1. This rule arises with reference to the conviction of the General Manager of the Bast Indian Railway tinder Section 14, Licensed Warehouse and Fire Brigade Act of 1893. A complaint on behalf of the Howrah Municipality was originally filed on 31st March 1939 against the Superintendent, Way and Works, Bast Indian Railway. It appears however that, in a similar case in respect of the year 1937-38, it had been pointed out by the trial Court that the proper person against whom proceedings should be taken was the General Manager of the East Indian Railway. The latter case was decided on 22nd August 1939 and it was on account of that decision that, on 10th April 1940, the General Manager of the East Indian Railway was substituted in the present case for the Superintendent, Way and Works. In the judgment of the learned Magistrate which is dated 28th June 1940, the General Manager was found guilty under Section 14 Licensed Warehouse and Fire Brigade Act of 1893 and was ordered to pay a fine of Rs. 20 for not having taken out a license as required by the relevant provisions of that Act and was further directed to pay a daily fine of Re. 1 until the sum of Rs. 1500 said to be due to the Municipality of Howrah had been paid. Admittedly, it was sought to prosecute the General Manager of the East Indian Railway not in his personal capacity but as the representative of the railway, and one of the main points which learned Counsel on behalf of the petitioner has sought to establish is that the prosecution was misconceived. In this connexion, Mr. S. M. Bose contends that there is no provision in the Railways Act (Act 9 of 1890) or any other law, under which it is possible to prosecute the Bast Indian Railway through its Manager. He maintains that, if it had been necessary to institute a prosecution in respect of an alleged breach of the Licensed Warehouse and Fire Brigade Act, proceedings should have been taken either against the General Manager personally or against such other person who might have been actually responsible for the alleged breach and that the requisite sanctions under Section 270, Government of India Act, 1935 and Section 197, Criminal P.C., should have been obtained.
2. Mr. Bose further argues that, in view of the provisions of S.7, Railways Act, the railway is entitled to construct such warehouses as it may require and it follows from this provision that the railway has an unfettered right to use such warehouses after their construction, which cannot be restricted by any authority conferred upon a Municipality by a local Act such as the Licensed Warehouses and Fire Brigade Act of 1893. He, therefore, contends that the provisions of the latter Act are inapplicable in the case of a railway. Mr. Boss's further main contention is to the effect that, in any view of the case, the license fee demanded by the Howrah Municipality is a tax which has not been mentioned in any notification under S.135(1), Railways Act. This being the case, he argues that the railway was quite justified in refusing to pay the fee and was not required to take out a license under the Licensed Warehouse and Fire Brigade Act. Learned Counsel for the petitioner also pointed out that, in any event, the daily fine which was imposed by the learned Magistrate was illegal having regard to the anticipatory nature of the order. In support of this last contention, he relied on the cases in Ram Krishna Biswas v. Mohendra Nath (1900) 27 Cal 565, Nilmani Ghatak v. Emperor('10) 37 Cal 671 and Prabhu Ram v. Emperor ('37) 24 AIR 1937 Lah 155 It may be mentioned in passing that on this point Mr. S. K. Basu, on behalf of the opposite party, admitted that the order as regards the daily-fine could not be supported. The first main point for consideration in connexion with this case is whether the prosecution was misconceived by reason of the fact that it was directed against the General Manager of the Bast Indian Railway. As already stated, it is admitted that it was not sought to prosecute the General Manager in his personal capacity but it was the intention to prosecute the Bast Indian Railway under the name and description of the General Manager of the railway.
3. Mr. Bose contends that the course which was adopted was illegal. He points out that the Bast Indian Railway is a State Railway and that it is vested in the Governor-General in Council. He argues that a State Railway cannot be a legal entity and, although it is possible in civil cases to sue the railway through the Governor-General in Council under the provisions of S.79, Civil P.C., he contends that it is impossible to take criminal proceedings against a State Rail-way as the Governor-General in Council cannot be prosecuted in the criminal Courts. Mr. Basu on behalf of the Municipality admits that the criminal Courts in this country would have no jurisdiction over the Governor-General in Council, but he relies on the provisions of certain sections of the Railways Act for the purpose of showing that it was intended by the Legislature that in the matter of criminal prosecutions a railway administered by the Government should be placed in precisely the same position as a railway administered by a railway company. There can of course be no doubt that a company may be prosecuted in a suitable case. This was the effect of the English decisions in Tyler's case, Queen v. Tyler and International Commercial Co., Ltd (1891) 2 Q B 588 at p. 592 and the case in Pharmaceutical Society v. London & Provincial Supply Association (1880) 5 A C 857. These decisions were followed by the Rangoon High Court in Rangoon Electric Tramway & Supply Co., Ltd. v. Emperor ('33) 20 AIR 1933 Rang 70, in which Page C. J. observed that a company is a legal entity, and, where a duty is imposed upon it by statute the breach of which is made an offence, unless there is anything to the contrary expressed or implied in the statute, a company can be convicted of an offence. The learned Chief Justice was however careful to point out that a company cannot be sentenced to a term of imprisonment 'for the best of all reasons that a company is not endowed with a physical body that can be confined.' Of course, there are certain cases in which it would be impossible to prosecute a company, for example, in connexion with murder or other offences involving personal violence: Rex v. Cory Bros. & Co (1927) 1KB 810. It is nevertheless clear from the provisions of Sections 2 and 11, Penal Code, that companies are liable to punishment in suitable cases and it also follows from Section 3 (5), Licensed Warehouse and Fire Brigade Act of 1893, read with Section 14 of that Act, that ordinarily a company which used an unlicensed warehouse would render itself liable to prosecution under that Act.
4. It follows from what has already been stated that in my opinion there would ordinarily be no difficulty in prosecuting a railway company in a suitable case in respect of a breach of a statutory provision for which a penalty had been provided, but it must be considered whether a State Railway occupies a more favourable position with reference to such matters. With regard to the question of the validity of the prosecution in the case out of which this rule arises it appears to have been the intention of the Legislature in enacting the Railways Act (Act IX of 1890) to treat railways administered by the State in the same way as company railways. Section 3 (6) of the Act provides that 'railway administration' or 'administration' in the case of a railway-administered by the Government or a Native State, means the manager of the railway and includes the Government or the Native State, and, in the case of a railway administered by a railway company, means the 'railway company.' This section appears to mean that the manager of a State Railway will represent that railway to the same extent as the company represents a railway administered by that company. In the later sections of the Act, the functions of the 'railway administration' are described in considerable detail. According to the general scheme of the Act, it is the railway administration which is generally responsible for all matters connected with the railway, subject to control by such statutory authorities as the federal railway authority, the safety controlling authority and the general controlling authority. It is true that the first part of Chap. 9, which deals with certain forfeitures on failure to comply with various provisions of the Railways Act, only relates to railway companies. These sections however concern forfeitures to one or other of the controlling authorities under which all railways carry on their business and, as these authorities are themselves branches of the Central Government, it was probably thought unnecessary to make any provision in respect of these matters in the case of Government railways as the same effect could be ensured by departmental action.
5. Section 76, Railways Act, deals with suits against a railway administration for compensation for loss, destruction or deterioration of animals or goods. Section 80 refers to the liability of a railway administration with regard to certain injuries and losses. There are many other provisions of the same nature relating to the duties, functions and liabilities of the railway administration. There is, of course no doubt that, with reference to all these matters, a railway company would be acting as a legal entity and, in my view, the scheme of the Act contemplates that the manager of a state railway should be regarded as acting in the same way with reference to all matters with which the railway administration is empowered to deal or in respect of which that administration has any liability under the Act. The Legislature has declared by Section 3(6) of the Act that the manager and the company respectively are the same thing as the rail-way administration and, in these circumstances, as a railway company is a legal) entity, I regard the manager as representing a state railway as a legal entity in the same degree as a railway company is such an entity. It would therefore follow that, as in suitable cases it would be possible to prosecute a railway company, it would also be legal to prosecute a manager as representing a railway administered by the Government. In this connexion, it may be mentioned that Section 145, Railways Act, seems to contemplate criminal proceedings being taken against the manager of a state railway in a representative capacity and, in such a case, the manager is empowered by an instrument in writing to authorise any railway servant or other person to act for or represent him in any proceeding before a criminal Court.
6. In view of the above considerations, it cannot be said that the prosecution of the manager of the East Indian Railway in the present case was misconceived by reason merely of the form of the complaint. It was not sought to enforce against him personally any criminal liability which he had incurred in his personal capacity but merely to prosecute the railway administration for having failed to comply with the provisions of the Licensed Warehouse and Fire Brigade Act. It follows that in the present case Section 197, Criminal P.C., and Section 270, Government of India Act, 1935, can have no application. Both these sections come into operation in the case of certain public servants in cases in which proceedings are taken against such persons personally in respect of acts done or purporting to be done in the execution of their official duties. In this case the position of the manager is similar to that of the municipal corporation in Empress v.. Municipal Corporation of the town of Calcutta ('78) 3 Cal 758, in which it was held that the corporation might be prosecuted without the preliminary sanction of Government. It must however be considered whether an offence under the Licensed Warehouse and Ere Brigade Act is one in respect of which a manager of a state. railway may be legally prosecuted in his representative capacity. The answer to this question depends mainly upon the construction of Sections 7 and 47, Railways Act. Section 7 is included in chap. 3, Railways Act, which relates to the construction and maintenance of works. It provides that
subject to the provisions of this Act....a railway administration may for the purpose of constructing a railway or the accommodation or other works connected therewith, and notwithstanding anything in any other enactment for the time being in force...(d) erect and construct such houses, warehouses, offices and other buildings . . . as the railway administration thinks proper .... and (f) do all other acts necessary for making, maintaining, altering or repairing and using the railway.
7. Section 47 is included in ch. 6 of the Act, which relates to the working of railways. It provides that:
Every railway company and, in the case of a railway administered by the Government, an officer to be appointed by the general controlling authority in this behalf, shall make general rules consistent with this Act for the following purposes namely...(f) for regulating the terms and conditions on which the railway administration will warehouse or retain goods at any station on behalf of the consignee or the owner; and (g) generally for regulating the travelling upon, and the use, working and management of the railway.
8. In this connexion, it may be noted that under Section 3 (i) of the Act a 'railway' means
a railway or any portion of a railway, for the public carriage of passengers, animals or goods and includes...(c) all stations, offices, warehouses ....and other works constructed for the purpose of or in connexion with a railway.
9. From the above-mentioned provisions of the Railways Act it is clear that the railway administration has power to erect and use such warehouses as may be necessary to it in connexion with the construction of the railway and that it has this power irrespective of any provisions to the contrary which may be contained in any other enactment. If, therefore, the railway warehouses, at 4 Grierson Road, Howrah, were being used for the storage of materials for the construction or maintenance of the railway, there can be ho doubt that the statutory right of the railway to use these warehouses could not be curtailed by the provisions of another enactment such as those of the Licensed Warehouse and Fire Brigade Act of 1893 (Bengal Act 1 of 1893). Admittedly, however, these warehouses were being used for the purpose of storing customers' goods in connexion with the ordinary course of the railway's business, and it remains to be seen whether this is a circumstance which would bring the railway within the scope of the above mentioned local enactment. The relevant provisions of Bengal Act 1 of 1893 in connexion with the point at present under discussion are as follows:
Section 3 (8). 'Warehouse' means any building or place used for the storing, pressing, or keeping of jute, cotton, resin, varnish, pitch, tar, hay, straw, rags, tallow, wood or other inflammable substance or thing for the time being subject to the operation of this Act.
Section 4, Ho building or place shall be used as a warehouse, unless the owner or occupier thereof shall have previously obtained a license from the Commissioners for such use under this Act.
10. Section 6 provides that any person proposing to use any building or place as a warehouse within the area to which this Act applies shall send to the Chairman of the Commissioners a plan in duplicate together with certain particulars' and this section further enacts that
thereupon it shall be within the discretion of the chairman of the commissioners to grant a license from the commissioners therefor as a warehouse under this Act subject to the payment to the commissioners of such annual fee as is hereinafter provided or to refuse a license for the same : Provided that when a license is refused the reason for such refusal shall be recorded in writing.
11. Section 8 provides that licenses under Section 6 may be either permanent or for a term of years and shall be subject to the following conditions:
(1) That the warehouse shall at all times be open to the inspection of an officer appointed by the Commissioner of Police. Such officer shall be a member of the fire brigade, but shall not be a member of any police force; (2) that the annual fee imposed in respect thereof be paid in advance.
12. Section 10 provides for the amount of the fee and Sections 12 and 13 make certain provisions relating to the cancellation of licenses by a Magistrate. The relevant penalty clause is Section 14 which provides that
any person who, without taking out a license, uses any building or place as a warehouse shall be liable on conviction before a Magistrate to a penalty not exceeding Rs. 50 for each day during which he may so use or continue to use such warehouse.
13. It is clear from the nature of the above-mentioned provisions that if they are intended to apply to railways it might be possible for the municipal commissioners to whom Bengal Act 1 of 1893 applies and also for a Magistrate seriously to impede the normal business operations of a railway in respect of the storage of its customers' goods and it is therefore a matter of considerable importance to decide whether these provisions are applicable in the ease of a railway which is being run as an ordinary business concern. It is argued by Mr. Basu on behalf of the Howrah Municipality that although the Legislature may have intended to afford to railways a special measure of protection from the operation of local enactments as regards matters connected with their construction or maintenance, it must have been intended that when a railway is being worked in the ordinary course of business such railway should not be exempted from the necessity of taking out licenses for the use of its warehouses for storing the goods which are specified in Section 3 (8) of Bengal Act. 1 of 1893. The learned advocate contends that some measures of control and inspection by the authorities specified in the latter Act is necessary for the protection and safety of the general public and in support of his contention he places particular emphasis on the fact that in Section 47 of the Railways Act of 1890 the words 'and notwithstanding anything in any other enactment for the time being in force' have been omitted .
14. In my opinion, the omission of the words in Section 47 of the Railways Act to which Mr. Basu refers has very little significance. In that section it is provided that in the case of a railway administered by the Government the general working of the railway should be regulated by rules consistent with the Act made by an officer to be appointed by the general controlling authority which under Section 3 (22) of the Railways Act means the federal railway authority. The latter authority has not yet been established so it follows from Section 3 (18) (b), General Clauses Act, 10 of 1897, as recently adapted under Section 293, Government of India Act, that all the powers vested by the Railways Act in the federal railway authority, the general controlling authority or the safety controlling authority must now be exercised by the Central Government. The scheme of the Railways Act is that all railways administered by Government should work under the immediate and general administrative control of the Central Government. Even as regards company railways, although the immediate control is in the hands of the company, the general control is in the hands of the Central Government by reason of the provision in Section 47 (3) of the Railways Act to the effect that a rule made under this section shall not take effect until it has received the sanction of the general controlling authority and the safety controlling authority and been published in the Official Gazette.
15. As it is the Central Government which has been given authority under Section 7 (2) of the Railways Act to control all matters relating to the construction and maintenance of railways, so also it is intended by Section 47 that the Central Government should control generally the ordinary operations of a railway after it has been established, including the storage of goods of every description in railway warehouses. It would clearly be inconsistent with the general scheme of the Railways Act that the central control which that Act contemplates should be shared between the Central Government and some local authority as the exercise of any controlling power by a local authority might lead in certain cases to the frustration of the object with which a railway had been constructed. Although the case in Municipal Commrs. of Bombay v. G.I.P. Ry. Co ('10) 34 Bom 252 only related to the question whether it was necessary for the railway to take out a license in respect of certain premises which were used for the storage of sleepers, that is for materials used for the maintenance of the railway, the report nevertheless shows that the learned Chief Justice recorded an observation to the effect that the provisions of the Railways Act to which we have referred provide, we think, for an undivided and exclusive control of railway administrations by the Supreme Government.
16. With this observation I agree. In England railways are usually constructed under the authority conferred upon a railway company by a special Act of Parliament, but such special Acts are deemed to embody the provisions of certain consolidated Acts relating to railways such as the Railway Clauses Consolidation Act of 1845, upon which the provisions of the Indian Railways Act of 1890 are largely based. The position as regards Indian railways, which have been constructed under the control of the Central Government and under the authority of the relevant provisions of the Railways Act, does not differ materially in its most important legal aspects from that of railways which have been constructed in England under a special Act of Parliament. The English rule with regard to the special powers of railways, which conflict with general statute law, has been stated in the following terms in Halsbury's Laws of England, Edn. 2, Vol. 27, page 13:
Where the exercise of the powers conferred by the special Act would be in conflict with the provisions of some other statute, the rule of construction is that a general enactment does not abrogate a special enactment merely by implication, even if the general enactment is of later date. For example, if a railway company is empowered by special Act to erect and maintain such houses and other conveniences as they think proper, and by a general Act the local authorities are also empowered to regulate by bye-laws the erection of houses and the maintenance of sanitary conveniences, the powers conferred on the local authorities will not be allowed to interfere with the discretion conferred on the railway company.
17. Effect was given to this principle in London and 'Blackwall Ry. Co. v. Board of Works for the Limehouse District (1857) 3 K & J 123, Metropolitan Ry. Co. v. London County Council (1913) 2 K B D 249, City and South London Ry. Co. v. London County Council (1891) 2 Q B 513. Although the case in London County Council v. School Board for London (1892) 2 Q B 606 related to an inconsistency between the Metropolis Management and the Buildings Amendment Act and the Elementary Education Act of 1870, the principle upon which the decision proceeds is the same. The principle which seems to have been followed in the above-mentioned decisions is that, where there is a special statute which regulates the activities of a general utility service, the functions of such service must be deemed to be unrestricted by any general enactment the terms of which are inconsistent with those of the special enactment, unless the Legislature has made it clear in express terms that it intended to restrict such functions. As was observed by Lord Halsbury in the case in L. B. & S. C. Ry. Co. v. Truman (1886) 11 AC 45 at p. 51:
It would be strange, indeed, if the legislature could be supposed to have authorised the railway to commit a nuisance up to a certain point, to have provided machinery for extending the railway and its use beyond that point, and yet to have allowed the further user to be open to an action to restrain its use.
18. Further, it must, of course, be remembered that the Railways Act of 1890 is a Central Act and, in a matter of this sort, the local Legislature had no authority to enact provisions relating to railways which were inconsistent with those of the Central Act. In my opinion, it could not have been the intention of the Bengal Legislature to make applicable to railways the provisions of Bengal Act 1 of 1893, which have already been quoted. It follows, therefore, that it was not incumbent on the railway to take out a license for their warehouse at No. 4, Grierson Road, Howrah under the provisions of Bengal Act 1 of 1893 and no tax is payable by the railway on this account. These provisions if applied to railways would result in a division of control between the Central Government and the local authorities, which would be entirely inconsistent with the main scheme of the Railways Act. I am further of opinion that the railway is protected under the provisions of Section 135, Railways Act. This section provides that
a railway administration shall not be liable to pay any tax in aid of the funds of any local authority unless the general controlling authority has by notification in the official Gazette, declared the railway administration to be liable to pay such tax.
19. Mr. Basu on behalf of the Howrah Municipality attempted to argue that the license fee prescribed by Bengal Act, 1 of 1893 was not a tax. With this contention I am unable to agree. It might, of course, be argued that certain fees payable for special services rendered would not be taxes, for example, fees for the supply of copies of registration certificates or special charges incurred on account of the cleansing of private drains might be regarded in some cases as being outside the category of taxes. But the case of a license fee payable in respect of a warehouse under the provisions of Bengal Act, 1 of 1893 is of a different nature. It is clear from the provisions of the Act that this fee is leviable from certain persons who have business of a particular character within the municipal area concerned and it is levied in order that it may be appropriated towards cost of the fire brigade (see Section 24 of Bengal Act, 1 of 1893). It cannot be contended that the mere use of the word 'fee' in the Act means that the license fee should not be regarded as a tax. The expression 'fee' is used in several clauses in the Calcutta Municipal Act, 1923, in connexion with taxes. For instance, in Section 175 the term 'fee' is used in connexion with taxes on professions, trades and callings and it is again used in S.184 which appears in the chapter which deals with taxes on carts. Fees under Bengal Act, 1 of 1893 are clearly leviable for general revenue purposes and must, therefore, be regarded as taxes.
20. Mr. Basu also contended with reference to Section 135, Railways Act, that no notification under this section was necessary because, even if it is assumed that a license fee is a tax, it cannot be regarded as a tax in aid of the funds of any local authority. In Sub-section (5) of Section 135, Railways Act, it is provided that 'local authority' in this section means a local authority as defined in the General Clauses Act. In other words, the expression will include an authority legally entitled to or entrusted by the Government with the control or management of a local fund. As already pointed out, one of the intentions of the Legislature in enacting Bengal Act, 1 of 1893 is that the license fees leviable under the Act should be appropriated towards the cost of the Fire Brigade (Section 24) and, under Section 23 of the Act, it is provided that:
The Commissioners shall pay. to the Commissioner of Police half-yearly, in the months of May and November, such sums as are required to meet the cost of the Fire Brigade as appear in the budget of the Commissioner of Police and in such proportion, respectively, as the Provincial Government shall, from time to time, prescribe.
Section 30 of the Act provides that: The Commissioner of Police shall maintain an efficient fire brigade for the Municipalities or such portions thereof that are for the time being subject to the operation of this Act.
21. It is clear from the other provisions of Chap. 5, Bengal Act 1 of 1893 that the general control of the fire brigade is vested in the Commissioner of Police subject to the power of the Provincial Government to make orders with reference thereto. As I read the provisions of the statute, I do not think there can be any doubt that it was the intention of the Legislature that the Commissioner of Police should be entrusted with the control of the fire brigade fund under the general supervision of the Local Government. He is therefore a local authority within the meaning of Section 135 (1), Rail-ways Act. Admittedly, no notification has been issued by the Central Government declaring the railway administration liable to pay the license fees in respect of their warehouses situated in any of the Municipalities to which the provisions of Bengal Act 1 of 1893 apply. It follows therefore that on this ground also the application must succeed. Having regard to the considerations mentioned above this rule will be made absolute and the fine, if already paid, will be refunded. My attention has been drawn to Section 205, Government of India Act, 1935, but, as I do not consider this case involves a substantial question of law as to the interpretation of the said Act, I withhold a certificate under that section.