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ismailbhai Haji Baphubhai Nadiadwala Vs. State - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai High Court
Decided On
Case NumberCriminal Revision Application Nos. 2002 and 2003 to 2007 of 1959
Judge
Reported in(1960)62BOMLR543
Appellantismailbhai Haji Baphubhai Nadiadwala
RespondentState
DispositionAppeal Dismissed
Excerpt:
.....in a position to prevent the doing of the thing, and;that as the petitioners could not control or prevent jvhat their tenants were doing, the conviction of the accused was not justified.;gpodbarne v. buck [1940] 1 k. b. 771, wilson v. twamley [1904] 2 k.b. 99, toleman v. portbury (1870) l.r. 5 q.b. 288, parvatibai shamjee girdhar v. state (1958) criminal revisional application no. 11 of 1958 (unrep.). state v. aishabai (1957) criminal appeals nos. 595 to 598 of 1957 (unrep.) and state v. chinubhai haridas (1957) 59 bom. l.r. 1155, referred to. - - it is an admitted position that the tenants are selling the milk of these animals and hence the fourth condition is satisfied. but it is a well accepted rule of construction of penal statutes that they should be construed strictly. that was..........he observes (p. 105) :.there the lessee had covenanted not to 'permit' a sale by auction to be held on the premises without the consent of the lessor. he sub-let to a person, who didpermit such a sale to be held. thereupon an action was brought to recover the premises as on a forfeiture of the lease for breach of the covenant. a majority of the judges in that case held that the act of the sub-lessee in permitting the sale could not be treated as the act of the lessee, so as to constitute a breach of the covenant by him, because the sub-lessee was not his agent. the reasoning of this decision would apply. it appears to me that the word 'allow' would suggest that there is a right and the capacity to prohibit or prevent, since, if that right is not there, one cannot prevent the doing of.....
Judgment:

Patel, J.

1. This Revisional Application and the others raise a question of construction of Section 394(1)(c)(iv) of the Bombay Municipal Corporation Act, 1888. The petitioners are owners of stables in Malad. This area was outside the limits of the Bombay Municipal Corporation and since their construction the stables are used as stables for milch cattle. After the area was brought within the limits of the Greater Bombay, the Bombay Municipal Corporation Act became applicable. It appears the area was brought under the administration of the Municipal Corporation on February 1, 1957. Notices were served on the petitioners between July 2, 1958, to July 17, 1958, to carry out certain requirements, about 16 in number. It was said that

In view of the fact that you are carrying on the trade at the place prior to the merger of the Malad District Municipality a licence up to March 31, 1958 will be granted to you on your paying the scheduled fees to the Assistant Superintendent of Licences (Suburbs). Your licence for the year 1958-59 will be renewed only on your carrying out the accompanying requirements, Nos. 5, 12 and 14 within 6 months and the remaining requirements within 30 days from the receipt hereof.

It appears that the petitioners gave notice to the tenants owning the milch cattle. Since no licence was obtained, a complaint was filed against the petitioners before the Presidency Magistrate, 26th Court, Borivli, Bombay, under Section 394(7)(c)(iv) read with Section 471 of the Act. The learned Magistrate convicted the accused under Section 394(7)(c)(iv) read with Section 471 of the Act. It is against this judgment that the petitioners have come to this Court in revision.

2. In this case we are not concerned with the requirements to be carried out by the petitioners, since they are prosecuted and convicted for not obtaining the licence.

3. It is argued on behalf of the petitioners that they do not come within the terms of the section for 'the reason that the animals are kept not by themselves or on their account but by their tenants whom they have no right to evict or stop from what they are doing

4. Section 394(c) so far as relevant reads as follows:.no person shall keep or allow to be kept, in or upon any premises, horses, cattle or other four-footed animals-

(i) for sale,

(ii) for letting out on hire,

(iii) ...or

(iv) for sale of any produce thereof.

It is an admitted position that the tenants are selling the milk of these animals and hence the fourth condition is satisfied.

5. The word 'allow' has extensive meaning. It may mean 'permit; suffer, to give leave; not to prevent'. In Goodbarne v. Buck [1940] 1 K.B. 771 the words 'permits another to use a motor vehicle' came to be consideredunder the Road Traffic Act, 1930. MacKinnon L.J. says (p, 774) :.In order to make a person liable for permitting another person to use motor vehicle, it is obvious that he must be in a position to forbid theother person to use the motor vehicle.

6. In that case the person who was sought to be made liable was held not to be the owner and hence it was held that he was not within the section. In Wilson v. Twamley [1904] 2 K.B. 99, the words interpreted were 'would not do or suffer to be done on the premises' contained in a covenant. Collins M.R. said (p. 1.05) :.Here the defendant cannot be said to have done, or suffered to be done, the act relied on as a breach of the covenant, because the relation of sub-lessor and sub-lessee does not involve any connection between them in the nature of that between principal and agent. If the defendant had, instead of sub-letting the premises, put in a manager, who had done or suffered the act by reason of which the licence was not renewed, then he could not have said that it was done or suffered by another person for whom he was not responsible. He would have put another person in his place to act as his alter ego, and must have taken the risk of what happened through his acts or defaults. But that is not the present case. I should say that, prima facie, the meaning of the words 'do or suffer to be done' is that they must involve the doing of some act, or some abstention from action, by the covenantor himself, or by some person standing in the relation of agent to him, a relation which does not exist as between lessor and lessee.

The learned Judge then referred to the case of Toleman v. Portbury (1870) L.R. 5 Q.B. 28S, and stated that it is an authority to that effect. He observes (p. 105) :.There the lessee had covenanted not to 'permit' a sale by auction to be held on the premises without the consent of the lessor. He sub-let to a person, who didpermit such a sale to be held. Thereupon an action was brought to recover the premises as on a forfeiture of the lease for breach of the covenant. A majority of the judges in that case held that the act of the sub-lessee in permitting the sale could not be treated as the act of the lessee, so as to constitute a breach of the covenant by him, because the sub-lessee was not his agent.

The reasoning of this decision would apply. It appears to me that the word 'allow' would suggest that there is a right and the capacity to prohibit or prevent, since, if that right is not there, one cannot prevent the doing of the thing. Such a right could exist in the principal in relation to his agent or in a master in relation to his employee or in a bailor in relation to hisbailee in the last case under certain circumstances.

7. I may also refer to Sub-section (3) which seems to be an explanation to Clause (d) of Sub-section (1). It says:

A person shall be deemed to carry on or to allow to be carried on a trade or operation within the meaning of paragraph (ii) of clause (d) of Sub-section (1) if he does any act in furtherance of such trade or is in any way engaged or concerned therein whether as principal, agent, clerk, master, servant, workman, handicraftsman or otherwise.

It is true that this Sub-section does not apply to other clauses in Sub-section (7). Even so, the Legislature could not have different intentions regarding closely related matters-all intended to achieve the same object. It would be rather unusually peculiar that in the case of owners of buildings, the owner should be punished for something which he cannot control nor prevent, while in the case of business, only persons standing in particular relationship, having the right and the capacity to prohibit and prevent, should be punished.

8. It is true that as contended for by the Assistant Government Pleader the word 'allow' has a wide connotation. But it is a well accepted rule of construction of penal statutes that they should be construed strictly. I am aware that this rule is not to be applied in all its rigour to municipal statutes. However, I do not see how the purpose and the object of the Act can be served by giving the provision the extended meaning contended for. Even if the landlord is punished, he is powerless to prevent the nuisance. Even in ordinary times he could not have turned out the tenants without recourse to law. If he had done so, he would have been liable for trespass criminally and civilly. His difficulties are many more now because of the Rent Acts. To punish him for the conduct of the tenants, would be doing injustice, and purposeless, since the tenants would continue to do what they were doing. Under these circumstances, I would apply the words used only to those cases where the person sought to be made liable is in a position to prevent the doing of the thing.

9. It is, however, argued by the learned Assistant Government Pleader that there are precedents which have taken a different view and given very wide meaning to the words used in the section. He has invited my attention to the decision of Mr. Justice Datar in Parvatibai Shamji Girdhar v.State (1958) Criminal Revision Application No. 11 of 1958 (Unrep.). The question before him arose under Section 403, Sub-section (1). The owner of a piece of land was prosecuted for permitting private market to be held on it without licence. Her contention that those who held the market were trespassers was accepted by the Court and yet she was convicted. It was held that the owner had not taken reasonable steps to prevent the hawkers holding the market and hence she was liable. It appears that possibly implied permission could be inferred in that case, and if this is so, the decision has no application to the facts of this case. Even otherwise, that decision cannot be treated as an authority for construction of Section 394(7).

10. My attention is then invited to the decision of a Division Bench of this Court in State v. Aishalai.6 In that case the accused landlord had obtained licence for tethering bullocks in the premises, while the tenants kept goats instead and under these circumstances they were convicted for breach of the terms of the licence. The question was whether the owner of the stables was liable to be dealt with under Section 394(1)(c)(iv) for breach of conditions of the licence or whether the liability was only of the occupants of the premises. The landlord was convicted for breach of the terms of the licence. In any event the landlords had obtained the licence and were being prosecuted for the breach of the same. The question here is whether they have any liability to obtain the licence.

11. Reliance is next placed on a judgment reported in the case of State v.Chinubhai Haridas : AIR1958Bom257 , decided by Mr. Justice Vyas and Mr. Justice Palnitkar. That was a case under Section 36(3) and (4) of the Factories Act, wherein the occupier of a factory failed to prevent entry of workers into a pit containing dangerous fumes without breathing apparatus, and in reference to that case, it was held that there need not be a positive act of obtaining permission by the worker or a positive act of granting permission by the occupier or manager. If the occupier or manager acquiesces with the entry, he permits the entry. Even assuming that the principles of construction of such a beneficial statute apply to the provisions in question, I do not see how it could be said that the landlords in the present case did not prevent the tenants from doing what they did though they (the landlords) had no control on the tenants. As I said, I do not see what object would be served by prosecuting the landlords for not obtaining the licence. The purpose of the Act is achieved by prosecuting those who keep these animals much more and much better. It appears, therefore, that the conviction of the accused under Section 394(7)(c)(iv) read with Section 471 of the Bombay Municipal Corporation Act is not justified and must be set aside and the accused acquitted. It is further ordered that if they have paid the fine, the fine should be refunded to them.


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