W. Comer Petheram, C.J. and Rampini, J.
1. The petitioner Beni Madhub Nag has been convicted under bye-law 83 of the bye-laws of the Howrah Municipality for failing, in pursuance of a notice issued to him, to cut certain branches of a tree belonging to him which are alleged to overhang a tank belonging to a private individual and to be likely to foul its water. He has been sentenced to pay a fine of Rs. 5.
2. Mr. Ghose on behalf of the petitioner contends that this bye-law which purports to have been framed under the provisions of Section 313, Bengal Act V of 1876, is not warranted by the provisions of that section, and therefore cannot be legally enforced.
3. The bye-law runs as follows: (see ante p. 838).
4. Now, on looking at the provisions of Section 313 of Bengal Act V of 1876 it is clear that this bye-law is not one such as the Commissioners of Municipalities were authorised to frame under this section. Section 2 of Bengal Act III of 1884 no doubt lays down that all bye-laws prescribed under any enactment repealed by that Act shall be deemed to have been prescribed under that Act, and this bye-law 83 has undoubtedly been prescribed and sanctioned by the local Government under Bengal Act V of 1876. But Mr. Ghose contends that the word 'prescribed' in Section 2 of Act III of 1884 must mean 'duly' or 'lawfully prescribed,' and that Section 2 of Act III of 1884 cannot make intra vires under Section Ill of 1884 a bye-law which is obviously ultra vires under Act V of 1876. This argument appears to us to be sound, and we think the objection raised is fatal to the conviction. We accordingly set it aside and direct that the fine, if paid, be refunded.