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Sudhir Kumar Ghosh Vs. the State and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata High Court
Decided On
Judge
Reported in1977CriLJ1824
AppellantSudhir Kumar Ghosh
RespondentThe State and anr.
Excerpt:
- .....inspector for such construction, extension or use of the building on such site.according to mr. ghosh rule 3 framed under the said act goes beyond the scope of section 6. he has submitted that the relevant provision of rule 3 which requires previous permission in writing in a case where a building is taken into use as a factory is beyond the rule-making power inasmuch as it goes beyond the requirement of section 6. he has submitted that section 6 does not require any such permission when an already existing building is subsequently taken into use as a factory. according to mr. ghosh section 6 contemplates of a previous permission only when a vacant land is to be used for a factory by way of construction of a building therein (apart from the case where there is a question of extension.....
Judgment:

Bimal Chandra Basak, J.

1. This application is directed against a proceeding before the learned Sub-divisional Magistrate, Howrah, in Case No. 1829 of 1972 and the order dated 2nd June, 1975 passed in the said proceeding.

2. The said proceeding arises out of a petition of complaint filed by the Inspector of Factories, West Bengal. The petition of complaint was filed on the basis that the petitioner before us has committed an offence Under Section 92 of the Factories Act, 1948 (hereinafter referred to as the said Act) for contravention of Section 6 of the said Act read with Rule 3 of the West Bengal Factories Rules, 1958 (hereinafter referred to as the said Rules). The allegation made in the petition of complaint is to the effect that while visiting the premises known as Heat Treater Industries (Private) Limited situated at 12/9 Hrishikesh Ghosh Lane, P. O. Salkia, P.S. Golabari, on the 4th July, 1972, the complainant found that more than ten workers were employed in the manufacturing process which was being carried on with the aid of power. According to the complainant, the premises constituted a factory as defined Under Section 2(m)(i) of the said Act but it was ascertained by the complainant that no previous permission in writing from the Chief Inspector of Factories, West Bengal as required under the provisions of Section 6 of the said Act read with Rule 3 of the said Rules was obtained for the site on which the said factory was situated and for taking the buildings on such site into use as a factory. Upon such complaint being filed, cognizance was taken by the learned Magistrate who directed issue of process. The accused-petitioner before us duly entered appearance and several proceedings were taken therein. Ultimately it appears that on 2-6-75 an order was passed by the learned Magistrate on the petition filed on 12-4-75 by the accused-petitioner before us.

3. The contention of Mr. Ghosh appearing before us was firstly to the effect that the petition of complaint was barred by limitation. In this context Mr. Ghosh relied on the provisions of Section 106 of the said Act. There is no merit in this contention. Under Section 106 of the said Act no Court shall take cognizance of any offence punishable under the said Act unless complaint thereof is made within three months of the date on which the alleged commission of the' offence came to the knowledge of the Inspector. The petition of complaint is dated 3-10-72 and it appears from the order-sheet that cognizance was taken on the very same date. In the petition of complaint it has been stated that on 4-7-72 certain facts were found which is the basis of the alleged commission of the offence. In that view of the matter it is clear that the cognizance was taken within three months of the date on which the alleged commission of the offence came to the knowledge of the Inspector within the meaning of the said section. Accordingly, we have no hesitation in rejecting this contention of Mr. Ghosh.

4. The main submission of Mr. Ghosh before us was on the basis of Section 6 of the said Act. Before we deal with the submissions of Mr. Ghosh it would be relevant to set out the provisions of Section 6 of the said Act and Rule 3 of the Rules framed under the said Act which we hereby do.

Section 6(1): The State Government may make rules--

(a) requiring the previous permission in writing of the State Government or the Chief Inspector to be obtained for the site on which the factory is to be situated and for the construction or extension of any factory or class or description of factories. Rule 3 : No building shall be constructed, extended or taken into use as a factory, or a part of a factory on any site unless previous permission in writing has been obtained from the State Government or the Chief inspector for such construction, extension or use of the building on such site.

According to Mr. Ghosh Rule 3 framed under the said Act goes beyond the scope of Section 6. He has submitted that the relevant provision of Rule 3 which requires previous permission in writing in a case where a building is taken into use as a factory is beyond the rule-making power inasmuch as it goes beyond the requirement of Section 6. He has submitted that Section 6 does not require any such permission when an already existing building is subsequently taken into use as a factory. According to Mr. Ghosh Section 6 contemplates of a previous permission only when a vacant land is to be used for a factory by way of construction of a building therein (apart from the case where there is a question of extension of such a factory). According to him this section does not apply where there is an already existing building which was not previously used as a factory but now intended to be used as such. In such a case, according to Mr. Ghosh, question of permission Under Section 6(1) does not arise but it may require a permission under some other provision of the said Act. In that view of the matter, according to Mr. Ghosh, so far as Rule 3 provides for such a permission for such an use of such an existing building, it goes beyond the rule-making power and accordingly this complaint which is based on such rule in respect of an existing building must be quashed. In this connection Mr. Ghosh relies on the averments in the petition herein including paragraph 6 thereof. Mr. Ghosh in this connection also relies on the petition of complaint and particularly the last portion of paragraph 2 thereof. He points out that it is alleged that no permission was obtained 'for taking the building on such site into use as factory' and accordingly the admitted position is that an existing building is sought to be used as a factory.

5. Both Mr. Sanyal, Mr. Mukherjee, appearing for the complainant and the State respectively, disputed the correctness of this contention of Mr. Ghosh and submitted that Section 6 is wide enough to include a case where an existing building is sought to be used as a factory.

6. We have already referred to the relevant provisions of Section 6 of the said Act and Rule 3 framed thereunder. The admitted position is that if Rule 3 goes beyond Section 6 of the said Act then that portion of Rule 3 must be held ultra vires the said Act and the complaint must fail. However, in our opinion Section 6 cannot be Interpreted in such a fashion. In our opinion Section 6 also contemplates a case where an already existing building is sought to be used as a factory. It is to be remembered that the expression used in Section 6(1)(a) is 'the site on which the factory is to be situated.' The language is not 'the land on which a building is to be constructed for situation of a factory'. In our opinion the expression 'site' is wide enough to include not only a vacant land but also an already existing building. The expression 'site on which the factory is to be situated' is wide enough to include a case not only where there is a vacant land on which a construction is to be made for its use as a factory but also where an already existing structure is sought to be used as a factory though previously it was' not so used.

7. In this context we may refer to Chambers's Dictionary which defines site as situation, esp. of a building ; ground occupied or set apart for a building. This would also be made clear from Stroud's Judicial Dictionary, Fourth Edition, Volume 5, wherein it is stated that the term 'site' in relation to a house, building or other erection, shall mean the whole space to be occupied by such house, building, or other erection, between the level of the base of the walls.

8. Accordingly, it is quite clear that the expression 'site' is not necessarily confined to a particular vacant land but it may also include an .already constructed building on a piece of land. In our opinion, the expression 'site' is not to be given such a narrow meaning as sought to be introduced by Mr. Ghosh.

9. In that view of the matter, we are of the opinion that Rule 3 does not go beyond the rule-making power of the authority concerned. There is nothing in Rule 3 which is beyond the scope of Section 6. In our opinion such permission is also to be required in the case of an already existing building which is sought to be used as a factory. Accordingly we reject this contention of Mr. Ghosh.

10. No case has been made out as to why this Court should interfere with the proceedings before the learned Magistrate. Accordingly the application is dismissed and the Rule discharged.

Chanda, J.

11. I agree.


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