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The State Vs. Ismailkhan Ahmedkhan - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai High Court
Decided On
Case NumberCriminal Appeal No. 622 of 1954
Judge
Reported in(1955)57BOMLR48
AppellantThe State
Respondentismailkhan Ahmedkhan
DispositionAppeal dismissed
Excerpt:
.....to him or any provision or regulation or by-law under act-whether commissioner competent to revoke permission-accused whether had committed any offence in working mill-construction.;the permission granted for the establishment of any factory under section 390(1) of the bombay municipal corporation act can. be revoked only in the circumstances mentioned in section 479(3) of the act. section 479(3) of the act imposes limitations on the commissioner's powers and it is not open to him to cancel the permission granted by him, except on one or more of the grounds mentioned therein.;the words of section 479(3) of the act are general and are not restricted in their application only to permissions granted for the establishment of factories. therefore section 479(3) will also apply when the..........to the interpretation of section 390 of the city of bombay municipal act, 1888. the opponent was granted permission under sub-section (2) of section 390 to work a flour mill at 155, bapty road. on march 7, 1953, the municipal commissioner wrote to him a letter exh. b in which he informed the opponent that the permission granted to him to conduct the flour mill had been revoked 'as his mill was a nuisance to the locality.' the municipal commissioner also asked the opponent to stop the working of the flour mill forthwith. the opponent ignored this letter and continued to work the mill. on april 2, 1953, a complaint was therefore filed against the opponent under section 471 of the city of bombay municipal act for working the mill on march 28, 1953, after the permission granted to him had.....
Judgment:

Chainani, J.

1. This appeal involves a question as to the interpretation of Section 390 of the City of Bombay Municipal Act, 1888. The opponent was granted permission under Sub-section (2) of Section 390 to work a flour mill at 155, Bapty Road. On March 7, 1953, the Municipal Commissioner wrote to him a letter exh. B in which he informed the opponent that the permission granted to him to conduct the flour mill had been revoked 'as his mill was a nuisance to the locality.' The Municipal Commissioner also asked the opponent to stop the working of the flour mill forthwith. The opponent ignored this letter and continued to work the mill. On April 2, 1953, a complaint was therefore filed against the opponent under Section 471 of the City of Bombay Municipal Act for working the mill on March 28, 1953, after the permission granted to him had been revoked, in contravention of the provisions of Sub-section (J) of Section 390.

2. The opponent denied that this mill constituted a nuisance. He admitted that he had worked the flour mill on March 28, 1953, i.e. after the permission granted to him for the working of the mill had been revoked, but he contended that the Municipal Commissioner had no authority to revoke the permission granted to him, as he had not infringed any of its conditions, and that consequently he had not committed any offence. This contention was accepted by the learned Magistrate, who accordingly acquitted the opponent. The State of Bombay has appealed against the order of the learned Magistrate acquitting the opponent.

3. Sub-section (1) of Section 390 states inter alia,

No person shall newly establish in any premises any factory,...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,... without such permission.

Sub-section (2) of the section states,

The Commissioner may refuse to give such permission if he shall be of opinion that the establishment of such factory,...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.

Sub-section (3) provides,

If any written permission for the establishment of a factory,...granted under Sub-section (i) be revoked by the Commissioner in the exercise of his powers under Sub-section (3) of Section 470, no person shall continue or resume the working or use of such factory,... until such written permission is renewed or a fresh permission is granted by the Commissioner.

This sub-section prohibits the working of any factory after the permission granted for its establishment has been revoked under Sub-section (3) of Section 479. It does not prohibit the working of the factory if the permission is cancelled for any reason other than that specified in Sub-section (3) of Section 479. The necessary inference therefore is that the Legislature intended that the permission should be revoked only in the circumstances mentioned in Sub-section (3) of Section 479.

4. That this was the intention of the Legislature is made clear by the provisions of Section 479. Sub-section (1) of this section provides,

Whenever it is provided in this Act that a...written permission may be given for any purpose, such...written permission shall specify the period for which, and the restrictions 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.

Sub-section (3) of this section states.any...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 hereunder in any matter to which such...permission relates'.

This sub-section, therefore, specifies the circumstances in which the Commissioner can revoke a written permission granted by him. It imposes restrictions on the powers of the Commissioner and he can revoke the permission granted by him only for the reasons mentioned in this sub-section. The learned Additional Assistant Government Pleader has argued that the power to grant a permission under Sub-section (1) of Section 390 includes the power to revoke such permission. That may be so. But it is open to the Legislature to impose restrictions on the exercise of this power. This is what the Legislature has done in Sub-section (3) of Section 479, by specifying the grounds on which the Commissioner may revoke a permission granted by him. The specification of these grounds shows that the Legislature intended that the permission should not be cancelled for any other reason. This sub-section imposes limitations on the Commissioner's powers and it is not open to him to cancel the permission granted by him, except on one or more of the grounds mentioned therein.

5. It has been contended that as Sub-section (3) of Section 390 prohibits the working of any factory, if the permission granted for its establishment has been revoked under Sub-section (3) of Section 479, the limitations imposed by Sub-section (3) of Section 479 on the powers of the Municipal Commissioner will apply only when the Commissioner proposes to revoke the permission for the establishment of a factory and not when he proposes to revoke the permission for the working of a factory. There is no substance in this argument. The words of Sub-section (3) of Section 479 are general and are not restricted in their application only to permissions granted for the establishment of factories. The sub-section states, 'any written permission granted under this Act may at any time be suspended or revoked by the Commissioner...' This provision therefore applies to all permissions granted under the Act. It will consequently also apply when the Commissioner proposes to revoke the permission granted by him for the working of a factory.

6. It has been urged that the result of this interpretation will be that while the Commissioner can refuse to grant permission for the establishment of a factory on the ground that it will be a nuisance to the inhabitants of the nieghbourhood, he cannot revoke or cancel the permission on this ground. It is however open to the Commissioner to impose suitable restrictions and conditions at the time of granting permission, under Sub-section (1) of Section 479, in order to secure that the factory will be worked in such manner that it will net become a nuisance to the residents of the locality. Cm breach of any of these conditions, it would be possible to revoke the permission under Sub-section (3) of Section 479.

7. In the present case it is not the case of the Municipality that the opponent has infringed or evaded any of the conditions of the permission granted to him or that he has been convicted of any infringement of any of the provisions of the Act or of any regulation or by-law made thereunder. The Commissioner was, therefore, not competent to revoke the permission granted to the opponent.

8. The learned Magistrate was, therefore, right in holding that the opponent had not committed any offence in working the flour mill on March 28,1953, as the permission granted to him for its working had not been lawfully revoked.

9. The order passed by the learned Magistrate acquitting the opponent was, therefore, correct and the appeal is dismissed.


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