1. The accused Laxmanrao Namdeorao Somwanshi is the owner of a factory for casting metal at 32-33 Gul Tekadi, Poona. The Municipality of Poona has licensed the setting up of that factory for six bhattis for casting metal. It appears that thereafter the accused installed additional machinery such as pressing machines, grinding machines etc. without obtaining the permission of the Municipality. The Municipality thereupon prosecuted the accused for offences under Section 313 and Section 376 of the Bombay Provincial Municipal Corporation Act of 1949.
The learned trial Magistrate acquitted the accused of the offence under Section 376 as the requisite license was produced by the accused before him. The learned trial Magistrate however convicted the accused of an offence under Section 313 of Bombay Provincial Municipal Corporation Act of 1949 because in his view the setting up or installing of machinery by the accused must be deemed to be an infringement of the provision of Section 313 of the Act.
In the view of the learned trial Magistrate even if a permission is asked for by a person seeking to use additional machinery, and the Municipal Commissioner does not dispose of that application, the installation of additional machinery, in an already existing factory before the disposal of the application would amount to an offence under Section 313, Clause (1), item (iv) of the Act.
On that view of the case the learned trial Magistrate convicted the accused of an offence under Section 313 (1) (iv) of the Act and sentenced him under Section 392 of the Act to pay a fine of Rs. 50/- and in default of payment of fine to suffer simple imprisonment for two weeks. The accused preferred an application in revision to the Court of Session against the order of conviction and sentence. In revision the learned Sessions Judge expressed the view that the accused could not be regarded as having committed an offence under Section 313(iv), but in his view the conviction of the accused under Section 313 (i) was justified.
2. Now Section 313(i) of the Act of 1949 pro-vides that 'no person shall newly establish in any premises any factory, workshop or workplace in which it is intended to employ steam, water, electrical or other mechanical power or any bakery except with the previous written permission of the Commissioner'. Evidently the accused has not newly established any factory, workshop or workplace in any premises.
The factory is already existing, and that factory has been licensed by the Municipality and in my judgment addition of new machinery to the already existing factory by itself cannot amount to infringement of the requirement of Section 313(i).
3. The conviction of the accused under Section 313(i) of the Bombay Provincial Corporation Act of 1949 is therefore set aside and the accused is ordered to be acquitted. The fine, if paid, be refunded.
4. Conviction set aside.