CHUNI LAL Vs. CORPORATION OF CALCUTTA

JUDGEMENT

(1.) The petitioner in this case is the proprietor of an electric mill, by which dal is manufactured at premises No. 3, Sonar Gouranga Temple Lane, in Calcutta. The Corporation of Calcutta, it appears, by a declaration duly made and published in the Local Gazette in the year 1925, notified that no person shall, in the area in which the above premises were situate, use any premises for dal grinding business, carried on by electric, steam or other mechanical power (other than hand power), and a prosecution was started against the petitioner under Section 488(2) read with Section 387(5), Calcutta Municipal Act, for continually working the dal-mill by electricity, in contravention of the declaration published in the Gazette under Section 387. The defence of the petitioner was that Section 387 was not applicable without reference to Section 386(1)(a), in view of the position that dal is not grain according to the interpretation put upon the word by this Court, that the petitioner's business was neither dangerous to public life, health nor property, nor did it create any nuisance as mentioned in Section 386(1)(b); and further, that the declaration by the Corporation of Calcutta, published in the Gazette in the year 1925, could not affect the petitioner's business in question, as it had been established long before the publication of that declaration.

(2.) It may be mentioned at the outset that it is not necessary for the purpose of this case to consider whether dal was grain within the meaning of Sch. 19(7) referred to in Section 386(1) (a), Calcutta Municipal Act, and the interpretation that the word grain does not include dal may be accepted as correct.

(3.) The Municipal Magistrate by whom the case against the petitioner was tried has come to the finding on evidence before him, to which reference has been made in his judgment, that dal dust was offensive and injurious to health, and that the dal-grinding business, in regard to which the petitioner was prosecuted, "gave rise to volumes of dal dust" causing nuisance. The finding so arrived at by the Magistrate has to be accepted for the purpose of the case before this Court now. It is clear therefore that prosecution of the petitioner by the Calcutta Corporation under Section 387(5) was justified in view of Clause (b), Section 386(1), Calcutta Municipal Act, irrespective of Clause (a) and Sch. 19, mentioned in that clause if it were not otherwise invalid. The question for consideration then is whether the declaration by the Calcutta Corporation, to which reference has been made above, could affect the business which was admittedly established and was being carried on from before the declaration. Reliance has been placed by the learned advocate for the petitioner on the case of Butchers Hide, Skin and Wool Co. Ltd. V/s. Seacome (1913) 2KB 401, in support of the proposition that where a business was established before the coming into operation of the order declaring it to be an offensive trade, it was not an offence to carry on the business. The decision of the case referred to above depended upon the interpretation of Section 112, Public Health Act 1875, (38 and 39 Vict., c. 55) which runs as follows: Any person who, after this Act , establishes within the district of an urban authority, without their consent in writing, any offensive trade of blood-boiler, or bone-boiler or fell-monger, 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, and any person carrying on a business so established shall be liable to a penalty not exceeding 40s., for every day on which the offence is continued whether there has or has not been any conviction in respect of the establishment thereof.