LALJI MULJI Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THE appellant, who would hereafter be called the accused, was convicted under Section 471 read with Section 394(1)(a)(ii) of the Bombay Municipal Corporation Act and sentenced to pay a fine of Rs. 201, in default, to undergo 15 days' rigorous imprisonment. The accused has preferred an appeal from the order of conviction and sentence. It was noticed that the vires of Section 394 of the Bombay Municipal Corporation Act was called in question, and, therefore, a notice was issued to the Advocate -General. The learned Government Pleader has appeared on behalf of the State as also on behalf of the Advocate -General. 'When the matter came up for hearing before me sitting singly, a request was made by Mr, Ganatra on behalf of the accused, and also by the learned Government Pleader that, in view of the importance of. the question involved, the case may be referred to a Division Bench. Accordingly, the criminal appeal has been referred to a Division Bench, and, that is how, the matter has come up before us for final decision.

(2.) THE accused has been keeping lubricating oil in Plot No, 56 -58 at Mazgaon without a valid permit from the Municipal Commissioner, On November 26, 1962, an inspector visited the premises and found that lubricating oil was kept stored in 162 drums. It was found that each of these drums contained 45 gallons. The total quantity of lubricating oil came to 7290 gallons. A complaint was lodged on February 8, 1963, against the accused for contravention of the provisions of Section 394(1)(a)(ii).

(3.) THE points urged by Mr. Ganatra on behalf of the accused may be outlined as follows: - (1) The provisions of Section 394(1)(a)(ii) read with Schedule M, Part II (a), (b) and (c) are ultra vires Article 246 read with Entries 53, 93 and 95 of List I, Seventh Schedule, of the Constitution of India. (2) Assuming that the impugned legislation fell in any of the entries in List II, the impugned section substantially and seriously encroached upon the Union field of legislation, viz., Entry No. 53 and the Petroleum Act of 1934. (3) The impugned section is inconsistent with the provisions of the Petroleum Act of 1934 and, therefore, void. (4) In view of Section 31 of the Petroleum Act and the notification issued thereunder, the provisions of the impugned section must be read subject to all the provisions of the. Petroleum Act. (5) The impugned section infringes the fundamental right of the accused guaranteed under Article 19(1)(f) and (g).