1. The petitioner has been convicted for the offence under Section 392 of the Bombay Provincial Muinicipal Corporations Act, 1949, and sentenced to pay a fine of Rs. 100. The conviction is based on the finding that the petitioner committed a breach of Section 313, Clause (i), of the aforesaid Act. The facts which arc not in dispute are as follows: The petitioner, before March 30, T956, was conducting a printing press in the name and style of 'Prakash Printing Press' in house No. 1461-62, Raviwar Peth, Poona City, since the year 1934. On March 30, 1956, there was a big fire in that locality and many houses, shops and other establishments, situated in that locality including the printing press of the petitioner, wore completely destroyed. The finding of the learned Additional Sessions Judge, Poona, is that, in the aforesaid fire, the building in which the press was housed fell down completely and that the machinery was completely destroyed, except two treadle machines which escaped the blaze. The further finding is that, thereafter, on or about April 23, 1956, the petitioner constructed a new shed, installed electric installation, purchased some machinery and started the printing press. On the aforesaid facts, both the lower Courts have come to the conclusion that the petitioner had committed a breach of Section 313 of the Bombay Provincial Municipal Corporations Act, 1949. The clause which the petitioner is found to have contravened is Clause (i). In effect, that clause states that no person shall 'newly establish, in any premises, any factory'. The contention of the prosecution is that, by the aforesaid acts, which the petitioner has done, he has newly established a factory in the premises. On the other hand, the contention of the petitioner is that his case comes within the purview of Clause (iii) of Section 313. Under that clause, a person is prohibited from re-opening or renewing a factory after discontinuance thereof for a period of not less than three years. Therefore, the contention of the petitioner is that he has only re-opened or renewed his old factory, and that, as he has done this, within a period of three years, he is not liable under Section 313 of the Act. In my opinion, this is a mixed question of law and fact. If the facts disclose that a particular factory is completely destroyed and that, in substance, a new factory has been brought into existence, then, Clause (i) of the Act comes into operation. If, on the other hand, the facts establish that the factory was not completely destroyed, but that there was only discontinuance of the factory, then, if the factory comes to be re-opened or renewed, the offence will not be committed unless the prosecution shows that discontinuance was for more than three years, or unless the case comes within the proviso to Section 313 of Hue Act.
2. The argument which was advanced by Mr. Kane was that, in spite of the fact that the building and the machinery had been completely destroyed, the factory continued to be in existence. His argument was that the lands on which the factory-building was situated had remained intact, that, at least, two treadle machines had survived, and that the workers of the factory had not been discharged. In support of his argument, Mr. Kane drew my attention to the definition of the word 'factory' as given in the Bombay Provincial Municipal Corporations Act, 1940. That definition refers to the definition of the word 'factory' as given in the Indian Factories Act. In order that there may be a factory, it is necessary that there should be premises, that there should be ten or more persons working on those premises; and that, in any part thereof, manufacturing process must be carried on with the aid of power. The word 'premises' has been defined in the Bombay Provincial Municipal Corporations Act also, and the definition includes a 'land'. Therefore, the argument of Mr. Rane was that a factory does not merely mean a building' in. which the business of manufacturing is being carried on. He contended that, in order that a thing may be a factory, it is necessary that there should be premises, workers and mechanical power, and inasmuch as in the present case the workers had not been, discharged, the land had remained intact, and two machines were saved, the old factory was there and, therefore, it cannot lie said that a new factory had come to be established, In my opinion, it would not be proper to look at the matter piecemeal in. the manner urged by Mr. Kane. A factory is not merely a juxtaposition or a conglomeration of premises, power and workmen, so that if some of these only disappear and one or the other of them happens to survive, a factory is still in existence; but a factory is an organism, an independent unit performing various functions, and in discharge of these functions a part or a function may be so vital in a given case that the question for consideration in each case would be whether, in the circumstances, the parts destroyed are such that the factory must be deemed to be dead or whether the undestroyed parts keep the thing alive in spite of the loss of some of the parts. The test to be applied in each case is to discover whether the functions performed or capable of being1 performed by the un-destroyed parts are such that the factory can efficiently function as a unit and1 can perform the task of producing the final result or product for the production of which, it was erected and for which alone it was intended to exist. In my opinion, the substance of the matter has got to be considered. If, on the evidence, the substance of the matter turns out to be that the old factory has come to be destroyed in the sense that the old factory cannot, in substance, perform its function, then, it would come within the purview of Clause (i) aforesaid. On the contrary, if the substance of the whole matter is that the; factory has not come to be destroyed but it has only come to be discontinued, then, in that case, Clause (Hi) would apply, and, unless the prosecution establishes that the factory was discontinued for more than three, years, a conviction cannot be recorded. In the present case, in my opinion, having regard to all the circumstances, the learned Judges below were justified in holding that what had taken place was that the old factory had substantially disappeared and1 that it did not remain in existence, and, therefore, when the petitioner erected a. new shed, and brought new machinery on the premises,, a factory had come to be newly established.
3. A distinction was sought to be made between the establishment of a new factory and newly establishing a factory. It was contended that Clause (i) applies only to those cases where a fresh factory, which was never in existence, is brought into existence for the first time, and that clause is inapplicable to eases where there was a factory once in existence and a new factory is brought into existence in place of old. I am not in agreement with this submission. In my opinion, that would be putting an unnatural construction upon the aforesaid clauses. Reading Clauses (i) and (iii) together, the substance of the whole matter appears to be that the task in each case is to determine whether the old factory is completely destroyed or whether the old factory has only been discontinued. If the old factory is discontinued, Clause (iii) applies, and, if the old factory is completely destroyed, and a new factory has come into existence, then Clause (i) applies. Therefore, in my opinion, the conviction which has been recorded against the petitioner is correct.
4. [The rest of the judgment is not material to this report.]