Calcutta High Court (Appellete Side)
Sudhir Prakash vs The State Of West Bengal & Anr on 12 February, 2018
Author: Dipankar Datta
Bench: Debi Prosad Dey, Dipankar Datta
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IN THE HIGH COURT AT CALCUTTA
CRIMINAL REVISIONAL JURISDICTION
APPELLATE SIDE
PRESENT : Hon'ble Justice Dipankar Datta
and
Hon'ble Justice Debi Prosad Dey
CRR 1270 of 2014
Sudhir Prakash
Vs.
The State of West Bengal & Anr.
For the petitioner : Mr. Sabyasachi Banerjee,
Mr. Ayan Bhattacharya,
Mr. Anirban Dutta,
Mr. Pratik Ghosh.
For the opposite parties : Mr. Ranabir Roy Chowdhury,
Mr. Mainak Gupta.
Heard on : January 5, 12 and 30, 2018
Judgment on : February 12, 2018
DIPANKAR DATTA, J. :
1. The petitioner by presenting CRR 1270 of 2017, dated April 10, 2014 [an application under sections 397 and 401 read with section 482 of the Code of Criminal Procedure, 1973 (hereafter the Cr.P.C.)], sought for quashing of proceedings numbered as GR Case 1456 of 2008, arising out of K2 (Shakespeare Sarani) Police Station FIR No. 147 dated June 5, 2008 under sections 11C/11J/ 11L of the West Bengal Fire Services Act, 1950 2 (hereafter the 1950 Act). When the application was moved, investigation of the FIR was complete resulting in filing of police report (charge-sheet) in terms of section 173(2) of the Cr.P.C. before the Chief Metropolitan Magistrate, Kolkata vide CS No. 135 dated October 22, 2009 under the aforesaid sections of the 1950 Act.
2. Perusal of the written complaint of the opposite party no.2, giving rise to the FIR, reveals that a fire had broken out in a portion of 'Kanak Building', 41 Chowringhee Road, Kolkata (hereafter the said building) on May 30, 2008 which was extinguished by fire brigade personnel. The station officer of the fire services headquarters had thereafter lodged the complaint before the Officer-in-Charge, Shakespeare Sarani Police Station alleging violation of the provisions of sections 11C/11J/11L of the 1950 Act.
3. The revisional application was heard by a learned Judge on March 3, June 16 and June 23, 2017.
4. It was contended by Mr. Sabyasachi Banerjee, learned advocate on behalf of the petitioner that another company, M/s Reckitt and Colman India Limited, has been in occupation of the said building and therefore, if at all, it is the occupier who should be held liable for any contravention of the provisions of the 1950 Act, and not the company which is the owner of the said building. It was further contended that the proceedings under challenge were not sustainable in law in the absence of service of a notice under section 35 of the 1950 Act. According to the petitioner, service of 3 such notice is a condition precedent for attraction of the penal consequences envisaged in Chapter III-A of the 1950 Act and in the absence thereof, the accusation of the complainant that the petitioner had contravened the provisions of the 1950 Act, by not providing fire prevention and fire safety measures, was without substance. Decisions of three learned Judges of this Court reported in 2009 (3) CHN 106 [Prem Swarup Sharma & Anr. Vs. State of West Bengal], 2012 (2) CHN (Cal) 515 [Susanta Kumar Bose Vs. State of West Bengal] and (2013) 1 C Cr L R (Cal) 915 [M/s. Laminated Products Vs. State of West Bengal] were cited on behalf of the petitioner in support of the proposition that in the absence of a notice issued under section 35 of the 1950 Act, question of compliance with the provisions of Chapter IIIA of the 1950 Act does not arise and, therefore, the complaint together with the proceedings following it ought to be quashed. Reliance was also placed by the petitioner on the decision reported in (2005) 8 SCC 89 (S.M.S. Pharmaceuticals Ltd. Vs. Neeta Bhalla & Ors.) in support of the contention that to attract the concept of vicarious liability as envisaged in a penal statute or a statute having penal consequences, there has to be necessary averment with regard to the fact that the accused or the person projected to be the accused was in charge of and responsible for the day to day affairs of the company. On the basis thereof, it was submitted that the petitioner could not have been roped in in criminal proceedings on the principle of vicarious liability simply because of his status as a director of the company, which was the owner of the said building.
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Based on such submissions, Mr. Banerjee had prayed for relief as claimed in the revisional application by the petitioner.
5. Mr. Roy Chowdhury, learned advocate representing the opposite parties had vehemently opposed the revisional application. He contended that the questions raised by the petitioner could be decided only after a full-fledged trial and not at such a preliminary stage. It was the burden of the petitioner to prove, as per proviso to section 33(1) of the 1950 Act, that the offence was committed without his knowledge or that he had exercised due diligence to prevent commission of any offence. Submissions were advanced by him urging the learned Judge to take a view different from those taken by other coordinate Benches in the decisions cited by Mr. Banerjee, on the ground that the proviso to section 11-C(1) of the 1950 Act mandates issuance of a notice under section 35 thereof to the owner or occupier, as the case may be, of a high risk building [construction whereof had been completed before the coming into force of Chapter III-A of the 1950 Act with effect from November 1, 1996 or a high risk building which was under
construction as on November 1, 1996], if additional fire prevention and fire safety measures in such building as specified in the notice under section 35 of the 1950 Act, upon an inspection being conducted under section 34 thereof, were required to be undertaken and carried out; however, if the owner or occupier is found not to have complied with the statutory mandate in sub-section (1) of section 11-C, without even issuing a notice, a complaint could be lodged entailing penal consequences. He, accordingly, prayed that the revisional application may be dismissed.5
6. Upon hearing learned advocate for the parties, the learned Judge delivered a judgment and order dated July 21, 2017. His Lordship was of the view that the "question regarding the nature of the building as high risk building or otherwise and liability of the petitioner as a director of the owner company can be decided after recording evidence in trial only and it is not the proper stage for consideration of this question". Thereafter, His Lordship proceeded to consider the decisions in Prem Swarup Sharma (supra), Susanta Kumar Bose (supra) and M/s Laminated Products (supra) as well as the provisions contained in sections 11C, 11J, 34 and 35 of the 1950 Act. His Lordship, ultimately, was of the following view:
"Since I am of the view that inspection under Section 34 of the West Bengal Fire Prevention Act is not sine qua non for launching prosecution with allegation of contravention of Section 11C due to absence of any fire prevention and fire safety measures in the premises in question where the alleged incident of fire occurred on 30.05.2008 I am of the view that the impugned proceeding pending in the 12th Court of learned Metropolitan Magistrate, Calcutta cannot be treated as vitiated. Therefore, accepting the arguments of the State respondent I find that the said proceeding need not be quashed for want of service of notice upon the petitioner under Section 35 of the West Bengal Fire services Act, 1950.
The above findings and the findings made earlier by three different Single Benches of this Court as per citation (supra) cannot coexist. In the premises, offering my due honour to the Hon'ble Judges who authored the said cited decisions I respectfully differ with their interpretation of law on the subject.
However, maintaining the judicial discipline I think it is a fit case for a decision by a larger Bench of this High Court for a decision on the point of law as to whether a criminal proceeding alleging contravention of the provision of Section 11C of the West Bengal Fire Services Act is not maintainable only because no notice under Section 35 of that Act was served upon the accused before initiation of the proceedings.
If such decision of Hon'ble Larger Bench goes against the findings on the point made in this judgment this revisional application shall stand allowed and the impugned proceeding shall stand quashed. But if such decision goes in favour of the findings made in this judgment this revisional application shall stand dismissed and the impugned proceeding in the Court below will be continued as usual in accordance with law.6
Be that as it may, further hearing of this revisional application is considered unnecessary after decision of Hon'ble Larger Bench. Therefore, this revisional application be disposed of with observation that the final result of this case will abide by the decision of this Hon'ble Larger Bench. Under peculiar circumstances the order dated 25.04.2014 passed for stay of all further proceedings of GR Case No. 1450 of 2008 pending before the learned Metropolitan Magistrate, 12th Court at Calcutta be continued till decision of a larger Bench of this High Court as aforesaid.
The case be placed before the Hon'ble the Acting Chief Justice of this High Court with humble request for constitution of a larger Bench to resolve the question of law as to whether a criminal proceeding with allegation of contravention of the provision of Section 11C of the West Bengal Fire Services Act, 1950 is not maintainable only because no notice under Section 35 of that Act was served on the accused before initiation of the criminal proceeding."
The judgment and order dated July 21, 2017 shall hereafter be referred to as the referring judgment.
7. The cause papers were thereafter placed before the Hon'ble the Acting Chief Justice. Upon noticing the referring judgment, Her Ladyship by an order dated August 1, 2017 referred the question of law for answer by a Division Bench headed by the presiding Judge of this Bench.
8. In course of hearing on August 21, 2017 this Bench, on consideration of section 11-B of the 1950 Act read with the other provisions thereof, had required the Kolkata Municipal Corporation (hereafter the Corporation) to render assistance by answering as to whether either by any general or special order, measures for preventing, controlling and fighting of fire and ensuring the safety of life and property in the case of fire had been prescribed or not in respect of the said building. The Corporation responded in the negative through a letter dated September 5, 2017 of its Deputy Chief Engineer (C)/Building/Borough VII. 7
9. After change of roster resulting a break-up, the Hon'ble the Acting Chief Justice by a further order dated November 30, 2017 required the reference to be answered by this Bench. The parties have since been heard at length. Arguments more or less similar to those advanced before the learned Judge were reiterated.
10. The learned Judge in the referring judgment has assigned reasons as to why His Lordship was not persuaded to follow the interpretation of section 11-C of the 1950 Act by the coordinate Benches in the cited decisions, holding the proceedings initiated thereunder to be not maintainable for want of notice under section 35 thereof.
11. The referring judgment, in the considered opinion of this Bench, suffers from a serious flaw in that while referring the question of law for answer by a "larger Bench" upon constitution thereof by the Hon'ble the Acting Chief Justice, the learned Judge could not have disposed of the revisional application conditionally on the result of the reference without keeping the lis pending but directing that the stay order granted earlier on April 25, 2014 would continue till the reference is answered. This aspect shall be adverted to later. However, respectfully agreeing with the ultimate view expressed by His Lordship on the point of law referred for an answer, this Bench proceeds to assign its own reasons therefor.
12. The preamble of the 1950 Act says that it is "(A)n Act to provide for the maintenance of a fire brigade, for the licensing of warehouses and for certain other matters". Several amendments have been introduced in the 1950 Act upon the same being enacted. The amendments enforced with effect from November 1, 1996 vide the West Bengal Fire Services (Amendment) Act, 1996 (West Bengal Act VII of 8 1996) (hereafter the 1996 Act) are crucial. Inter alia, Chapter III-A, titled "Fire Prevention and Fire Safety" was incorporated. It starts with section 11-A, and ends with section 11-L. Sections 34 to 38-E were also introduced by the 1996 Act. The 1996 Act also brought about various amendments in section 2 of the 1950 Act, being the definition clause.
13. Reading of all the sections in Chapter III-A prompted this Bench to have a look at the statement of objects and reasons of the 1996 Act, conscious of the legal position that the statement of objects and reasons appended to a Bill, which subsequently is transformed to an Act of the legislature, is not admissible as an aid to the construction of a statute and that it could be referred to for the limited purpose of ascertaining the conditions prevailing at the time the Bill was introduced and the purpose for which the amendment introduced by the Bill in a previous Act was made. The statement of objects and reasons, furnished to us by the West Bengal Assembly Secretariat at our request, reads as follows:
"The West Bengal Fire Services (Amendment) Bill, 1996 STATEMENT OF OBJECTS AND REASONS Fire hazards have increased manifold over the years. In order to tackle the increasing threat of fire hazards, in addition to improving the public fire- fighting arrangements, greater emphasis is to be laid on fire prevention and fire safety of buildings, premises and installations. In the presence of conditions favouring rapid spread of fire, the fire has a tendency to spread rapidly and is out of control by the time the fire brigade is able to reach. Therefore, efforts towards containing a fire in the initial stage itself are important. In this context, the in-build fire-fighting and fire alarm arrangements, means of escape, provision for supply of water for fire-fighting purposes and structural fire safety become relevant. To avoid fire hazards, requirements of electrical safety and regulation on use and/of storage of inflammatory materials are also required to be met strictly. On the basis of the fire hazards, certain buildings are required to be designated as 'high-risk' buildings. Existing provisions for ensuring compliance with various fire 9 prevention and fire safety measures under the municipal and other laws, particularly in the high-risk buildings, have been found to inadequate. In the absence of necessary statutory authority, the fire prevention and enforcement agencies fail to compel the owners of buildings to carry out the necessary measures for preventing fire and its rapid spread. It is also found that the owners of buildings do not provide and maintain the necessary fire safety measures in buildings as required by the building plans approved by local authorities. No specific penalties are provided in the existing municipal laws for the contravention of any fire safety measures, and penalties that are provided are not adequate to effectively curb the violations of the fire prevention measures. The existing procedure for obtaining a fire licence for storing and processing of inflammable substances is cumbersome and time consuming. Such procedure is also required to be simplified. Several operational difficulties are also faced by the fire brigade in effectively combating a fire and for rendering special services.
2. In the circumstances as aforesaid, it is considered expedient to enact a law to make more effective provisions for fire prevention and fire safety measures in high-risk buildings, simplify procedure for obtaining a fire licence, make the fire brigade more effective in fire-fighting operations and remove such other difficulties as have been felt over the years in implementing various provisions of the existing Act.
3. Accordingly, it is necessary to amend the existing Act to provide the following matters:-
(a) designating all high-rise buildings and other classes of buildings, which the State Government specifies on the basis of fire hazard, as high-risk buildings, and providing them with the requisite fire prevention and fire safety measures;
(b) provisions for inspection of such buildings by the Director or by the nominated authority for ascertaining the adequacy or contravention of fire prevention and fire safety measures;
(c) imposition of special fees at rates to be determined by the Government for some classes of high-risk buildings or specific high-risk buildings as may be specified for the purpose of maintaining fire brigade in general and for providing sophisticated equipment and appliances in particular, for the purpose of preventing and extinguishing fire in such buildings;
(d) contravention of any of the provisions related to fire prevention and fire safety to be punishable with imprisonment for a term which may extend to fire years or with fine which may extend to five lakh rupees or with both and, in the case of continuing offence, punishment of fine up to ten thousand rupees for every day for which the offence continues;
(e) provision for an appeal against a notice or order of the Director, Fire Services, or the nominated authority;10
(f) simplification and rationalisation of procedure relating to grant of fire licence for convenience of general public and with objective of raising revenue;
(g) providing for determination of annual licence fee on ad quantum basis;
(h) enhancement of penalty for breach of conditions of licence and for not obtaining licence, wherever it is require;
(i) removal of difficulties and constraints and rationalisation of provisions relating to constitution and operation of the West Bengal Fire Services; and
(j) other connected or incidental matters.
4. The matter being extremely urgent and the West Bengal Legislative Assembly having not been in session at the material time, an Ordinance, namely, the West Bengal Fire Services (Amendment) Ordinance, 1996 (West Ben. Ord. I of 1996), was promulgated in this behalf.
5. The Bill seeks to replace the said Ordinance by an Act of the Legislative Assembly.
6. There is no financial implication involved in the Bill."
14. Perusal of the aforesaid extract leaves no manner of doubt that by gradual passage of time, the 1950 Act in its original form was found to lack teeth to tackle fire hazards in high-rise buildings which had sprouted over the years. It took the legislators much time to realize that stringent provisions were required to be made or else public interest would be in jeopardy. Fortunately, steps were taken in the right direction and wholesale changes were, thus, introduced in the 1950 Act so as to cover high-rise and high-risk buildings, which were seen as potential fire hazards calling for introduction of measures to prevent the same. It would thus seem to be imperative to answer the reference comprehending the legislative history of Chapter III-A of the 1950 Act, where section 11-C (the most important for the present discussion) finds place.
15. Although the reference could be answered by referring to only sub-section (1) of section 11-C, it is considered necessary to reproduce it below in its entirety as well as section 35 for facility of a proper decision:
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"11C. Owner or occupier of high-risk building to provide fire prevention and fire safety measures.-(1) The owner or, where the owner is not traceable, the occupier of a high-risk building or part thereof shall provide fire prevention and fire safety measures in such building or part thereof and the occupier shall maintain the fire prevention and fire safety measures in good repair and in efficient condition at all times in accordance with the provisions of this Chapter or the rules made thereunder:
Provided that in the case of such building or part thereof, the construction of which has been completed on any date before the date on which this Chapter comes into force, the occupier and, in the case of such building or part thereof which is under construction on the date immediately before the date on which this Chapter come into force, the owner shall undertake and carry out such additional fire prevention and fire safety measures as are specified in the notice served on him under section 35.
(2) The owner or occupier of a high-risk building, as the case may be, [shall obtain from the Director-General] or the nominated authority a 'Fire Safety Certificate' in the prescribed form issued by a licensed agency in the manner prescribed.
(3) The State Government may require compulsory endorsement of 'Fire Safety Certificate' by the Director or by a superior nominated authority in respect of any class or classes of high-risk buildings as may be notified by the State Government from time to time.
Provided that the Director or a superior nominated authority shall not endorse any 'Fire Safety Certificate' unless he or it is satisfied about the fire prevention and fire safety measures including safety of electrical installations [structural means of escape from where owner or occupier can evacuate the buildings or place to a place of safety at the time of fire emergency] and provision of supply of adequate quantity of water for fighting purposes made by the owner or occupier of such building.
(4) The occupiers of all high-risk buildings shall carry out a mock fire drill involving the watch and ward staff of such buildings every year under intimation to the Director or the nominated authority in such manner as may be prescribed and a certificate or performance of such drill shall be furnished to the Director or the nominated authority, as the case may be. (5) No person shall tamper with, or alter, or remove, or cause any injury or damage to, any fire prevention or fire safety equipment installed in any such building or part thereof or instigate any other person to do so.
35. Issue of notice to owner or occupier to undertake fire prevention and fire safety measures.-(1) The Director or the superior nominated authority, as the case may be, shall, after completion of the inspection of the building or part thereof or the premises referred to in section 34, record his or its views on the deviations from, or contravention of, the requirements with regard to the fire prevention and fire safety measures or the inadequacy of, or non-compliance with, such measures provided or to be provided therein with reference to the structure of the building or the premises or the nature of 12 activities carried on in such building or part thereof or premises directing him to undertake such measures, and within such time, as may be specified in the notice. Where the owner is not available, the occupier shall undertake such measures in the interest of public safety, notwithstanding anything contained in any other law for the time being in force."
16. While section 11-B of the 1950 Act is generally applicable to a 'building', which according to section 2(aa) of the 1950 Act would have the same meaning as assigned to it in the relevant municipal law in force in a local area [in this case, the meaning assigned in the Kolkata Municipal Corporation Act, 1980 (hereafter the 1980 Act) in terms of section 2(lb) of the 1950 Act], section 11-C is specifically applicable to 'high-risk buildings'. A high-risk building has been defined in section 2(hb) as follows:
"2(hb).- 'high-risk building' means a high-rise building or a building with such occupancy within the meaning of the relevant municipal law in force in a local area, or such other occupancy, or such building, or such class or classes of buildings, as the Sate Government may, by notification, specify."
Since a high-risk building is a high-rise building, necessarily the definition of a high rise building had to be looked at. High-rise building has been defined in section 2(ha) as follows:
"2(ha).- 'high-rise building' means a building the height of which is fourteen and a half metres or more.
Explanation.- For the purpose of this Act, the height in relation to a building shall mean the vertical distance measured from the average level of the centre line of the street or passage to which the plot of land on which the building is situated abuts to the highest point of the building, whether with flat roof or with sloped roof."
There is no dispute that the said building is in excess of 14 and ½ meters in height and, therefore, answers the definition of a high-risk building. 13 What does one understand by 'fire prevention and fire safety measures'? The same is defined in section 2(gg), reading as follows:
"2(gg).- the expression 'fire prevention and the fire safety measures' means such measures as may be provided in the building rules or in any other law for the time being in force, or as may be prescribed, for the prevention, control and fighting of fire and for ensuring the safety of life and property in the case of fire."
17. It would be appropriate at this stage to note what are the 'measures' [as appearing in section 2 (gg)] provided/prescribed by the relevant statutory provisions.
18. The relevant municipal law i.e. the 1980 Act in its Chapter XX-A titled "Fire Prevention and Fire Safety" contains one section only i.e. section 342A, which reads as follows:
"342A. Arrangement for fire prevention and fire safety.- On the coming into force of the West Bengal Fire Services Act, 1950 (West Ben. Act XVIII of 1950), in any area within the jurisdiction of the Corporation, the Corporation shall, in consultation with the Director of Fire Services or any officer authorised by him in this behalf by general or special order, require the owner or the occupier of all or any of the premises in such area to make, or to carry, such arrangements as may be necessary for fire prevention and fire safety in such area.
Explanation.- 'Director of Fire Services' shall mean the Director of Fire Services referred to in clause (e) of section 2 of the West Bengal Fire Services Act, 1950."
19. It has been gathered from the Corporation that although the said building answers the definition of a building as given in section 2(5) of the 1980 Act, no order ~ either general or special ~ has been issued requiring the owner or the occupier of the said building to make, or to carry, such arrangements as may be 14 necessary for fire prevention and fire safety. Thus, there could be no allegation of contravention of the provisions of the 1980 Act and rightly, it has not been so alleged.
20. The expression "any other law for the time being in force" in section 2(gg) is relatable to sub-section (2) of section 11-C, the mandate of which is that an owner or occupier of a high-risk building, as the case may be, is required to obtain 'fire safety certificate' in the prescribed form issued by a licensed agency in the manner "prescribed". Section 2(gg) of the 1950 Act also requires that fire prevention and fire safety measures may be "prescribed" for the prevention, control and fighting of fire and for ensuring the safety of life and property in the case of fire. The word "prescribed" appearing in section 2(gg) has been defined by section 2(k) to mean "prescribed by rules made by the State Government under this Act". Section 40 of the 1950 Act confers power on the State Government to frame rules for carrying out the purposes of the same. It has, thus, to be seen whether any rules have been framed under the 1950 Act. Attention of this Bench was invited to the West Bengal Fire Services (Fire Prevention and Fire Safety) Rules, 2003 (hereafter the 2003 Rules) framed in exercise of power conferred by various sections of the Act, viz. sections 40 read with section 2(gg) as well as sections 11-C, 11-E, 11-F and 11-I. The 2003 Rules contain several provisions relating to classification of licenced agencies, eligibility for grant of licences in favour of such licenced agencies, the procedure for grant of licences, the fees and other connected matters. Part III of the 2003 Rules, titled "Fire Safety Certificate" requires the owner or occupier, as the 15 case may be, of a high- risk building to obtain 'fire safety certificate' through a licenced agency.
21. Submission has been advanced before this Bench by Mr. Banerjee to the effect that the provisions exist only on paper without there being any proper system in place for obtaining 'fire safety certificate'. The learned Judge in the referring judgement has observed that such question along with the other questions raised by the petitioner would fall for consideration at the time of trial and is not to be examined when a challenge is thrown to proceedings that seemingly are validly initiated and its quashing is prayed for. Since this Bench is not sitting in appeal but has been constituted for answering the reference only, it is considered unnecessary to make any observation in this behalf. Needless to observe, the petitioner shall be free to raise such point before the appropriate Court at the appropriate time.
22. Reverting to section 11-C, it does appear that the proviso to sub-section (1) thereof is at the centre of the debate and calls for a proper understanding based on recognised canons of construction.
23. At this stage, it would be profitable to understand the function of a proviso to a section of an Act. In a decision reported in 1975 PLJR 109 (Baba Ajaibdas v. State of Bihar)*, the Patna High Court laid down the following rules of interpretation:
(i) a proviso is not independent of the section. Its object is to carve out from the main section a class or category to which the main section does not apply;
(ii) in case of conflict or repugnancy between proviso to a section and another section, the provisions of the section should prevail; and 16
(iii) that interpretation should be avoided which may lead to friction with other well-established law or may cause absurd or outrageous consequences.
24. Though ordinarily the proviso is not independent of the section, it may sometimes contain a substantive provision. Reference in this connection may be made to the decision of the Supreme Court reported in AIR 1965 SC 59 (CIT, Kerala v P. Krishna Warrier), where it has been held as follows:
"5. *** But it is not an inflexible rule of construction that a proviso in a statute should always be read as a limitation upon the effect of the main enactment. Generally the natural presumption is that but for the proviso the enacting part of the section would have included the subject-matter of the proviso; but the clear language of the substantive provision as well as the proviso may establish that the proviso is not a qualifying clause of the main provisions, but is in itself a substantive provision. In the words of Maxwell, 'the true principle is that the sound view of the enacting clause, the saving clause and the proviso taken and construed together is to prevail'.***"
*Source - N.S. Bindra's Interpretation of Statutes, Tenth Edition
25. Bearing the above rules in mind, it appears to be clear that while sub-section (1) contains a basic intent to govern a particular situation, the proviso to sub-section (1) is also a substantive provision governing a situation different from the one dealt with by sub-section (1). In fact, the proviso deals with a post sub-section (1) situation, i.e. where there is non-compliance of the statutory mandate therein although the mandate in sub-section (1) may have been complied with.
26. What has been ordained by sub-section (1) of section 11-C is this. The owner or occupier of a high risk building, which has been constructed prior to November 1, 1996, must not only provide fire prevention and fire safety measures but such measures must be in good repair and in efficient condition at all times in 17 accordance with the provisions of the 1950 Act and the rules framed thereunder. If such fire prevention and fire safety measures are either not provided or, even if provided, are not in good repair and in efficient condition at all times, that per se could attract the provision envisaged in section 11-J of the 1950 Act. The proviso covers a different situation altogether. Take a case where the owner or the occupier, as the case may be, of a high risk building has provided appropriate fire prevention and fire safety measures in a high risk building or part thereof, which was constructed before November 1, 1996, and maintains such measures in good repair and in efficient condition for some time, in accordance with the requirement of the statute, but in course of time fails and neglects to keep such measures in good repair and in efficient condition, and an inspection under section 34 reveals deficiencies for which a notice is issued under section 35 of the 1950 Act requiring the owner or the occupier, as the case may be, to undertake and carry out such additional (emphasis supplied) fire prevention and fire safety measures as are specified in such notice but the notice is not complied with and additional (emphasis supplied) measures are not provided. It is in such a situation that the owner or the occupier, as the case may be, may make himself liable to be proceeded against under the proviso, even though he may have initially complied with the provisions of section 11-C(1) and provided for fire prevention and fire safety measures in the high risk building in question or part thereof. The obligation to maintain the fire prevention and fire safety measures in good repair and in efficient condition at all times is the requirement of 11-C(1), whereas the proviso is attracted in a situation where any authorised officer of the department 18 upon an inspection specifies in the notice to be issued under section 35 to undertake and carry out such additional (emphasis supplied) fire prevention and fire safety measures, non-compliance whereof would attract the wrath of section 11-J. In the considered view of this Bench, such situation thus could, ultimately, lead to initiation of proceedings resulting in penal consequences.
27. On perusal of the decisions in Prem Swarup Sharma (supra), Susanta Kumar Bose (supra) and M/s Laminated Products (supra), the respective learned Judges appear to have been swayed by reference to "notice ... under section 35" in the proviso to sub-section (1) of section 11-C of the 1950 Act. Their Lordships appear to be of the view, having regard to the requirement of issuance of a notice under section 35, that culpability under section 11-C(1) is not attracted unless the same were issued to an owner or occupier, as the case may be. It seems to this Bench that in the above-referred decisions, the proviso to sub-section (1) of section 11-C has been given undue importance, so much so that it tends to restrict the operation of the section [sub-section (1)] of which it is only a proviso. The proviso to sub-section (1) of section 11-C could not have been read in a manner so as to render sub-section (1) nugatory. The woods were missed for the tree, which was duly noticed by the learned Judge in the referring judgment. Thus, there is no reason whatsoever not to accept the view that a notice under section 35 of the 1950 Act is not always a sine qua non for initiation of proceedings for contravention of the provisions of sub-section (1) of section 11-C of the 1950 Act. It would all depend upon the nature of contravention alleged. To wit, if it were found that no measures had been provided, not to speak of maintaining them in good 19 repair and in efficient condition, proceedings could be launched even without a notice under section 35 being issued; on the contrary, the proviso would be attracted if the owner or occupier, as the case may be, has provided for measures which upon inspection are found to be deficient and despite notice under section 35 is again found to have failed to undertake and carry out additional measures specified therein. In the present case the allegation is that no measures for fire prevention and safety were provided which is in contravention of sub-section (1) of section 11-C. The proviso was not attracted and any notice under section 35, therefore, was not necessary.
28. The reference, thus, stands answered. In view thereof, dismissal of the revisional application is the logical result. An interim order was passed, which was directed to continue even after disposal of the main application. In view of the reference being answered hereby, it is directed that the order of stay passed by the learned Judge would stand vacated forthwith with the result that the proceedings may now be taken to its logical conclusion in accordance with law.
29. Before parting, it is considered appropriate to say a few words on the point that has arisen incidentally from the referring judgment (noticed in paragraph 11 supra).
30. The procedure for a reference to a Full Bench is contained in Chapter VII of the Appellate Side Rules of this Court. Simply put, it provides what one Division Bench in case of a difference of opinion with the decision of any other Division Bench is required to do. What is of paramount importance is that the learned Judges of the Division Bench (referring the case) shall state the point or points upon which they 20 differ from the decision of a former Division Bench and refer the case for final decision of a Full Bench, whereupon the Full Bench shall return the case with an expression of its opinion upon the point(s) of law for final adjudication by the Division Bench which referred it. However, no procedure is prescribed to guide a learned Judge, sitting singly, if His Lordship is not persuaded to agree with the law laid down in a decision rendered by a coordinate Bench. There is, however, no bar for a learned Judge to follow what has been laid down in Chapter VII for a Division Bench.
31. Even in the absence of any guidance provided by the Appellate Side Rules of this Court, the path to be followed, if a learned Judge feels disinclined to agree with the decision of either a Division Bench or a Single Judge, has been shown by Hon'ble P.B. Gajendragadkar, Chief Justice of India (as His Lordship then was) in the decision reported in AIR 1965 SC 1767 [Sri Bhagwan Vs. Ram Chand]. It was observed there as follows:
"18. Before we part with this appeal, however, we ought to point out that it would have been appropriate if the learned Single Judge had not taken upon himself to consider the question as to whether the earlier decisions of the Division Benches of the High Court needed to be re-considered and revised. It is plain that the said decisions had not been directly or even by necessary implication overruled by any decision of this Court, indeed, the judgment delivered by the learned Single Judge shows that he was persuaded to re- examine the matter himself and in fact he had substantially recorded his conclusion that the earlier decisions were erroneous even before his attention was drawn to the decision of this Court in ..... It is hardly necessary to emphasise that considerations of judicial propriety and decorum require that if a learned Single Judge hearing a matter is inclined to take the view that the earlier decisions of the High Court, whether of a Division Bench or of a Single Judge, needed to be reconsidered, he should not embark upon that enquiry sitting as a Single Judge, but should refer the matter to a Division Bench or, in a proper case, place the relevant papers before the Chief Justice to enable him to constitute a larger Bench to examine the question. That is the proper and 21 traditional way to deal with such matters and it is founded on healthy principles of judicial decorum and propriety. It is to be regretted that the learned Single Judge departed from this traditional way in the present case and chose to examine the question himself."
32. The said authoritative pronouncement laying down the duty of a learned Judge of a high court, sitting singly, when faced with decisions of either learned Judges comprising a Division Bench or a Single Judge of the same high court, as the case may be, and with whom such learned Judge is not inclined to be ad idem, must be borne in mind by all learned Judges who have taken the oath to uphold the Constitution and the laws.
33. Here, after recording His Lordship's disagreement with the previous decisions of this Court on the same point, the learned Judge disposed of the revisional application by directing that if the point of difference were answered in one way, a particular result would follow whereas if it were answered in another way, then a different result would follow. By this method, alternate results were pre- determined by the learned Judge. What ought to have been done is to give the reasons for disagreement, formulate the question that required an answer on a reference being made to the Hon'ble the Acting Chief Justice and wait for the answer. The course of action adopted was clearly avoidable. The Bench hearing the reference was made to give its decision in either of two ways so pre-determined, and not in any other way. The rationale behind one of the alternative orders passed, was His Lordship's own opinion after examining the question arising for decision though such opinion was at variance with the earlier decisions of this Court. To the mind of this Bench, before the reference had been answered by the Division Bench or, by the "larger Bench" constituted by the Hon'ble the Acting 22 Chief Justice, as the case may be, no conclusion on the fate of the revisional application either way ought to have been recorded. Such course of pre- determining the order consequential on the reference being answered in a particular way and disposing of the revisional application on such basis, negates the entire concept of a 'reference' and the law laid down in Sri Bhagwan (supra). This Bench is left to wonder what would have been the result if the reference were answered in a manner not contemplated by the learned Judge in the alternatives pre-determined by His Lordship, or if the answer to the question had required further orders not contemplated by the conditional orders passed by His Lordship disposing of the revisional application in a particular way depending upon the way the reference was answered. Fortunately, such situation has not arisen and, therefore, the aberration is allowed to rest.
(DIPANKAR DATTA, J.) DEBI PROSAD DEY, J. :
I agree.
(DEBI PROSAD DEY, J.)