EMPEROR Vs. SORAB MERWANJI ALPAIVALLA

JUDGEMENT

(1.) The petitioner before us was charged before the Chief Presidency Magistrate with the breach of two bye-laws under the Bombay Tramways Act (Bombay Act 1 of 1874). It was alleged against him that he did not leave a tram car when asked to do so, even though the interior of the car contained the full number of passengers, and, secondly, that he travelled on the rear platform of the tram car contrary to the provisions of bye-law No. 6.

(2.) The trial Magistrate has found the accused guilty of both the charges, and sentenced him to pay fines in respect of those charges.

(3.) The facts are not in dispute. On the 4th March last the petitioner was found standing on the rear platform of a tram car near Bori Bunder when, it may be taken for the purposes of the present petition, the tram car was full. He was asked to leave the car. but he refused to do so, and hence the prosecution. The bye-laws in question have been framed under Section 24 of the Bombay Tramways Act. The Bombay Electric Supply and Tramways Company, Ltd., who are in the position of grantees under the Act in virtue of the provisions of Section 31 of the Act, have power to make regulations from time to time under Section 24 of the Act, among other things, for regulating the travelling in or upon any carriage belonging to them; and for better enforcing the observance of all or any such regulations it is lawful to the grantees subject to confirmation thereof by the Governor-in-Council to make bye-laws for any of the purposes mentioned in the section and from time to time repeal or alter such bye-laws. The bye-laws including bye-laws Nos. 6 and 7 were duly confirmed by the Governor in Council, and published as required by the section. Subsequently in February 1917 a notice to passengers was issued by the Traffic Manager of the Company allowing until further notice three passengers who may wish to do so to stand on the rear platform of all cars excluding the front car of a two-car tram. In February 1919, however, this notice was in effect cancelled and a new notice to passengers was issued by the Managing Director under which only three persons (in addition to any conductor or Inspector on duty there) belonging to any of the four classes of persons mentioned in the notice were to be permitted to stand on the rear platform of a tram car. and passengers other than those mentioned in the first clause of the notice or in excess of the prescribed number were prohibited from standing on the rear platform and were told that any passenger acting contrary to the terms of the notice would render himself liable to removal and to prosecution under the Company s bye-laws. Both these notices have been quoted in the judgment of the lower Court. It is an admitted fact that neither the first notice of February 1917 nor the second notice of February 1919 was confirmed by the Governor in Council. It is argued on behalf of the petitioner that the first notice must be assumed for the purpose of this application to have been validly issued and must be taken to have effected a modification of bye-law No. 6; and that the second notice issued by the Tramway Company is illegal so far as it modifies the first notice. On the other hand it is argued that neither notice has any legal validity so far as it modifies bye-law No. 6 and that any person offending against bye-law No. 6 can be proceeded against according to law. It is further argued on behalf of the Company that under Section 24, apart from the bye-laws, the Company has the power to make regulations for travelling in or upon any carriage and that though these notices may not have the force of bye-laws any breach of which is punishable under the Act, in so far as neither notice is restrictive of any right of a passenger travelling by a tram car they were properly issued by the Tramway Company in order to regulate the traffic. The terms of bye- law No. 6 providing that no person shall travel on the platform of any car are clear, and the act of the accused is clearly contrary to the terms of this bye-law. His action is not contrary to the terms of the notice of February 1917, but that notice wag cancelled in February 1919, and as a matter of fact the petitioner has acted in contravention of the terms of the second notice. In the view I take of these notices it is unnecessary to consider whether the accused would be justified in standing on the rear platform as he did either under the first notice or under the second notice. In my opinion both these notices within certain limits involve a modification of bye-law No. 6 and to that extent require the confirmation of the Governor-in-Council under s, 24 to have any legal effect. As the modifications of the bye-laws involved in these notices have not been confirmed by the Governor-in-Council, for the purposes of this case it must be taken that neither the first notice nor the second notice existed. The propriety of the act of the accused under the Tramways Act must be judged with reference to the terms of bye-law No. 6; and it is clear on the facts that he acted contrary to the terms of that bye-law.