Debabrata Mookerjee, J.
1. This Rule is directed against an order of acquittal made by the Municipal Magistrate of Howrah on 31-3-1955. The opposite party was prosecuted for unauthorised construction and completion of masonry structure on the 1st floor of her premises ignoring a notice served upon her under Section 365(1), Calcutta Municipal Act as extended to Howrah.
Three witnesses were examined on behalf of the prosecution but no one was called on behalf of the defence. The learned Magistrate thereafter proceeded to judgment by which he acquitted the opposite party, not on the merits, but upon a view of the law which he took to which I am about to refer.
2. The defence attempted to avail of two objections to the validity of the proceedings. In the first place, it was held that the present prosecution was barred by time; and it having been instituted beyond the period limited by the law for prosecution of an offence under the Municipal Act, the proceedings were not maintainable. Upon this point, it is to be observed, the learned Magistrate recorded no finding although the point was noticed aa having been raised by the petitioner.
3. The other ground which appears to have been argued at some length before the learned Magistrate seems to be that in view of the provisions contained in the Calcutta Municipal Act 1923 as extended to Howrah, the present proceedings were not maintainable. In law, the argument advanced before the learned Magistrate and accept, ed by him was that the area in which the offending premises stood was added to the Municipalityof Howrah by a notification issued under Sections 8(c) and 10, Bengal Municipal Act.
It was said on behalf of the opposite party that the prosecution not having been able to produce any notification to show that the provisions of the Calcutta Municipal Act as extended to Howrah have also been extended to the added area on which the premises in question stood, the present prosecution could not be gone on with.
This view appears to have prevailed with the Magistrate who thought that there was considerable substance in the contention raised. It was held that there was necessity of a notification in the absence of which powers could not be exercised under Section 365 of the Act as extended to Howrah. Upon these findings the learned Magistrate came to the conclusion that the proceedings had been misconceived and in that view he acquitted the opposite party.
4. Mr. Chatterji appearing on behalf of the Municipality has contended that the order of acquittal has been made upon a misconception of the law applicable to the Municipality of Howrah. It has been argued that the provisions of the Calcutta Municipal Act including Section 365 of that Act have been bodily incorporated in the Calcutta Municipal Act, 1923 as extended to Howrah.
That being so, power has been given to the Municipality to stop progress of building work unlawfully commenced or carried on. Reference is then made to the provisions of Section 544 which deals with the question of inclusion of a new area within the Municipality limits of Howrah.
5. Clause (b) of Sub-section (1) Section 544 provides as follows:
'Section 544 (1) When a new area is included within the limits of the Municipality of Howrah, under the Bengal Municipal Act, 1884, then- (b) Except as the Provincial Government may otherwise, by notification in the Official Gazette, direct, all rules, by-laws, regulations, orders, directions, and powers made, issued or conferred under the Calcutta Municipal Act, 1923, as in force in the Municipality of Howrah and under the Bengal Municipal Act, 1884, and in force at the date of the inclusion shall apply to the said area, in supersession of all corresponding rules, by-laws, regulations, orders, directions and powers (if any) made, issued or conferred under the Bengal Local Self. Government Act of 1885, or the Bengal Village Self-Government Act, 1919, as the case may be'.
Clause (a) of Sub-section (1) of Section 544 provides that after an area has been included within the limits of the Municipality of Howrah the Bengal Local Self-Government Act of 1885 or the Bengal Village Self-Government Act, 1919, as the case may be, if in force in such area, shall be deemed to be repealed therein.
6. The result of these enactments is that if power has been exercisable under the Calcutta Municipal Act as extended to the Municipality of Howrah then in the absence of a notification in the official Gazette to the contrary the power so exercisable under the Calcutta Municipal Act will be equally exercisable under the Calcutta Municipal Act as extended to Howrah. The only relevant question in this case is whether Section 365 has or has not been extended to the Municipality of Howrah.
There can be no doubt that Section 365 has been extended. The question then remains whether power given under Section 365 to the Municipality of Howrah is a power the exercise of which is sanctioned under Section 544 (1) (b) of the Act.
There cannot be the slightest doubt that such power can be exercised and the learned Magistrate appears to have misdirected himself in thinking that it required a notification to be issued by the State Government for the exercise of power under that section.
7. Mr. Pyne in opposing the Rule has contended that the power mentioned in Clause (1) (b) of Section 544 is to be construed as a power exercisable under a rule made or notification issued under the Calcutta Municipal Act as extended to Howrah and it cannot mean power given to the Municipality of Howrah under the provisions of the statute itself. I am afraid I cannot agree with this contention.
It seems to me that the words used are quite wide and without qualification; and when the legislature thought fit to confer on the Municipality powers under Section 365, Calcutta Municipal Act, 1923 as extended to Howrah, those powers may well be exercised by the Municipality of Howrah. There is no occasion whatever for the issue of a notification authorising the exercise of such power.
Returning to the principal point which I indicated above that, the real question seems to be whether Section 365 has or has not been extended to the Municipality of Howrah, that section having been bodily incorporated and made applicable to that Municipality, I think there is nothing in the law to prevent the exercise of power given under that section.
8. The result therefore is that this Rule is made absolute and the order made by the learned Magistrate acquitting the opposite party of the charge of offence framed against her is set aside and the matter is remanded to be dealt with by the learned Magistrate in accordance with law.
9. It is to be observed that although the pointof limitation was raised by the petitioner at the trial, no finding was recorded or reached by the Magistrate in that behalf. Mr. Pyne urges that the point of limitation is patently clear. I think in the interests of justice I should direct that itwould be open to the Magistrate when the casegoes back on remand to consider the question oflimitation along with other questions that mightproperly fall to be considered by him.