (1) should be construed to mean 'previous written permission for working the factory' and not 'permission for working the factory' and not 'permission to establish a new factory'. According to him, if the two expressions 'such factory' and such permission were interpreted in this mananer, it will be clear that the latter part of sub-section (1), which was added by Bombay Act I of 1916, was added by apply to the working of even old established factories after the Act was made applicable to the areas in which such established factories were situated, In support of his contention Mr. Pratap principally relied upon the decision of the Division Bench of this Court (consisting of Gajendragadkar and Vyas JJ.) gives on 30.3.1954 in Criminal Appeal No.73 of 1954 ( Bom .) He pointed out that in that case identical question had arisen for consideration, inasmuch as, the owner of a factory , which was working on electric motor of 20 H.P and was manufacturing Badami coal and which had been established in Bandra before Bandra came to be merged within the limits of Greater Bombay ,was prosecuted for not having obtained the written permission from the Municipal Commissioner under Section 390(1) of the Act after the provisions of the said section were made applicable to the said section were made applicable to Bandra and the Division Bench held that even such factory which had been established prior to merger of Bandra within the limits of Greater Bombay required written permission under Section 390(1) of the Act for working the same after the area had merged within Greater Bombay. He Pointed out that in that case relying upon the expressions 'such factory' and 'such premissions' occuring in the latter part of sub-section (1) of Section 390 similar arguments were advanced before the Court on behalf of the accused and the Division Bench took the view that the expression 'such factory' must, therefore be construed as meaning a factory in which it is intended that steam , water or other mechanical power shall be employed. That is to say, the words 'such factory' do not mean a factory which has been newly established and in which mechanical power is intended to be employed ; it only means a factory in which mechanical power is intended to the employed'. In adopting such construction of the expression 'such factory' that Division Bench relied upon the decision of this Court in Emperor v. Karaandas Govidji : AIR1942Bom326 , Where a similar construction had been placed on the expression 'such factory' occurring in the latter part of sub-section (1) of Section 390. Mr. Pratap contended that Chief Justice Beaumount, who delivered the Judgment in : AIR1942Bom326 observed as follows:

'The reference in the last part of the section to working 'any such factory' must relate back to the description of the factory contained in the earlier part of the Section,and the only description of a factory is of one in which it is intended that steam ,water or other mechanical power shall be employed.'

The Division Bench in Cri. Appeal No. 73 of 1954 (Bom) after adopting the aforesaid construction of the expression 'such factory' proceeded to observe that, 'by parity of reasoning the expression 'without such permission' occurring in the same clause can, in our opinion be reasonably construed to mean previous written permission not for establishing the factory , but for working it or allowing it to be worked'. Mr. Pratap further pointed out that a similar construction had been placed on the expressions 'such factory' and such permission' occurring in the latter part of sub-section (1) of Section 390 in further three judgments of this Court,though each one of them happens to be of a single Judge. He pointed out that whereas Deshpande J.and Rege J. in matters that were argued before them followed the Division Bench ruling in Cri Appeal No. 73 of 1954 (Bom.) Vimadalal J. had independently come to the same conclusion that the expression 'such factory' must mean a factory in which it is intended that steam water of other mechanical power shall be employed and the expression did not mean a newly established factory in which it is intended that steam, water or other mechanical power shall be employed . He, therefore ,urged that on a proper construction of the latter part of sub-section (1) of Section 390 we should hold that the factory of the respondent -accused and its able to Goregaon (East) would require a written permission contemplated by Section 390 of the Act.

7. On a crateful consideration of the rival contentions urged by counsel before us and on persual of rival views contained in two sets of decisions of the Division Benches of the Court.It becomes obvious that the provision contained in the latter part of Sub-section (1) of Section 390 is capable of yielding to two different constructions both equally possible and in such a situation it cannot be disputed that it would be open to the Court to look it would be open to the Court to look into the Statement of Objects and Reasons of Bombay Act, I of 1916 under which the latter part of sub-section (1) was added to the original such section (1) of Section 390 with a view to ascertain the intention of the legislature while enacting the latter part. It is stated therein as follws:

'Section 390 has been found by the executive to be inadequate. By Sections 514 a prosecution for breach of the provisions of Section 390 must be instituted within three months of the established of the factory. Consequently if a newly the Health Department for three months not only does the promoter escape liability but also the factory cannot be discontinued as the result of successful prosecution , there is nothing in the present law to prevent the resumption of work at the factory, because resumption of work at the factory , because resumption of work does not come within the meaning of new establishment Also purchaser from an establisher is beyond the reach of the law,and finally, no provision exists for continuous punishment of an offence which is likely to be continuous.These defects have been remedied.'

The Purpose of adding the latter part of clearly set out above and the mischief that were sought to be remedied by making the addition have been clearly indicated. It will thus appear clear that the intention was not to bring within its purview factories that had been established prior to enactment coming into force or the continued working of such old established factories. Similarly , therefore the said provision could not have been intended to apply to factories established in areas which were subsequently brought within the limits of Greater Bombay.Looked at from this angle, the contention of Mr. Rajani, appears to be well-founded, that by adding latter part of sub-section (1) of Section 390 was never intended by the legislature that old established factories should be required to obtain written permission contemplated by that section. But here again it was urged by Mr. Pratap that though it was true that the Statement of Objects and Reasons could be looked into for ascertain the intention of the legislature the same had very limited use for, according to him, the legislature could enter a measure going much further than what was initially indicated in the Statement of Objects and Reasons. In other words, Mr. Pratap contended that though initially the Bill may have been put forward to a chive a limited purpose the Legislature could go further than what the movers of the Bill had initially in their mind. He urged that the present case could be regarded as an instance in point where the Legislature had gone further than what was stated to be the object in the Statement of Objects and Reasons and the intention of the legislature had to be really gathered from the enacted words themselves and the operation of enacted words could not be controlled by what was contained in the Statement by Objects and Reasons; and he urged that the enacted words have been properly construed as being applicable to the continued working of premerger factories after the concerned area was not merged within the limits of Greater Bombay.

8. As stated earlier, in our view, the relevant provision of sub-section (1)of Section 390 is capable of two constructions, both equally possible. Mr. Pratap, therefore, urged that the construction canvassed by him has the merit of carrying out the beneficent object of the legislation. He also pointed out that but for the latest Division Bench ruling of Kotwal C.J. and Palekar J. in Cri. Appeal NO.616 of 1969 delivered on 6.4.1970 (Bom.). all along the relevant provision contained in the latter part of sub-section (1) has been construed as being applicable to even to old established factories to which the enactment was made applicable later on and even the Corporation has acted on such construction all throughout and all such established factories have been required to obtain a written permission under section 390 of the Act. In that behalf, an affidavit of Deputy Municipal Commissioner Mr. V.H. Gumaste has been filed on record of this appeal. It appears clear, therefore, that the construction put upon the latter part of sub-section (1) of section 390 by the Division Bench of this Court in 44 Bom LR 756 : : AIR1942Bom326 aswell as in Cri. Appeal No.73 of 1954 (Bom), was also the Corporations' interpretation and the same has held the field for the past several years should not be disturbed of deviated from. Moreover, in viw of the statements contained in pars 3 of Mr. Gumaste's affidavit, we feel no hardship will be caused to owners or conductors of such old established factories if the construction that has held the field isaccepted. We therefore, hold that the latter part of sub-section (1) of section 390 of the Act is applicable to and would cover cases of factories which have been established before the enactment was made applicable to the areas which have since Bombay and even such factories will have to obtain written permission as contemplated by Section 390 of Act.

9. Since the question was really a debatable one and required a decision of larger Bench, we do not think it would be proper in the instant case to convict the respondent-accused and impose a sentence upon him. Mr. Rajani appearing for the respondent-accused has stated that his client is willing to make the necessary contemplated by Section 390 of the Act and that the requisite permission would be granted in view of the statement contained in para 3 of Mr. Gumaste's affidavit, the Municipal authorities should be called upon to withdraw the prosecution. The prosecution is therefore, allowed to be withdrawn Mr. Pratap has also made a statement to us which we would like to record. He stated that all the prosecutions presently pending under Section 390 read with Sections 471/472 of the Bombay Municipal Corporation Act. 1888 in respect of factories established prior to the merger in the Suburban areas which have since been merged in the Suburban and extended Suburban areas which have since been merged in Greater Bombay will be withdrawn provided the accused in those cases make application for permission under Section 390 of the Act within a period of four months from the date of publication of a notification in that behalf.

10. In the result , the appeal is dismissed.

11. Appeal dismissed.


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