Bombay High Court
Emperor vs Shirinbai Sorabji Nagpurwala on 12 September, 1940
Equivalent citations: (1940)42BOMLR1060, AIR 1941 BOMBAY 66
JUDGMENT John Beaumont, Kt., C.J.
1. This is a reference made by the Sessions Judge of Thana. The accused was convicted by the Magistrate of infringing by-law 3 of Chapter III of the by-laws of the Municipality of Vile-Parle, and the learned Sessions Judge takes the view that there are no by-laws of the Municipality of Vile-Parle, and that, therefore, the conviction was necessarily illegal.
2. The position of the matter is this. In 1932 the Municipality were minded to make some by-laws, and they prepared some draft by-laws and sent them to the Commissioner, and the Commissioner made certain alterations in various by-laws, but did not alter Chapter III which contained the by-law said to have been broken, and sent the draft, as altered, back to the Municipality. The Municipality then invited criticism under the Act upon the by-laws as altered, and eventually did nothing further. They never adopted the by-laws as altered by the Commissioner. The contention of the complainant is that, inasmuch as Chapter III was not altered or modified by the Commissioner, that Chapter must be deemed to have been passed and to have come into operation.
3. The question turns on the construction of Section 48 of the Bombay District Municipal Act of 1901. Sub-Section (I) of that Section provides that every Municipality may from time to time, with the previous sanction of the Commissioner, make by-laws on various subjects. Then Sub-section (2) provides that every Municipality shall, before making any by-law under the Section, publish a draft of the proposed by-law, together with a notice specifying a date on or after which the draft will be taken into consideration, and shall, before making the by-law, receive and consider any objection or suggestion with respect to the draft which may be made in writing by any person before the date so specified. Then Sub-section (3) provides that when any by-law made by a Municipality is submitted to the Commissioner for sanction, a copy of the notice published as aforesaid, and of every objection or suggestion so made, shall be submitted for the information of the Commissioner along with the by-law.
4. Now, it is to be noticed that the by-laws have to be made with the previous sanction of the Commissioner. It seems to me that the only way in which a Municipality can make a by-law is by passing a suitable resolution, so that the resolution must be passed after the sanction of the Commissioner has been obtained. Therefore, it seems to me wrong to say, as the learned Advocate General does, that as soon as the sanction of the Commissioner is given, the' proposed by-law at once becomes operative. I do not think that it does. I think that it must then be brought before the Municipality and considered. Where the Commissioner makes material alterations in the draft, I am disposed to think that the Municipality must follow the provisions of Sub-section (2) of Section 48, and invite criticism upon the altered by-law, because the fact that the public have approved of the by-law in one form is no justification for passing it in another form. In the present case it may be that, inasmuch as the Commissioner had not altered the Chapter in which the particular by-law was contained, it was not necessary to invite any further criticism upon that Chapter. But I am clearly of opinion that, in order to bring Chapter III into operation, it was necessary to have a resolution of the Municipality, and non constat that the Municipality would have been prepared to bring into operation one Chapter without the others. Inasmuch as they never passed such a resolution I am clearly of opinion that the learned Sessions Judge is right and that there are no by-laws in existence.
5. We accept the reference and set aside the conviction. Fine and process fee, if paid, to be refunded.