STATE OF MAHARASHTRA Vs. R J KABANI

JUDGEMENT

(1.) This appeal preferred by the State of Maharashtra against the acquittal of the respondent accused raises an important question pertaining to proper construction to be placed upon Section 390(1) of the Bombay Municipal Corporation (Bombay Act III of 1888) (hereinafter referred to as 'the Act') and sicne the two Division Benches of this Court have expressed conflicting views thereon the same has been referred to this Full Bench for decision.

(2.) The facts giving rise to the prosecution of respondent-accused were these: One Mr. P.P. Jacob, Overseer of the Bombay Municipal Corporation, visited the premises of Universal Metal Refinery at Churiwadi, Goregaon (East) on 22nd December 1970 at about 11-30 A.M. and noticed that the work of casting of balcony plates and moulding of plastic was going on in the said factory. He also found that 5 workers were actually working there and electric energy to the extent of 20 H.P. was being used. The respondent-accused, a partner of the firm, could not on demand produce any written permission under Section 390(1) of the Act, inasmuch as, no such permission had been obtained. The overseer reorted the matter to the higher authorities and oen Mr. B.N. Mehta, Junior Municipalk Prosecutor and Advocate, filed a complaint against the respondent-accused in the Court of Presidency Magistrate, 26th Court, Borivli, charging him with an offency punishable under Section 471 read with Section 390 of the Act of the allegation that he was found to have worked his aforesaidfactory with the aid of electric energy of 20 H.P. on 22nd December 1970 without a valid permission as required under Section 390 (1) of the Act. The respondent-accused admitted the working of the factory on the said premises and further admitted that he had not obtained any permission under Section 390 of the Act. He, however, contended that the said factory had been establised in 1949 when Goregaon (East) was not within the limits of Greater Bombay and hence no permission wasrequired under Section 390 for conducting his factory. On the evidence led before him the learned Presidency Magistrate foundas a fact that the factory was functioning on the premises in question since 1949 and he also accepted the contention of the respondent-accused that since the factory was already in existence prior to concerned area being brought within the limits of Greater Bombay, written permission under Sectiion 390(1) of the Act was unnecessary and he, therefore, acquitted the respondent-accused by his order dated 3rd November 1972. In taking the above view he relied upon the judgment of a Division Bench of this Court (consisting of Kotwal, C.J. and Palekar J.) delivered on 6-4-1970, in Criminal Revn. Appln. No.616 of 1969 (Bom.) where this Court took the view that in respect offactories established in areas prior to merger of all such areas within the limits of Greater Bombay, no such permission under Sec.29- was required to be obtained. Against the acquittal order the State preferred the aforesaid appeal which came up for hearing before Vaidya, J and before the learned Judge reliance was placed on behalf of the State on a prior judgment of Division Bench of this Court (consisting of Gajendragadkar and Vyas, JJ.) delivered on 30-3-1954 in Criminal Appeal No.73 of 1954 (Bom), where a contrary view wastaken, it being held that where the factory was situated in Bandra and was established before Bandra was included within the limits of Greater Bombay, such factory required a written permission under Section 390 (I) of the Act for running the same after the area had merged within the Greater Bombay. Three other judgments of Single Judges of this Court in which a view similar to the one taken by Gajendragadkar and Vyas JJ. was taken were cited before the learned Judge. (Vide judgment of Vimadalal J., D/- 8.11.1968 in Criminal Appeal No.467 of 1967 (Bom.), judgment of Deshpande, J., D/-14.8.1972 in Criminal Appeal No.69 of 1971 (Bom.) and judgment of Rege, J., D/-12.4.1973 in Criminal Appeal No.915 of 1971 (Bom.). Having regard to manifestly conflicting rulings of this Court on the point counsel for both the parties requested the learned Judge to place the appeal before the Hon'ble the Chief Justice for constituting a Full Bench for resolving the conflict and that is how the matter has been referred to us for our decision.

(3.) Since the question pertains to proper construction to be placed on the provisions of Section 390 (1) of the Act, it would be desirable to set out the provisions of Section 390 of the Act which run as follows:-