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Chuni Lal Vs. Corporation of Calcutta - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1933Cal732
AppellantChuni Lal
RespondentCorporation of Calcutta
Cases ReferredLtd. v. Seacome
Excerpt:
- .....the decision of the case referred to above depended upon the interpretation of section 112, public health act 1875, (38 and 39 vict., c. 55) which runs as follows:any person who, after this act', establishes within the district of an urban authority, without their consent in writing, any offensive trade of blood-boiler, or bone-boiler or fell-monger, or soap-boiler or tallow-melter, or tripe-boiler or any other noxious or offensive trade, business or manufacture, shall be liable to a penalty not exceeding 50 in respect of the establishment thereof, and any person carrying on a business so established shall be liable to a penalty not exceeding 40s., for every day on which the offence is continued whether there has or has not been any conviction in respect of the establishment.....
Judgment:
ORDER

Guha, J.

1. The petitioner in this case is the proprietor of an electric mill, by which dal is manufactured at premises No. 3, Sonar Gouranga Temple Lane, in Calcutta. The Corporation of Calcutta, it appears, by a declaration duly made and published in the Local Gazette in the year 1925, notified that no person shall, in the area in which the above premises were situate, use any premises for dal grinding business, carried on by electric, steam or other mechanical power (other than hand power), and a prosecution was started against the petitioner under Section 488(2) read with Section 387(5), Calcutta Municipal Act, for continually working the dal-mill by electricity, in contravention of the declaration published in the Gazette under Section 387. The defence of the petitioner was that Section 387 was not applicable without reference to Section 386(1)(a), in view of the position that dal is not grain according to the interpretation put upon the word by this Court, that the petitioner's business was neither dangerous to public life, health nor property, nor did it create any nuisance as mentioned in Section 386(1)(b); and further, that the declaration by the Corporation of Calcutta, published in the Gazette in the year 1925, could not affect the petitioner's business in question, as it had been established long before the publication of that declaration.

2. It may be mentioned at the outset that it is not necessary for the purpose of this case to consider whether dal was grain within the meaning of Sch. 19(7) referred to in Section 386(1)(a), Calcutta Municipal Act, and the interpretation that the word grain does not include dal may be accepted as correct.

3. The Municipal Magistrate by whom the case against the petitioner was tried has come to the finding on evidence before him, to which reference has been made in his judgment, that dal dust was offensive and injurious to health, and that the dal-grinding business, in regard to which the petitioner was prosecuted, 'gave rise to volumes of dal dust' causing nuisance. The finding so arrived at by the Magistrate has to be accepted for the purpose of the case before this Court now. It is clear therefore that prosecution of the petitioner by the Calcutta Corporation under Section 387(5) was justified in view of Clause (b), Section 386(1), Calcutta Municipal Act, irrespective of Clause (a) and Sch. 19, mentioned in that clause if it were not otherwise invalid. The question for consideration then is whether the declaration by the Calcutta Corporation, to which reference has been made above, could affect the business which was admittedly established and was being carried on from before the declaration. Reliance has been placed by the learned advocate for the petitioner on the case of Butchers' Hide, Skin and Wool Co. Ltd. v. Seacome (1913) 2KB 401, in support of the proposition that where a business was established before the coming into operation of the order declaring it to be an offensive trade, it was not an offence to carry on the business. The decision of the case referred to above depended upon the interpretation of Section 112, Public Health Act 1875, (38 and 39 Vict., c. 55) which runs as follows:

Any person who, after this Act', establishes within the district of an urban authority, without their consent in writing, any offensive trade of blood-boiler, or bone-boiler or fell-monger, or soap-boiler or tallow-melter, or tripe-boiler or any other noxious or offensive trade, business or manufacture, shall be liable to a penalty not exceeding 50 in respect of the establishment thereof, and any person carrying on a business so established shall be liable to a penalty not exceeding 40s., for every day on which the offence is continued whether there has or has not been any conviction in respect of the establishment thereof.

4. This provision contained in the Public. Health Act quoted above was subsequently amended in 1907, by Section 51 of 7, Edw. 7, by the substitution of the words:

Any other trade, business or manufacture which the local authority declare by order confirmed by the Local Government Board and published in such manner as the Board direct, to be an offensive trade,

for the words:

any other noxious or offensive trade, business or manufacture.

5. As observed by Ridley, J., the question which had to be determined in the case was whether the appellants committed an offence in carrying on the business after the making and confirmation of the order declaring the trade to be an offensive trade. Had they carried on a business so established within the meaning of 8. 112, Public Health Act, 1875? In the opinion of the learned Judge (with which Pickford and Avory, JJ., concurred), Section 13 2, as amended, meant that the offence of establishing the offensive business was only committed where business had, at the time of establishment, already been declared by order to be an offensive trade and that a person who was prosecuted for carrying on an offensive business must be found to be carrying on the business so established,' that is to say, established after the order declaring it to be an offensive trade. The interpretation therefore turned upon the expression so established used in Section 112, Public Health Act. The provisions contained in Sections 386 and 387, Calcutta. Municipal Act, have to bo construed according to the ordinary rules of construction, natural meaning and full effect being given to all the words used in the sections, There can be no doubt that an enactment ought not to be construed so as to give it a retrospective operation, especially in the case of a criminal matter, unless the language used indicated such intention in the legislature. The reasonable construction to be put upon the provisions contained in the Calcutta Municipal Act, to which reference has been made above, is that power was given to the Calcutta Corporation in the interest of public health, to prohibit the carrying on a business which was, in the opinion of the Corporation, dangerous to health or likely to create nuisance even though the business might have been established before the intention that no person shall use any premises for any of the purposes mentioned in Section 386, Calcutta Municipal Act, was expressed and before the intention was declared by the publication of the declaration in the 'Calcutta Gazette.'

6. It may be noticed that any other construction of the provisions contained in Sections 386 and 387 would frustrate the primary intention of the legislature in the matter of empowering the Corporation to adopt measures necessary for the public health and in order to prevent nuisance, which, to my mind, has been clearly expressed. The words used in Section 386, Calcutta Municipal Act,' no person shall use or permit to be used, etc.,' and the corresponding words in Section 387 of the Act, that the Corporation may give public notice of their intention to declare that, in any area specified in the notice, no person shall use any premises for any of the purposes referred to in Section 386, Sub-section (1), prescribe no limitation whatsoever as contained in Section 112, Public Health Act, 1875, on which the decision in Butchers' Hide, Skin and Wool Co., Ltd. v. Seacome (1913) 2KB 401, to which reference has been made above, is based in view of the words 'so established' as used in that section and as mentioned already, upon which the learned Judges deciding the case laid stress, in coming to the conclusion that the provision of law as contained in Section 112, Public Health Act, could not apply to a business established before the coming into operation of the order declaring it to be offensive trade. The offensive business or trade is subject, of course, to the general law of the land as to nuisance; but that is no reason why the Corporation should be debarred from taking action under Section 387, Calcutta Municipal Act, in the matter of an offensive business, and perpetuate a state of things that was injurious to public health. In a case like the present individuals affected by the injurious business might have the right to have recourse to the general law of nuisance, but the Corporation had, under the provisions contained in Section 387, the undoubted right to proceed in the manner they have done, quite irrespective of the fact that the business in question was established long before the declaration by the Corporation was made under that section.

7. In the above view of the case, the conviction of the petitioner under Section 387(5), Calcutta Municipal Act, and the sentence passed on him must be upheld. The decision of the learned Municipal Magistrate is affirmed, and this rule is discharged.


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