(1) This is a petition under Art. 226 of the Constitution praying for the issue of a writ of Mandamus directing the Inspector of Factories not to enforce Rule 3 of the Factories Rules in respect of the petitioner's tannery and take further proceedings against the petitioner in pursuance thereof. The facts are these. The petitioner has been carrying on the business of tanning hides and skins in certain premises from 1954. These very premises had been in use as a tannery for the last 35 years. In 1957, the then owner of the premises became an insolvent and the premises were purchased by the petitioner in insolvency proceedings. From 1954 onwards, therefore the petitioner has been carrying on the business of tanning obtaining the necessary licences under the Factories Act. In December 1957, the Assistant Inspector of Labour called the attention of the petitioner to S. 6 of the Factories Act and Rule 3 of the Factories rules and asked the petitioner to submit a site plan, a plan of elevation and section of factory buildings for approval by the Chief Inspector of Factories. Such plans were furnished. The Inspector of Factories did not however approve the plan, stating that the minimum height of the wall should be 8 feet, while it was only 71/2 feet and that certain thatched sheds, which formed part of the factory buildings, were objectionable.
The petitioner pointed out that these buildings had been in use as a factory for the last 35 years, that they had not been erected or reconstructed or remodelled by the petitioner after the coming into force of the factories Act. The petitioner prayed that the plans might be approved. He was however willing to remove the thatched sheds and it has been stated that these thatched sheds have since been removed. The petitioner's request was however not granted and the petitioner was informed by the Chief Inspector of Factories that if the plans were not submitted as required, prosecution would be initiated against the petitioner for contravention of the provisions cited earlier. The petitioner appealed to the Government and pointed out that the rule related only to new constructions or reconstruction or remodelling of existing factories and would not apply to a factory that had been in existence in its present state for several decades in the past. The appeal to the Government had no results. The petitioner thereafter informed the Inspector of Factories that the thatched sheds were being removed and with regard to the height of the wall claimed that as there was no reconstruction or alteration of the existing building, the plans might be approved as they stood. The Department however maintained its stand. A further appeal to the Government was rejected. On the failure of the petitioner to modify the building in the manner stated, the Inspector of Factories filed a complaint in the court of the Sub Divisional Magistrate for contravention of the provisions of the Factories Act.
(2) The short contention advanced by the petitioner is that neither S. 6 of the Act nor Rule 3 of the rules passed thereunder would apply to the instant case. The claim is that the rule making power conferred by S. 6 relates only to new factory buildings or the extension or modification of the old factory buildings and cannot apply to factory buildings which existed prior to the passing of the Factories Act 198. To apply the provision in the manner sought to be done by the Department virtually amounts to putting out of business numerous factories of this description. The fact that this building has been in use as a factory for several years is also referred to by the petitioner. It is again urged that R. 3 is so broadly worded that it confers what virtually amounts to an arbitrary power upon the authority to grant permission in one case or to refuse permission in another. This rule is also attacked as violative of Art. 14.
(3) The facts set out are not denied in the counter-affidavit of the respondent. It is only contended that the mere circumstance that the building had been in use as factory for 35 years or the delay in taking steps under the Factories Act cannot confer any right upon the petitioner to use the building as a factory in contravention of the provisions of the Act. It is claimed that R. 3 which gives the power to refuse or to give permission naturally requires examination of the plans with a view to see whether the building is in conformity with the requirements prescribed. Certain standards are said to have been prescribed in 1961. It is accordingly urged that the power conferred by Rule 3 is not arbitrary as alleged.
(4) The question really turns upon a proper interpretation of S. 6 of the Act, and Rule 3 of the Factories Rules. Section 6 reads thus:
'Approval licensing and registration of Factories:
(1) The State may make rules--(a) requiring previous permission in writing of the State Government or the Chief Inspector to be obtained for the site on which a factory is to be situated and for the construction or extension of any factory or class or description of factories; (b) requiring for the purpose of considering applications for such permission the submission of plans and specifications;
(c) prescribing the nature of such plans and specifications and by whom they shall be certified;
(3) Where the State Government or the Chief Inspector refuses to grant permission to the site, construction or extension of a factory, or the registration and licensing of a factory, the applicant may within 30 days of the date of such refusal appeal to the Central Government, if the decision appealed from was of the State Government and to the State Government in any other case.'
The rule making power so conferred by this section finds expression in so far as that aspect is concerned in Rule 3 of the Madras Factories Rules 1950. This reads:
'Approval of site, construction or extension of a factory--(1) No site shall be used for the location of a factory nor shall any building be constructed or reconstructed or extended for use as a factory, nor shall any manufacturing process be carried on in any building constructed, reconstructed or extended without the previous permission in writing of the Chief Inspector. The previous permission of the Chief Inspector shall also be obtained for the installation of additional machinery or for installation of prime movers exceeding the horse power already installed in the factory.'
The further parts of this rule deal with the nature of the plains that should be submitted for obtaining the permission indicated in Rule 3(1) above.
(5) Both the section and the rule as they stand purport to deal with the construction of new factories. They start with the position that an approval has to be obtained in respect of the site on which the factory is to be situated. The section states that the previous permission has to be obtained for the site on which the factory is to be located. Equally the rule lays it down that no site shall be used for the location of a factory without the previous permission in writing of the Chief Inspector. Neither the section nor the rule thus appears to deal with the case where a factory is already in existence. The section does not apparently require that in the case of a factory which was in existence, the approval of the site should be sought after the coming into force of the Act. No provision in the act has been shown to me which requires that even in the case of existing factories, by which term I mean factory buildings, which were in use prior to the passing of this Act, the approval with regard to the site should be taken. It is also not denied that even after the passing of the Act, the authorities concerned were granting licences to these buildings and permitted these buildings to be used was factory. It is seen that it was only in 1959 or 1961, it is not quite clear, that any specifications with regard to the nature of the construction were prescribed by the appropriate authorities. This fact is mentioned in the counter affidavit in these terms:
'In G. O. No. 3750 Industries, Labour and Co-operation, dated 22-5-1961, certain standards were laid down for buildings used for factories and in G. O. Ms. 834, Industries, Labour and Co-operation dated 25-2-1959, certain standards with special reference to tanneries have been prescribed'.
It is clear, therefore, that it was not till 1959 that any specifications with regard to tanneries were at all prescribed. The question then is whether the pre-existing factories could be condemned by resort to S. 6 and Rule 3.
(6) I am unable to read S. 6 and Rule 3 as conferring any such power upon the appropriate authority. The section in terms provides for the obtaining of a previous permission for the site on which the factory is to be situated and for the construction or extension of any factory. The submission of plans and specifications is intended only for that purpose. This section contemplates a position when the factory is to be erected in the future or an extension of an existing factory is contemplated. In so far as such extension is not in accord with any specifications prescribed, the concerned authority may refuse permission for such extension. But, where a factory had been in existence and no previous permission for the site or the construction of the factory was required, this section does not enable the appropriate authority to demand that the owner of the factory should obtain the approval of the appropriate authority for the site of the plans of the factory buildings.
(7) The department appears to have relied upon R. 3 which, while repeating the content of S. 6, includes some further restrictions. The relevant part of the rule reads:
'Rule 3. Approval of site, construction or extension of factory: 1. No site shall be used for the location of a factory, nor shall any building be constructed, reconstructed or extended for use as a factory, nor shall any manufacturing process be carried on in any building constructed, reconstructed or extended without the previous permission in writing of the Chief Inspector.................' The Department seems to claim that the latter part of this rule, which prohibits any manufacturing process being carried on in any building constructed without the previous permission on writing of the Chief Inspector covers the present case. But the previous permission that is contemplated by this part of the rule relates to a case where the factory itself is constructed after the coming into force of this Act and the Rules. This rule cannot go beyond the scope of the Act itself and unless the Act enjoins a prohibition against the continued existence of factories, such factories like the present one, the rule cannot be invoked for the purpose. It would be recalled that even the specifications with regard to the building appear to have been prescribed only as late as in 1959. How they could be made applicable to factories which had been in existence for decades in the past, I am unable to see. According to the Department, the required minimum height of the roof is said to be 8 feet, while the petitioner factory's premises has a roof of a height of only 71/2 feet. If the requirement is absolute and the factory cannot run unless its roof is raised to that height, it seems that the factory will have to be demolished and rebuilt. It may be that this minimum height was required to safeguard the health of the workers. But I am at a loss to imagine how a rule so lately introduced can be enforced against establishments which had all along been carried on with the permission of the authorities. Both the section and the rule clearly apply only to factories that are to come into existence in the future and their application to existing factories is not contemplated.
(8) I am aware that such specifications as have been prescribed are intended for the benefit of the workers. It may be open to the authorities to refuse a licence for the working of the factory or it may be open to them to demand that instead of demolishing the building and raising the height of the roof, such additional amenities as larger windows or the like, should be provided. But what I am unable to agree with is that by resort to S. 6 and Rule 3 the Department can prevent the working of the factory. That section and that rule do not concern the power sought to be exercised in the present case.
(9) It follows that the petition succeeds. The rule is made absolute. There will however be no order as to costs.