Lancelot Sanders, C.J.
1. This is an appeal by the Superintendent and Remembrancer of Legal Affairs, Bengal, against a decision of a Sub-Deputy Magistrate, 3rd Class, of Ghatal, and the matter arises out of a prosecution, in which one Troilokhya Nath Chatterjee was the defendant, under Section 273(2) of the Bengal Municipal Act, which provides that, 'whoever, in a Municipality, without a license uses any place for any of the purposes specified in Section 261, or Section 263; or (uses any place as a kiln in contravention of the provisions of Section 262A) and so on, 'shall be liable, for every such offence, to a fine.' And the material part of Section 261 which is applicable to this case is as follows:
Within such local limits as may be fixed by the Commissioners at a meeting, no place shall be used without a license from the Commissioners, which shall be renewable annually, for any of the following purposes, namely, as a tannery, slaughterhouse, or kiln for making bricks, pottery, tiles or lime.
2. The allegation in this case was that the defendant had, without a license used a place as a kiln for making bricks. The brick field was said to be about 50, 000 square feet and the method of manufacturing bricks was, what is called in this country, in 'Panjas' or as it has been said by one of the witnesses 'clamps.' The description of a 'Panja' or clamp' is given by the witness, Joy Kumar Sarkar, who was called for the defendant. He says 'there is a difference between a kiln and clamp. In a 'clamp' or 'Panja' the fuel and bricks are placed in alternate layers. In a kiln, which means a room or masonry enclosure with or without roof, in which the bricks are stacked without any fuel and burnt from places or flues arranged below the stack, in which the fires are lighted and kept up with the fresh supplies of wood or coal till the bricks arc burnt.' 'Then' he says 'we never say Bull's clamp but Bull's kiln and we say' country clamp 'which does not mean a kiln. 'Then' in describing the process adopted by the defendant, he said,' I would not say that the bricks were burnt there in kilns, but they were burnt in 'clamps' or country 'Panjas.''
3. On the other hand, it has been contended that this process of burning bricks by placing the fuel and the bricks in alternate layers so that they reach up to a Considerable height and cover a considerable area really, in effect, amounts to the creation of the kiln The Magistrate decided in favour of the defendant holding that this process was not a kiln and the Legal Remembrancer has appealed. The definition of a kiln in the Oxford Dictionary is as follows: A furnace or oven for burning, baking, or drying of which various kinds are used in different industrial processes.' Then, it gives an instance, 'An oven or furnace for baking bricks, tiles or clay vessels, or for melting the vitreous glaze on such vessels.'
4. That definition, in my opinion, points to a structure which is of a permanent nature. Further, I was struck with the account which the learned Vakil read from the Encyclopaedia Britannica in Volume IV, at page 520. It runs as follows:--'It is evident that the best method of firing bricks is to place them in permanent kilns, but although such kilns were used by the Romans some 2000 years ago, the older method of firing in 'clamps' is still employed in the smaller brick fields, in every country where bricks are made. These clamps are formed by arranging the unfired bricks in a series of rows or walls, placed fairly closely together so as to form a rectangular stack. A certain number of channels or fire mouths are formed in the bottom of the clamp and fine coal is spread in horizontal layers between the bricks during the building up of the stack. Fires are kindled in the fire mouths and the 'clamp' is allowed to go on burning until the fuel is consumed throughout. The clamp is then allowed to cool, after which it is taken down and the bricks sorted.' In that description there is clearly a distinction drawn between that which is a 'clamp' and that which is a 'kiln', and the process of making bricks by means of 'clamps' seems to be older than the kilns which were used by the Romans about 2000 years ago. Giving to the word 'kiln' its ordinary meaning, I am inclined to the opinion that the Magistrate was right in his construction. If, however, there is a doubt about it, the words of the section ought; not to be strained unduly against the defendant. In my judgment, there is force in the argument which the learned Vakil presented, upon the construction of this part of the section. The words are 'using a place as a kiln for making bricks.' His argument was that if it had been intended to prohibit the manufacture of bricks not only by means of a kiln but also by means of the older system of 'clamp' it would have been sufficient for the legislature to provide that no place shall be used without a license from the Commissioners for the purpose of making bricks; consequently, we must take it that the words 'no place shall be used as a kiln for making bricks,' were advisedly used by the legislature having regard to the ordinary meaning of the word 'kiln' as distinguished from 'clamps.' In a case of this kind, in my judgment, it is not the function of the Court to strain the meaning of the particular section of the Act, because, if the process which is aimed at in this prosecution is really a nuisance and if it is, in the opinion of the authorities, such a process as ought to be brought within the purview of the section, it is open to them to amend the Act.
5. For these reasons, in my judgment, the appeal must be dismissed.
6. I agree.