Asutosh Mookerjee, Acting C.J.
1. This Rule was issued nailing upon the Chairman of the Calcutta Municipality and the Municipal Magistrate to show cause why the conviction of, and the sentence on, the petitioner for the infringement of bye-law No. 10 framed under Clause (18) of Section 559 of the Calcutta Municipal Act, 1899, should not be set aside. The Magistrate has found that a motor oar of the petitioner was left in a public street unattended and that consequently there was a breach of the bye-law mentioned. We are of opinion that, upon the facts found by the Magistrate, his conclusion must be maintained.
2. The real controversy it, whether bye-law No. 10, framed under Clause (18) of Section 559 of the Calcutta Municipal Act, was superseded by implication when Rule 24 was framed under Section 11, Sub-section 2, Clauses (f) and (i) of the Indian Motor--Vehicles Act, 1914, Section 559, Sub-section (18) of the Calcutta Municipal Act provides that 'the general committee may make bye--laws prohibiting or regulating the planing of obstructions, projections or encroachments, or the depositing of materials or goods, in a public street or in or over any drain or aqueduct in a public street or on any land vested in the Corporation'. In exercise of the power thus vested in the general committee, bye-law No. 10 was framed in the following terms; 'No person shall leave a carriage or cart standing in a public street unattended.' This bye law was sanctioned by the Local Government on the 6th January 1905. There can, in our opinion, be no doubt that the bye law is comprehensive enough to include a motercar, because the term 'carriage', as defined in Clause (8) of Section 3 of the Calcutta Municipal A at. means any wheeled vehicle, with springs or other appliances acting as springs, which is used for the conveyance of human beings, and includes a in rickshaw, a bicycle and a triayale.' A motor ear is clearly a wheeled vehicle with springs and is used for the conveyance of human beings. It is, consequently, not necessary to consider whether motor cars were or were not in use when this bye-law was framed and were expressly intended by the framers to fall within its operation. There is thus no escape from the position that bye-law No. 10 is applicable, if it is still operative. But it has been contended by Mr, Sanyal that bye-law No. 10 was repealed by implication when Rule 24 was framed by the Local Government under the Indian Motor Vehicles Act, 1914. Section 11 of the Indian Motor Vehicles Act Sub-section (2), Clauses (f) and (t), provide as follows: 'in particular, and without prejudice to the generality of the foregoing powers', (i), (e)' the powers conferred on the Local Government by Sub-section (1) 'the Local Government may make rules for all or any of the following purposes, namely:
(f) prescribing the precautions to be observed when motor vehicles are standing in any public place.(i) providing generally for the prevention of danger, injury or annoyance to the public or any person, or of danger or injury to property, or of obstruction to traffic.
3. The rules framed by the Local Government, in exercise of the power conferred by this section, were made on the 1st April 1915, and contained, amongst others, the following provision:
(Rule 24.) 'No motor vehicle shall be allowed to stand in any street or other public place unless it is attended by a person holding a subsisting license granted under Rule 15, except when the mechanism of such vehicle has been stopped. We have, consequently, on the one hand, a bye-law framed by a local authority in exercise of the powers conferred upon them by an Act of the Bengal Legislative Council. We have, on the other hand, a rule framed by the Local Government under the authority conferred by an Act of the Indian legislature. The question, consequently, may arise whether the rule framed by the Indian Legislature has by implication repealed the bye-law made under authority of the Local Legislature.
4. The principle applicable to cases of this character was enunciated by the Judicial Committee in a long line of decision upon the construction of the British North Article Act, 1837, which dates the relations between the Dominion and Provincial Governments and Legislatures. The rule deducible there from is, that the repeal of a Provincial Act by the Parliament of Canada can only be effected by repugnancy between its provisions and the enactments of the Dominion. Reference may in this connection be in and, amongst other cases to the decision in Attornty General for Ontario v. Attorney-General for the Dominion (1896)A.C. 348 at P. 360 : 65 L.J.P.C. 26 : 74 L.T. 533, Montreal Oity v. Montreal Street Railway (1912) A.C. 333 : 81 L.J.P.C. 145 : 105 L.T. 970 : 28 T.L.R. 220, Citizent Insurance Co. of Canada v. tarsont (1881) 7 App. Cas. 96 : 51 L.J.P.C. 11 : 45 L.T. 712. The test to be applied consequently to determine the question raised before us is, whether there is a repugnancy between the two provisions, the by% law framed by the Calcutta Municipal Corporation and the rule framed by the Local Government. In our opinion, there is no real repugnancy between these two provisions. The rule framed by the Local Government under the Indian Motor Vehicles Act in substance provides only for cases when the mechansim of the motor vehicle is not stopped. In such cases the rule directs that no motor vehicle shall be allowed to stand in any street or other public place unless it is attended by a qualified person, that is, a person holding a subsisting license granted under Rule 15. The bye-law framed by the Municipal Corporation, on the other hand, applies to all cases and is to the effect, that no person shall leave a carriage or cart standing in a public street unattended. Manifestly, there is no repugnancy between these two directions: One rule is no person shall leave a motor car standing in a public street unattained, and for this purpose, it is immaterial whether the mechanism is in operation or is stopped: the other rule provides that in cases where the mechanism is not stopped the person n attendance must be a qualified person holding a subsisting license. It is thus possible to read the tow together in such a possible to read the two together in such way as to make the one supplement the other: if this view be adopted, there is no repugnancy, although it is conceivable that events which make a person liable to prosecution for infringement of bye law No. 10 may not him liable to prosecution for infringement of Rule 24. Indeed, in the case before us that is precisely the contingency which has arisen, and the prosecution has been rightly initiated for the contravention of bye-law No. 10 and not Rule 24.
5. It has been finally contended that the rule must be taken to have repealed the byelaw, because the punishments which may be inflicted for contravention of the two provisions are not identical. That fact, in our opinion, is immaterial. The rule recognized in Henderson v. Sherborne (sic) and Attorney-General v. Lockwood (1837) 2 M. & W. 236 : 6 L.J.M.C. 28 : M. & H. 40 : 1 Jur. 152 E.R. 743 namely that where the punishment or penalty is altered in degree but not in kind, the later provision is considered as superseding the earlier one, has not application here Robinson v. Emerson (1842) 9 M. & W. 378 at p. 391 : 6 Jur. 171 : 152 E.R. 160 and Cole v. Coulton (1860) 4 H. & C. 352 at p. 355 : 12 Jur. (N.S.) 378 : 15 L.T. (N.S.) 391 : 143 R.R. 652 the offences here are not identical: what may be an offence under the bye-law and it is conceivable that the gravity of the offence under Rule 24 may, in certain circumstances, be much less than that under bye-law No. 10.
6. We are of opinion the bye-law has not been repealed by the rule, and the prosecution was rightly initiated for the contravention of bye-law No. 10 It is thus impossible for us to interfere to the conviction of, and the sentence on, the petitioner, and the Rule must be discharged.
7. I agree.