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Corporation of Calcutta Vs. North Bihar Saw Mill and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberCriminal Appeal No. 648 of 1965
Judge
Reported inAIR1967Cal64,1967CriLJ171
ActsWest Bengal Fire Services Act, 1950 - Section 38; ;Calcutta Municipal Act, 1951 - Section 437 and 437(3)
AppellantCorporation of Calcutta
RespondentNorth Bihar Saw Mill and anr.
Appellant AdvocateSunil Kumar Basu, Adv.
Respondent AdvocateBratan Banerjee, Adv.
DispositionAppeal allowed
Excerpt:
- .....as required by section 437 of the calcutta municipal act. the defence was that a licence under the west bengal fire services act. 1950 had been taken out in respect of the premises and that under section 38 of the said act no further licence under the calcutta municipal act is required to he taken out. the learned magistrate held that as the present respondents had taken out a licence under the west bengal fire services act they were not required to take out further licence under the calcutta municipal act and it is on this finding that he has acquitted the accused in the case. it is this order of acquittal that is challenged in this appeal.2. mr. basil appearing on behalf of the corporation of calcutta has contended that the view of the learned magistrate appears to be that section 38.....
Judgment:

1. This appeal under Section 417 (3) Cr. P. C. is against the acquittal of the respondents in a case started against them under Section 587/437 (1) (b) of the Calcutta Municipal Act of 1951. The complaint against the respondents was that they were running a saw mill without a licence as required by Section 437 of the Calcutta Municipal Act. The defence was that a licence under the West Bengal Fire Services Act. 1950 had been taken out in respect of the premises and that under Section 38 of the said Act no further licence under the Calcutta Municipal Act is required to he taken out. The learned Magistrate held that as the present respondents had taken out a licence under the West Bengal Fire Services Act they were not required to take out further licence under the Calcutta Municipal Act and it is on this finding that he has acquitted the accused in the case. It is this order of acquittal that is challenged in this appeal.

2. Mr. Basil appearing on behalf of the Corporation of Calcutta has contended that the view of the learned Magistrate appears to be that Section 38 of the West Bengal Fire Services Act has repealed Section 437 of the Calcutta Municipal Act which requires the taking out of a licence in respect of certain premises specified in that section, that this view is erroneous and that it would he incorrect to hold that as a licence under the Fire Services Act was taken out in this case, the respondents were not liable to take out any licence for the premises in question under the Calcutta Municipal Act.

3. Section 38 of the West Bengal Fire Services Act has repealed Section 437 of the Calcutta Municipal Act only in so far as that section authorises the Calcutta Corporation to law fees in respect of premises licenced as a warehouse of workshop under the West Bengal Fire Services Act. Section 437 (1) of the Calcutta Municipal Act requires a licence to be taken out under that section in respect of premises used for purposes enumerated therein. Sub-section (8) of the section authorises the Corporation to fix a scale of fees to be paid in respect of premises licensed under Sub-section (1) and when therefore, Section 38 of the West Bengal Fire Services Act repealed Section 437 of the Calcutta Municipal Act in so far as that section entitled the Corporation of Calcutta to levy fees in connection with the licence granted by them, that repeal must be held to have affected only Sub-section (3) of Section 437 of the Calcutta Municipal Act and not Sub-section (1) thereof. If the entire Section 437 of the Calcutta Municipal Act was meant to be repealed it was not necessary for the legislature to limit the repeal to the power of the Corporation in the matter of levying fees for licences to be granted under that section. In my opinion, what was repealed by Section 38 of the West Bengal Fire Services Act was Sub-section (3) under Section 437 of the Calcutta Municipal Act and not the other two sub-sections of that section.

4. It was urged on behalf of the respondents that when the fees to be levied relate to the licence to be granted in respect of the premises concerned, the repeal of the provision authorising levying of fees should be taken as repeal of the power to grant the licence as well under Section 437 of the Calcutta Municipal Act. Apart from the language used in Section 38(b) of the West Bengal Fire Services Act, this argument cannot he accepted in view of the fact that Section 437 (1) of the Calcutta Municipal Act authorising the Calcutta Corporation to grant licences thereby also authorises that body to refuse to grant licences in particular cases. The Corporation may not want a particular premises in a particular area to be used for a particular purpose and on that ground it may decide to refuse licence for user of the premises concerned for the particular purposes desired. If taking out of a licence under the West Bengal Fire Services Act has repealed the whole of Section 437 of the Calcutta Municipal Act that would mean robbing the Calcutta Corporation of their right to refuse licence in respect of the user of a particular premises for a specified purpose.

5. In view of the above, I find that the learned Magistrate was not justified in his finding that the licence under the West Bengal Fire Services Act taken out by the respondents in this case exempted them from taking out a licence under Section 437 of the Calcutta Municipal Act. The order of acquittal must accordingly be set aside.

6. This appeal is allowed. The order of acquittal passed in the case is set aside and the case is sent back for trial in accordance with law.


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