MUNICIPAL COUNCIL AJMER Vs. SATYA NARAYAN

JUDGEMENT

(1.) THESE three appeals raise a common question of law and are therefore disposed of by this judgment with the consent of the parties. The Municipal Council, Ajmer filed a separate complaint against the respondent Satya Narain. The gravamen of the charge in each was that he was running a machine driven by electricity for manufacture of gota within the municipal limits of Ajmer City without licence in contravention of the bye-law 2 framed under sub-sec. 161 (1) (e) of the Ajmer-Merwara Municipalities Regulation, 1925, (VI of 1925), hereinafter called 'the Regulation', which it is contended by the appellant, remained in force even after the repeal of the aforesaid Regulation by virtue of proviso (b) of Sec. 2 (2) of the Rajasthan Municipalities Act, 1959, hereinafter called 'the Act, and was, liable to be punished under sec. 248 (4) of the Act. THESE complaints have been dismissed by the Magistrate!, Second Class, Ajmer on the ground that bye-law 2 did not remain in force by virtue of proviso (b) of the Act and it was not necessary for the accused to have obtained any licence under the aforesaid bye-law. Taking this view of the matter, the Magistrate has acquitted the accused in all the cases.

(2.) THE Municipal Council, Ajmer has filed these appeals. In order to appreciate the contentions of the parties by the learned counsel for the appellant, it is necessary to refer to the relevant provisions of the law. On the 13th of February 1954, the Government of Ajmer issued Notification No. 1/232/53/lsg. , confirming and publishing bye-laws framed by the Ajmer Municipality under sec. 161 (1) (e) read with sec. 245 (e) of the Regulation. Sec. 1 (a) of the bye-law defines 'factory' as follows: - "factory means any manufactory, workshop, concern, business or activity run by electricity, oil, steam or any other mechanical power in the working of which arises any offensive noise unwholesome smell or smoke. " and 'unwholesome smell' is defined as meaning: - "smell or smoke which is likely to cause any state of giddiness, cough, suffocation, inconveni ence or discomfort to the nearby inhabitants;" Bye-law (2) provides that "no person shall newly establish or maintain a factory within the limits of Ajmer Municipality except under a licence. " After the integration of the Ajmer State in the Rajasthan State the Rajasthan Municipalities Act of 1959 came into force on the 17th of October 1959. By Section 2 the Regulation was repealed on or from the date the Act came into force subject to the provisos mentioned in that section. Proviso (b) is relevant for the purposes of these appeals and the relevant part of it runs, as follows: - Provided that: - ". . . . . . bye-laws made. . . . . . . . . under the said laws or enactments hereby repealed shall, so far as may be, be deemed, unless the State Government directs otherwise, to have been. . . made. . . , under this Act. " Sec. 248 of the Act provided for the regulation of certain trades. THE material part of this section is as follows: - "248. Regulation of certain trades.- (1) If the board is satisfied that any building or place used or intended by any person to be used - (a) as a manufactory or place of business of any other kind from which offensive or unwholesome smell, fume etc. or dust arises or which may involve risk of fire. " (4) Whoever uses, without a licence or during the suspension or after the withdrawal of a licence, any place for any purpose mentioned in sub-sec. (1) in any municipality in which byelaws are for the time being in force prescribing the conditions on and subject to which and the areas and localities in respect of which licences for such use may be granted, refused, suspended and withdrawn, shall be punished with fine which may extend to fifty rupees and with further fine which may extend to ten rupees for every day on which such use is continued after the date of the first conviction. " THE view taken by the court with regard to subsection (4) of sec. 248 of the Act is that the place where the accused carried on the manufacture of gota was no doubt used as a manufactory but from that place offensive or unwholesome smell, fume etc. or dust did not arise and there was no risk of fire involved and so there was no necessity of obtaining any licence by the accused for using that place and that in fact there was no bye-law made by the Ajmer Municipality after the coming into force of the Act making it incumbent on the accused to take any licence for the use of the place where he carried on the manufacturing of gota. It was also held that any bye-law framed under the Regulation and notified on the 13th of February 1954 could not remain in operation so far as it related to emitting of offensive noise. It is contended by the learned counsel for the appellants that by virtue of proviso (b) to Sec. 2 the old bye-law remained in force and it did not matter whether such bye-law could or could not be framed under the Act as it was validly made the Regulation and was expressly saved by the proviso (b) of section 2 of the Act. It is further contended that in this case a bye-law of the nature of the bye-law under consideration could have been made under the Act by virtue of the powers u/sec. 90 by the Municipal Council which authorised the Council to make any bye-law not inconsistent with the Act for any of the purposes mentioned in sec. 248. In this connection it is argued that if any person is using any place as a manufactory irrespective of the fact whether from it offensive or unwholesome smell, fume, soot or dust arises or nor, the Municipal Board is empowered to make a bye-law with respect to such a place being used a manufactory irrespective of the fact whether fume etc. comes out of it. It is further urged that even if a bye-law on the lines of the one under consideration cannot be framed under Section 90 of the Act by the Board, still the old bye-law framed under the Regulation remained in tact by virtue of proviso (b) to sec. 2 as there is no inconsistency in the bye-law and any of the provisions of the Act.