1. The plaintiffs, who are the appellants in this appeal, brought a suit against the Hooghly and Chinsura Municipality for a declaration that the action of the Municipality in levying a licence-fee from them and realising the same by distress was ultra vires and for a permanent injunction restraining the Municipality from levying the fee in future.
2. The plaintiffs have a Rice Mill within the Municipality and the latter imposed a fee under Section 261 of the Bengal Municipal Act(III of 1884).
3. The Court of first instance decreed the suit. That decree has been set aside by the Court of Appeal below.
4. Two contentions have been raised before us; the first is, that there is no clear finding as to whether it was a manufactory or place of business from which offensive or unwholesome smell arises, and, secondly, that in order to bring a case within the section, the manufactory or business must be per se offensive or unwholesome.
5. With regard to the first contention, we think the findings are sufficient. The result of the findings is that, when paddy is boiled, there is some smell emitted but that is found not to be offensive. When the water in which the paddy is steeped flows from the drain, it is offensive but not so offensive as when it comes into contact with the stagnant water of the Municipal drain. The learned Subordinate Judge further finds that the flow of such a large quantity of filthy water is the direct cause of the bad smell. We think these findings are sufficient to dispose of the first contention.
6. As regards the second contention, we have been referred to the case of Withington Local Board v. Manchester Corporation (1893) 2 Ch. 19 at p. 37 : 62 L.J. Ch. 393 : 2 Rule 367 : 68 L.T. 330 : 41 W.R. 306 : 57 J.P. 340, There a local urban authority proposed to erect a temporary small-pox hospital on land of their own within the district of an adjoining local authority without their consent. The adjoining local authority brought an action and moved for an injunction restraining them from erecting the hospital. The Court of Appeal held that the small-pox hospital was not a noxious or offensive business within Section 112 of the Public Health Act, 1875, (38 & 39 Vict. C. 55). That section lays down that, 'any person who, after the passing of this Act, establishes within the district of an urban authority, without their consent in writing, any offensive trade, that is to say, the trade of blood-boiler, bone-boiler or fell manger 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.'
7. Having regard to the terms of the section, the case is clearly distinguishable, Lindley, L.J., after referring to the words of the section, such as 'blood-boiler, bone-boiler, fell manger,' etc. and the words 'any other noxious or offensive trade, business or manufacture,' observed 'when you bear in mind that those words have been construed already so as not to include businesses which may or may not be noxious, the conclusion at which I have arrived is clear and strong, that even assuming a hospital to be in some sense a noxious business, still it is not a noxious business to which Section 112 has any application; but it is a thing to be dealt with under the other group of sections, which relate specifically to hospitals and infectious diseases.'
8. In the case of Wanstead Local Board v. Hill (1863) 13 C.R.N.S. 479 : 32 L.J.M.C. 135 : 9 Jur.(N.S.) 972 : 7 L.T. 744 : 11 W.R. 368 : 143 E.R. 190 : 134 R.R. 613, which also has been relied upon, the question was raised whether brick, making was 'other noxious business, trade or manufacture' within the meaning of the section. The Court held that to bring the case within the general words, the business or trade must be of itself of a noxious or offensive nature.
9. Section 261 of the Bengal Municipal Act, on the other hand, covers a case of a manufactory or place of business from which offensive or unwholesome smells may arise. There is, thus, a clear distinction between the English and the Indian Statutes.
10. It is further contended that the clause 'manufactory or place of business from which offensive or unwholesome smells may arise' should be construed ejusdem generis with the clauses preceding it viz., 'melting tallow, boiling offal or blood,' and so on. But the previous clauses cover not only such cases but also 'places used as kiln for making bricks, pottery, tiles or lime, or used as a shop for the sale of meat.' It appears, therefore, that the genus comprises trades, business or manufactory which are not offensive per se and which would not come within the English Statute. We are of opinion that the section covers not only cases which are per se offensive or noxious but also a manufactory or place of business from which offensive or unwholesome smells may arise.
11. The appeal must accordingly fail and is dismissed with costs.