Abhyankar, J.
1. This judgment will dispose of Criminal Revision Applications Nos. 596, 601 and 613 of 1960.
2. Criminal Revision Application No. 596 of 1960 is filed by Bashir Oil Mills through their proprietor Abbas Kasam Haji Dada who was prosecuted in Criminal Case No. 45 of 1959 in the Court of Judicial Magistrate, First Class, Warora, and convicted on May 31, 1960, of a breach of bye-law No. 1 read with bye law No. 7 framed by the Warora Municipal Committee in exercise of the powers conferred under Section 178(5), under Clause (cc) of Sub-section (1) of Section 179 read with Clause (e) of Sub-section (1) and Sub-section (3) of Section 133 of the C. P. and Berar Municipalities Act, 1922. The conviction was confirmed by the Sessions Judge, Chanda, in Criminal Revision No. 25 of 1960 decided on October 8, 1960.
3. Criminal Revision Application No. 601 of 1960 is filed by Ramakant Oil Mill, through its proprietor Bapurao Vithoba Padamawar against conviction of a similar offence in Criminal Case No. 113 of 1959 by the Judicial Magistrate, Warora, on May 31, 1960, confirmed by the Sessions Judge, Chanda, in Criminal Revision No. 31 of 1960 decided on October 8, 1960.
4. Criminal Application No. 613 of 1960 is filed by Swastic Oil Mill, Warora, through its proprietor Vithal Kesheorao Pampattiwar for conviction of the same offence in Criminal Case No. 112 of 1959 by the Judicial Magistrate, First Class, Warora on May 31, 1960, confirmed in Criminal Revision No. 33 of 1960 by the Sessions Judge, Chanda, on October 8, 1960.
5. In each of these cases the applicants have been sentenced to a fine of Rs. 25 for the offence of which they have been found guilty.
6. Each of the applicants is an oil mill and the proprietor of each of these mills has been prosecuted for failure to take out a licence as provided by the bye-laws of the Municipal Committee at Warora, The Municipal Committee, Warora, framed bye-laws requiring a licence being taken for using any place as a flour-mill or an oil mill. The licence had to be taken on payment of fee of Rs. 15 every year.
7. The Warora Municipal Committee is a committee constituted under the C. P. and Berar Municipalities Act, 1922. The Municipal Committee framed certain bye-laws purporting to act under Section 179(1) (cc) of the Municipal Act read with Section 133(1) (e) of the said Act. The bye-laws were confirmed by the Provincial Government and were brought into force under a notification dated October 23, 1935, for the first time. That Notification is as follows:-
No. 7262-2423-M-VIII:-In exercise of the powers conferred by Sub-section (3) of Section 178 of the Central Provinces Municipalities Act, 1922 (C.P. Act II of 1922), the Local Government is pleased to confirm the following bye-laws made by the Municipal Committee, Warora, in the Chanda district, under clause (cc) of Sub-section (1) of Section 179, read with clause (e) of Sub-section (1) and Sub-section (3) of Section 133 and with Sub-section (5) of Section 178 of the said Act, for regulating the issue and renewal of licences for flour mills or oil mills, from which offensive or unwholesome' smells, noises or smoke arise:-
BYELAWS.
1. No place shall be used as a flour mill or an oil mill from which offensive or unwholesome smells, noises or smoke arise without a licence for the purpose from the municipal committee in such form as the committee may prescribe.
2. No licence shall be issued or renewed without an application in writing for the purpose. Such application shall give a full description; including the boundaries of the place for which the licence is required.
3. The licence may be issued and renewed by the President of the committee or by any officer authorised by the committee for the purpose.
4. A fee of Rs. 15/- shall be charged for the issue or renewal of such licence.
5. The licence may be issued at any time during the year but shall remain in force from the date of issue till the 31st March following and may be renewed from year to year on payment of the prescribed fee.
6. Every licence shall be subject to the following conditions, namely,
(a) Every place used for the flour-mill or oil mill shall always be kept in good repairs and clean and sanitary condition and shall be provided with adequate means for lighting and ventilation,
(b) The engine of the flour-mill or oil mill shall be fitted with an efficient silencer to pass exhaust thereof.
(c) The flour-mill or oil mill shall be worked between 8 p.m. and sunrise.
(d) Suitable guards and fences shall be provided for shafts, pulleys and bolts to avoid accident.
(e) No person who is suffering from any infectious or contagious disease shall be employed in the flour-mill or oil mill.
(f) The licensee shall provide in the place such means for lighting and ventilation, drains and other sanitary arrangements for the effective disposal of offensive vapour, dust, effluent, etc., in the process of the working of the mill as the committee may, by notice in writing, require him to provide.
(g) The place shall be open to inspection by any municipal officer or servant authorised for the purpose at all reasonable times between sunrise and sunset, and the licensee shall facilitate such inspection.
(h) The committee may suspend or cancel a licence for non-compliance by the licensee with any of the conditions thereof or under Section 134. Such suspension or cancellation shall not entitle the licensee to any refund of the fee paid for it.
7. A breach of bye-law 1 shall be punishable with fine which may extend to Rs. 50/- and where the breach is a continuing one, with further fine which may extend to Rs. 5/- for every day after the first during which such breach is proved to have been persisted in.
8. By a subsequent Notification dated November 17, 1941, an amendment was effected in bye-law No. 1. This amending Notification is as under:-
8829-4221-M-XIII:-In exercise of the powers conferred by Sub-section (3) of Section 178 of the Central Provinces and Berar Municipalities Act, 1922 (II of 1922), the Governor of the Central Provinces and Berar is pleased to confirm the following amendment to the bye law made by the Municipal Committee, Warora, in the Chanda district, under clause (cc) of Sub-section (1) of Section 179, read with clause (e) of Sub-section (1) and Sub-section (3) of Section 133 and with Sub-section (5) of Section 178 of the said Act, for regulating the issue and renewal of the licenses for flour mills or oil mills from which offensive or unwholesome smells, noises or smoke arise, within its limits, sanctioned under Notification No. 7262-2423-M-VIII, dated the 23rd October 1935:-
AMENDMENT
The following shall be substituted for the existing bye law 1:-
'No place shall be used as a flour mill or an oil mill without licence for the purpose from the municipal committee in such form as the committee may prescribe.'
Thus, it will be seen that whereas in the original bye-law No, 1 a licence was required to he taken for a place which was to be used as a flour mill or an oil mill 'from which offensive or unwholesome smells, noises or smoke arise', by the amendment effected in 1941 the words 'from which offensive or unwholesome smells, noises or smoke arise' after the words 'flour-mill or an oil-mill' have been deleted.
9. The prosecution case was that each of the applicants failed to take out a licence for the year 1957 and yet continued to operate the oil mill and had thus committed an offence under bye-law No. 1 read with bye-law No. 7. It was not contended that a licence was taken by any of the applicants, but the applicants contend that the bye-law itself was ultra vires of the powers of the Municipal Committee. It was contended that the oil mill was run on electric power and no kind of offensive smell or sound or smoke emanated from the mill and, therefore, the applicant had not committed any offence. Thus the defence raised two-fold contentions, (1) that the bye-law requiring a licence to be taken by an oil mill or a flour mill was in excess of the powers granted under Section 133(1) (e) read with Section 179(1) (cc) of the Municipal Act and (2) that in the case of the particular mill of the applicant, in fact, no offensive or unwholesome smells, noises, or smoke arise, and, therefore, the mill of the applicant was not one of those oil-mills for which a licence was required to be taken by the applicant.
10. The trying Magistrate recorded evidence of two witnesses on behalf of the Municipal Committee in each of the three cases and one witness on behalf of the accused in two cases. The Municipal Committee examined the Municipal Secretary and one Anandrao, who was a municipal employee. Both of them deposed that bad smell as well as offensive noise emanated from the mills and spread all over. It was also stated that obnoxious smoke was also emitted from the mills. As against this, the applicant examined one Vinayak Pande who was an Excise Sub-Inspector and he stated that he was never put to any inconvenience due to any obnoxious smell, noise or smoke.
11. As regards the question whether in each case 'offensive or unwholesome smell, noise or smoke' arose, no finding was given by the trying Magistrate in each case, but he has observed that the evidence was balancing. However, the Magistrate observed that 'the very existence of the oil mill or the flour mill is either associated with the incidence of offensive or unwholesome smell, noise or smoke', and, therefore, held that with this view the original bye-law seems to have been amended and made more comprehensive.
12. It is not clear from the judgment of the trying Magistrate whether the trying Magistrate interpreted bye-law No. 1 to mean that a licence was required to be taken under bye-law No. 1 in respect of a flour mill or an oil mill where in fact offensive or unwholesome noise or smoke arose. But it appears that the learned trying Magistrate was of opinion that offensive or unwholesome noise or smoke could not be dissociated from the working of an oil mill or a flour mill and, therefore, under the bye-law as amended a licence was rightly required to be taken.
13. The applicants challenged their conviction before the Sessions Judge, mainly attacking the power of the Municipal Committee to frame bye-law No. 1 in its amended form and requiring a licence being taken for any place to be used as a flour mill or an oil mill. It was contended before the Sessions Judge that Clause (e) of Section 133(1) of the Municipal Act must be so interpreted that the words, 'from which offensive or unwholesome smells, noises or smoke arise' must be read with each of the words viz. (1) manufactory, (2) engine-house, or (3) place of business. When so interpreted, it was further urged, a Municipal Committee has no right to require a licence for a manufactory or an engine-house from which offensive or unwholesome smell, noise or smoke do not arise. It was stated before the Sessions Judge that the Municipal Committee, Warora, had originally framed its bye-law No. 1 in 1935 according to the requirements of Section 133(1) (e) of the Municipal Act. According to the original bye-law No. 1 only those flour mills or oil mills from which offensive or unwholesome noises, smells or smoke arose were required to be covered by a licence. It was contended that by deletion of the words, 'from which offensive or unwholesome smells, noises or smoke arise' it enlarged the power of the Municipal Committee to require a licence being taken from every owner of a flour mill or an oil mill whether or not offensive or unwholesome noise of smoke arose. It was, therefore, contended that such a power could not be arrogated to itself by the Municipal Committee in the guise of making a bye-law to carry out the purpose of Section 133(1) (e) of the Municipal Act.
14. The learned Sessions Judge did not accept this contention. The learned Sessions Judge held that the words 'from which offensive or unwholesome smells, noises or smoke arise' would only govern the words 'place of business' and not the preceding words 'any manufactory' or 'engine-house'. On this interpretation the learned Sessions Judge did not feel compelled to pronounce on the larger question whether as a matter of fact it was established whether or not 'unwholesome or offensive smells, noises or smoke emitted from the applicant mills. The learned Sessions Judge held that the mills were a manufactory and the applicants were bound to obtain the requisite licence even where unwholesome or offensive smells, noises or smoke did not arise from the mills.
15. The applicants have now come up to this Court and have repeated the same contention as in the Courts below. In addition, Mr. Phadke, the learned Counsel for the applicants, has sought permission to raise a further constitutional question challenging the vires of Section 133(1) (e) of the Municipal Act if the interpretation of the learned Sessions Judge is accepted as a correct interpretation of that section read with the bye-law. Mr. Phadke urged that if Section 133(1) (e) is to be interpretation as empowering a Municipal Committee to make a bye-law requiring a licence to be taken for any kind of manufactory or engine-house, whether or not such manufactory or engine-house emits offensive or unwholesome smell, noise or smoke, then according to Mr. Phadke such a power of regulation given to the Municipal Committee will be an unrestricted and unbridled power and must be struck down as an unreasonable restriction on the fundamental right of the petitioner to carry on trade. According to Mr. Phadke, for the exercise of such a power of regulation requiring a licence to be taken, there is is no guiding principle in the section itself and to that extent the statutory provision will amount to an unreasonable restriction contravening Article 19(1)(g) of the Constitution.
16. The challenge to the bye-law based on the constitutional argument was not raised in the Courts below. The opponents, that is the State as well as the Municipal Committee who are represented by counsel, have objected to permission being granted to the applicants to raise issue in this form for the first time. There are not sufficient pleadings and the opponents urge that the issue should not be allowed to be raised in this form at this stage.
17. In my opinion, it is not necessary to allow Mr. Phadke to raise this contention as no such issue arises in this case. As I will show later on, on a proper construction of the provisions of Section 133 (1) (e), it cannot be said that an unrestricted or unguided power has been given to the Municipal Committee to make a bye-law regulating the carrying on of any manufactory or having an engine-house. In my view, the power is restricted and the exercise of the power to make a bye-law must be worked out within the limits of Section 133 and the Chapter under which that power is to be exercised.
18. Mr. Chendke, the learned Counsel appearing for the Municipal Committee, has supported the view taken by the learned Sessions Judge regarding the interpretation of Section 133(1)(e) of, the Municipal Act. Mr. Chendke contended that there is a comma after the word 'manufactory', and the presence of this comma must necessarily be construed as dissociating a manufactory from the words which follow, viz. 'engine house or place of business'. If the word 'manufactory' is so dissociated according to Mr. Chendke, then the requirement that offensive or unwholesome smells, noises or smoke should arise from such a place will not qualify 'manufactory'. In support of this interpretation Mr. Chendke has relied upon certain decisions where one construction or the other was accepted on the ground of the place that a comma has in the text of the section. These decisions are In re Krishnaji Gopal Brahme (1947) 50 Bom. L.R. 1754 : A.I.R [1948] Bom. 360, Walsh v. Walsh (1926) 29 Bom. L.R. 308 : s.c. A.I.R [1927] Bom. 230 and Badrinarain v. State .
19. As regards this mode of construction, Mr. Phadke, the learned Counsel for the applicants, has invited my attention to a decision of the Nagpur High Court reported in 'Municipal Committee, Bilaspur v. Wamanrao [1942] Nag. 269. That case was a case of a flour-mill for which the proprietor had not taken a licence under Section 133(1) (e) of the C. P. and Berar Municipalities Act. The learned Counsel for the Municipal Committee in that case pressed the same construction as Mr. Chendke urged, based on the position of the comma, and Mr. Justice Clarke has observed as follows (p. 272) :-. Mr. Naik on behalf of the Committee has spent a considerable time in arguing that the presence of a comma after 'manufactory' and the absence of commas after 'engine-house' and 'place of business' means that the manufactory is excluded from those businesses which have to be of an offensive or unwholesome nature before they become liable to licence...It is useless, however, to argue from the wording of other Acts to the wording of this Act. In order to interpret the section one has to read it as a whole and if it is clear what the intention of the legislature is, and that meaning is the plain meaning of the words used, then it is improper to strain the language so as to endeavour to make it mean something else. ..I have frequently observed that typists and printers in this country are in the habit, when giving a list of items, of putting a comma between each item expect the last two which are usually separated by the words 'and' or 'or'. The idea is that the word 'and' or the word 'or' takes the place of a comma...It seems however to have become a more or less usual practice and that is all that the printer appears to have done in the present instance...
20. I respectfully agree with the construction placed on the section in this decision and, in my opinion, there is no room for canvassing any other construction of the section.
21. Fortunately, one is not left to the illusory position of a comma as an aid of construction of the section in this case. There are some patent and compelling indications which enable one to find the true meaning and construction to be placed on this section. It has been rightly urged by Mr. Phadke that Section 133 appears in Chapter XII of the Municipal Act which is headed as containing 'Powers to prevent Disease and Public Nuisance'. Thus the powers which are given to a Municipal Committee under the several sections in this Chapter must necessarily mean powers to prevent disease and public nuisance. That is the purpose and scope of the powers generally speaking. Then we have Sections 117 to 132 appearing under the sub-heading of 'Sanitary and preventive powers'. In this class of sanitary and preventive powers is the power to prohibit commission of public nuisances, power to regulate deposit of refuse, power to regulate disposal of dead bodies of animals, power to require filthy buildings or land to be cleansed, power to require disinfections of buildings, power to prohibit use of insanitary buildings, power to require untenanted building to be secure or power to require dangerous places to be made safe power to require ruinous structure to be removed or repaired, power to require removal of nuisance arising from tanks and like, power to require noxious growth to be cleaned, power to require removal of receptacle for filth near water supply, power to remove use of bad water or disposal of mad and stray dogs.
22. Then follows Sections to 123 to 143 which are grouped under the sub-heading'' Powers to regulate certain trades and activities'. It is to be noted that these powers of regulation which will naturally include a power of licensing are powers to regulate certain trades and activities and not all trades or any trades or activities. Then the first section under this group is Section 133 which is as follows:-
133. (1) No place within the limits of a municipality shall be used for any of the following purposes, namely,-
(a) melting tallow, or
(b) boiling bones, offal or blood, or
(c) as a soap-house, oil-boiling-house, dyeing-house or tannery, or
(d) as a brick-klin, pottery or lime-klin, or
(e) as any other manufactory, engine-house or place of business from which offensive or unwholesome smells, noises or smoke arise, or
(f) as a yard or depot for trade in grain, hay, straw, cotton, oil-seed, oil-cake, thatching grass, wood, charcoal, or coal or other dangerously inflammable material, or
(g) as a store-house for any explosive or for petroleum or any inflammable oil or spirit,
except spirit, under a licence obtained by the owner or occupier from the committee and renewable annually.
(2) No such licence shall be withheld unless the committee considers that the business which it is intended to establish or maintain would be offensive or dangerous to persons residing in or frequenting the immediate neighbourhood, or that the area should for general reasons be kept clear of the establishment of such business.
The marginal note to this section describes the power given in this section as a power to regulate offensive or dangerous trades. I am aware that it is not permissible to make use of the marginal note to support a construction which will control the section or cut down the meaning of the section. But it is still permissible to refer to the marginal note of a section if any ambiguity is raised in respect of proper construction to be placed on any of the provisions of the section. (See State v. Jamnabai : [1954]26ITR686(Bom) , State v. Heman Alreja : AIR1952Bom16 and Emperor v. Fulabhai Joshi : AIR1940Bom363
23. Now, Section 133 enumerates in Clauses (a) to (d) those places where one or the other kind of trade or business or manufactory or engine-house is carried on and for which a licence has to be taken from the municipal committee. A scrutiny of these occupations such as melting tallow or boiling bones, offal, or blood, or a soap-house, oil-boiling-house, dyeing-house or tannery, or brick-kiln, pottery or lime-kiln would all go to show that they have one or the other common feature, namely they are all manufactories or places of business from which offensive or unwholesome smells, noises or smokes must necessarily arise.
24. Then follows Sub-clause (e). Now Sub-clause (e) read with the opening words of the section will read as follows:-
No place within the limits of a municipality shall be used as any other manufactory, engine-house or place of business from which offensive or unwholesome smells, noises or smoke arise.
In my opinion, the word 'other' before the words 'manufactory, engine-house or place of business' is a key-word to the interpretation of this sub-clause. Having enumerated in Clauses (a) to (d) several kinds of places of businesses or manufactories from which offensive or unwholesome smells, noises or smoke must necessarily arise and which are required to be regulated, this sub-clause gives a power to the municipal committee to bring under its licensing system of regulation, other manufactories, engine-houses or places or business from which offensive or unwholesome smells, noises or smoke arise. In the context in which the word 'manufactory' is placed in the scheme of Section 133(1) and in the Clause (e), I do not think the word 'manufactory' can be reasonably dissociated from the words 'from which offensive or unwholesome smells, noises or smoke arise'. To accept the interpretation which has found favour with the learned Sessions Judge and which the Municipal Committee wants me to uphold would be to read a power in the Municipal Committee to regulate by licenses each and every kind of manufactory whether innocent or otherwise, that is whether from such manufactory an offensive or unwholesome smell, noise or smoke arise or not. In my opinion, there is no warrant for this construction and the learned Sessions Judge was in error in construing Sub-clause (e) of Section 133(1) of the Municipal Act as empowering a municipal committee to require a licence for each and every kind of manufactory irrespective of whether an offensive or unwholesome smelt, noise or smoke arise therefrom or not.
25. One may well conceive how such a power, if so construed, will embrace every kind of manufacturing activity in a municipal town. I do not think that such a power of regulation was intended to be deposited in a Municipal Committee under the provisions of Section 133(1) (e) which appears in Chapter XII which enumerates the power to prevent disease and public nuisances. The manufactory or engine-house or place of business must be a trade or an activity which is likely to spread disease or which is likely to be a source of public nuisance. If it is neither, then, in my opinion, there is no power in the Municipal Committee in exercise of the powers under Section 133(1)(e) of the Municipal Act to require a licence being taken as an exercise of regulatory power of the Municipal Committee.
26. It will be seen that the power to regulate given in Section 133(1) is controlled in Sub-section (2) of Section 133 itself. Sub-section (2) of Section 133 prohibits a Municipal Committee from withholding a licence required to be taken under Sub-clause (1) unless it is considered by the committee that the business which it is intended to establish or maintain would be offensive or dangerous to persons residing in or frequenting the immediate neighbourhood or that the area should for general reasons be kept clear of the establishment of such business. Thus it will be seen that the limit of the power of regulation and licensing is indicated in the section itself. The only ground on which the licence can be refused will be on the finding of the committee that the establishment of the business or manufactory would be offensive or dangerous to persons residing or frequenting in the neighbourhood or that it is desirable to set apart that area free from such businesses. We have examples of this latter class where special areas are reserved for having a grain market or a timber stall or meat-house.
27. The learned Sessions Judge has referred to certain decisions which, according to him, support the construction which has found favour with him. One such case is a decision of this Court in Criminal Appeal No. 96 of 1955 dated March 4, 1955, State v. Somabhai Lallubhai [1955] A.I.R. Notes of Unreported Cases, Case No. 5860. The full text of this report was not available but it appears that the short note of the case appears in 1955 Notes of Unreported Cases (Case No. 5860). Prom such facts as can be gathered from the short note, it appears, that a printing press was run by electric power and a licence was required to be taken for such press as one of the trade from which offensive or unwholesome smell arises. The text of the bye-laws of the particular municipal borough which was considered are not available from the short note, but it is clear that in the bye-law itself the words, 'from which offensive or unwholesome smell arises' were used. As the words were expressly used, Mr. Phadke has contended that there is no room for any rule of construction being called in aid as the bye-law itself used the words 'from which offensive or unwholesome smell arises'. In my opinion, this ease will not be of assistance in accepting the interpretation of the learned Sessions Judge. The other case to which reference is made is one reported in B. B. Flour Mills v. State A.I.R [1954] Ajm 4. In that case the accused was found working a flour mill without a licence as required by the regulations of the Ajmer Merwara Municipal Regulations. The empowering sections in that case was Section 161 which read as follows:-
No place within a municipality shall be used... as any other manufactory, engine-house or place of business from which offensive or unwholesome smells, noises or smoke arise except under a licence from the Committee which shall be renewable annually.' The bye-law framed by the committee was as follows:-No persons shall establish or maintain a flour-mill within the limits of the municipality except under a licence and in accordance with the conditions...
The Court held that in framing the bye-law the Municipal Committee had only exercised their powers under Section161 of Ajmer-Merwara Municipalities Regulation (VI of 1925) on being satisfied that a flour mill was 'a manufactory, engine-house or a place of business from which offensive or unwholesome smells or noises arise'. It is further noted that it was not contested before the learned Judge that the Municipal Committee was wrong in coming to the conclusion that offensive and unwholesome noises arise or come out from every flour mill.
28. Mr. Phadke has urged that this concession given on behalf of the accused in that case distinguishes that case from the case under consideration. In a sense Mr. Phadke is right that that decision does not in terms decide the question that falls for consideration here. But, in my opinion, the view taken by the Municipal Committee either in the Ajmer case or in the present case that every flour-mill or oil-mill should be regulated by a licence as unwholesome or offensive smell, noise or smoke arise from such oil-mills or flour-mills is justified. It was not necessary, therefore, that oil-mills or flour-mills should be further described as manufactories from which offensive or unwholesome smell, noise or smoke arise. It is implicit in the exercise of the powers under Section 133(1) of the Municipal Act itself. Thus even though the two cases referred to by the learned Sessions Judge do not support the construction of the section upheld by the Judge because of the concession in the Ajmer case and the mention of the descriptive words in the Bombay case, I am of opinion that neither the concession nor the presence of descriptive words is a necessary requirement for upholding the validity of the bye-law.
29. I, therefore, hold, differing from the Courts below, that a Municipal Committee deciding to make a bye-law in exercise of the powers conferred on it under Section 133(1) (e) will be entitled to make a bye-law only in respect of those manufactories, engine-house or places of business from which offensive or unwholesome smells, noises or smoke arise.
30. At this stage it will be proper to notice an alternative submission of Mr. Chendke. Mr. Chendke urged that the bye-law could also be supported as an exercise of the power under Section 133 (1)(f) of the Municipal Act. It was stated that the oil mill was a trade in oil seeds or oil cakes and, therefore, requirement of a licence for the oil-mill would came under Sub-clause (f). I do not find it possible to accept this contention. Running of an oil-mill is not use of a place as a depot for trade in oil seeds or oil cakes. The distinguishing feature is the manufacturing process carried out at the place and not trading in oil seeds or oil cakes. It is not suggested by either side that any of the applicants carry on trade in oil seeds or oil cakes in the mills or that it is used as a depot for such trade. It was also faintly argued that the regulation may come under Clause (g) of Section 133(1), the oil-mill being treated as a store-house for an inflammable oil. There is no merit in this contention also as edible oil seeds which are pressed in the mills of the applicant are not inflammable oil or seeds. The question still remains, however, whether on the interpretation which has been urged by Mr. Phadke regarding the proper construction of Section 133(1) (e) and the power of licensing granted to the Municipal Committee, the bye-law of the Municipal Committee, Warora, framed in 1935 and amended in 1941, contravenes the provisions of Section 133(1)(e). Mr. Phadke has argued that the deletion of the words 'from which offensive or unwholesome smells, noises or smoke arise' after the words 'flour-mill or oil-mill' as they originally appear in bye-law No. 1 when it was framed in 1935, mean and would only mean that the Municipal Committee has now taken a power to require a licence being taken for each and any kind of flour-mill or oil-mill irrespective of whether offensive or unwholesome smell, noises or smoke arise from such oil-mill or flour-mill or not. Mr. Phadke argues that there is no such power to regulate a place which is used as a flour-mill or oil-mill simpliciter unless it is established that from such flour-mill or oil-mill offensive or unwholesome smell, noise or smoke arise.
31. I find it difficult to accept this construction of the amendment effected in. bye-law No. 1 in 1941. In deciding the issue as to whether the bye-law as amended has exceeded the powers of regulation governed in Section 133(1) (e), one must bear in mind the provisions of the bye-laws and the notification by which the bye-laws have been sanctioned and brought into force. A perusal of the notification dated October 23, 1935, reproduced above will show that the Municipal Committee, 'Warora, was making these bye-laws for regulating the issue and renewal of licences for flour-mills and oil-mills from which offensive or unwholesome smells, noises, or smoke arise. Thus the purpose of making the bye-laws is clearly indicated in the notification of the Government which sanctioned the making of these bye-laws. Similarly, in the notification dated November 17, 1941, which amended bye-law No. I, it is clearly stated that Government was pleased to confirm the amendment to the bye-laws made by the Municipal Committee, Warora, for regulating the issue and renewal of licence for flour-mill and oil-mill from which offensive or unwholesome smells, noises or smoke arise. Thus there is no doubt left in one's mind that the Municipal Committee has purported to make the bye-laws requiring a licence to be taken in respect of flour-mills and oil-mills and those bye-laws are in respect of those flour-mills and oil-mills from which of pensive or unwholesome smells, noises or smoke arise.
32. The question is what is the effect of the amendment made in 1941 in bye-law No. 1 framed for this purpose. To my mind the deletion of the words 'from which offensive or unwholesome smells, noises, or smoke arise' from the original bye-law No. 1 does not make the slightest difference either in the purpose of the bye-law or the ambit of their operation. It cannot be construed as enlarging the power of the Municipal Committee to require a licence being taken in respect of a flour-mill or an oil-mill irrespective of whether offensive or unwholesome smells, noises or smoke does not arise therefrom. The bye-law as amended still operates only in respect of those oil-mills and flour-mills from which offensive or unwholesome smell, noise or smoke arise.
33. The question is whether it is necessary for a Municipal Committee to state in the bye-law itself, as they did originally in 1935, that the licence is required to be taken in respect of a flour-mill or an oil-mill from which offensive or unwholesome smells, noises or smoke arise. In my opinion, the Municipal Committee is justified in treating normally every flour-mill or oil-mill as a manufactory from which offensive or unwholesome smells, noises or smoke arise. It is not disputed before me that ordinarily, looking to the conditions and the nature of flour-mills and oil-mills which are to be found in the municipal areas like the town of 'Warora, a flourmill or an oil-mill does emit an offensive or unwholesome smell, noise or smoke. It is not, therefore, necessary for the Municipal Committee to continue to keep these words as descriptive of flour-mills or oil-mills which are required to take a licence. The words 'from which offensive or unwholesome smells, noises or smoke arise' are merely descriptive words and even in the absence of such words, it cannot be said that a flour-mill or an oil-mill is not a place of business from which offensive or unwholesome smoke, noise or smell does not arise,
34. Under Sub-clause (e) of Section 133(1), a Municipal Committee has been given the discretion to include those categories of manufactory, engine-house or place of business for regulation by licensing from which offensive or unwholesome smells, noises or smoke arise. The legislative policy is clearly enunciated in the first four Sub-clauses (a) to (d) of Section 133(1). It is also enunciated in the phrase 'from which offensive or unwholesome smells, noises or smoke arise'. If the municipal committee comes to the conclusion that a flour-mill or an oil-mill is one of those places of business or manufactory or engine-house from which offensive or unwholesome smells, noises or smoke arise, I do not think the Municipal Committee has acted in excess of its powers in making these bye-laws by requiring that a licence should be taken for a flour-mill or oil-mill. I agree with the finding of the learned trying Magistrate that the very existence of an oil-mill or a flour-mill is associated with the incidence of offensive or unwholesome smells, noises, or smoke and that being so, the Municipal Committee, 'Warora, was justified in requiring a licence to be taken for every flour-mill and oil-mill. The amendment of the bye-law, in my opinion, therefore, does not enlarge the ambit of the regulatory power as exercised in the original bye-law of 1935 and is not liable to be challenged on that ground.
35. But it is contended by Mr. Phadke that, with the advance of modern science, it is possible to have a flour-mill or an oil-mill run by electric power which will not give rise to any offensive or unwholesome sound or noise or even smells, much less smoke. This may or may not be so in the case of a particular oil-mill. But it cannot be said that a bye-law is bad because it does not take into consideration exceptional features of a particular oil-mill. The bye-laws are made by the Municipal Committee at Warora taking into consideration the normal oil-mills or flour-mills one comes across in that area. It must also be remembered that 'Warora is a small town which may still be in a stage of semi-urban development. If the Municipal Committee has made regulations for requiring a licence by normal oil-mills or flour-mills which are known to be emanating offensive or unwholesome smells, noises or smoke, I do not consider that such exercise of power embracing an oil-mill or a flour-mill is in any manner excessive or unauthorised. If in a particular case the owner of an oil-mill can show that his particular kind of oil-mill is not an oil-mill from which any kind of offensive or unwholesome smells, noises or smoke arise, he has to apply for exemption or in case of prosecution, he will be free to show that his particular oil-mill is an exception to the general types of oil-mills. But the fact that such a claim is made on behalf of any owner of an oil-mill will not lead to the result that a Municipal Committee is not entitled to regulate licensing of oil-mills in general. The Municipal Committee, Warora, was, therefore, justified in treating all oil mills and flour mills which are normal as manufactories or places of business from which offensive or unwholesome smells, noises or smoke arise. I, therefore, do not find that the deletion of the words 'from which offensive or unwholesome smells, noises or smoke arise' from the bye-law No. 1 has any such effect as is contended for by the applicants in these cases. The bye-law is still operative against oil mills or flour mills from which offensive or unwholesome smells, noises or smoke arise and it was not necessary for the Municipal Committee to retain these words of description to enable them to require a licence being taken in respect of flour mills or oil mills.
36. Another ground of objection that is urged by Mr. Phadke is that the bye-law in the present form enables the Municipal Committee or Municipal authority to abuse its power and requires any kind of flour mill or oil mill to take out a licence. In support of this contention reliance is placed on the observations of their Lordships of the Supreme Court in Chintaman Rao v. The State of Madhya Pradesh [1930] S.C.R. 759. It is urged on the basis of this decision that if an oil mill or flour mill which in fact does not emit unwholesome or offensive smell, noise or smoke is brought within the mischief of licensing regulation, that is sufficient to strike down the bye-law itself. In my opinion, this contention is not well founded. In the case of Chintaman Rao v. The State of Madhya Pradesh what was prohibited was employment in the manufacture of bidis of any person. It was pointed out that the prohibition was of such an amplitude that it will include a number of infirm and disabled persons, a number of children, old women and petty shopkeepers residing in villages from being employed in the manufacture of bidis even though they were incapable of being used for agricultural labour. It was pointed out that this bad the effect of depriving these persons of earning their livelihood. The statute, in fact, prohibited persons who had no connection or relation in engaging themselves in the business of agriculture. Then it was observed that the law even to the extent that it could be said to authorise the imposition of restrictions in regard to agricultural labour cannot be held valid because the language employed is wide enough to cover restrictions both within and without the limits of constitutionally permissible legislative action affecting the right of employment, and then it was observed as follows (p. 765):-. So long as the possibility of its being applied for purposes not sanctioned by the Constitution cannot be ruled out, it must be held to be wholly void.
37. On the strength of this last observation Mr. Phadke has urged that because the bye-law is capable of affecting an innocent oil mill, that is, an oil mill from which offensive or unwholesome smell, noise or smoke does not arise, the bye-law as a whole is liable to be struck down. In my opinion, no such result follows in this case. As I have already held, the bye-law requires a licence to be taken only from those oil mills from which offensive smells, noises or smoke arise. That is the purpose of this bye-law. If in a given case an oil mill owner establishes that his particular mill is such that from his oil mill no kind of offensive or unwholesome smell, noise or smoke arises, the owner can certainly establish that fact and is not bound by the regulating bye-law. So long as it is always open to an owner of an oil mill to show that his is not an oil mill from which offensive or unwholesome smell, noise or smoke arises, it cannot be said that the bye-law requires a licence being taken even in respect of oil mills which are not within the mischief of the section, I am, therefore, quite clear that in this case there is no scope for a contention that the bye-law affects an innocent oil mill.
38. It is further argued, however, that the bye-law is still capable of an abuse, and if there is a possibility of abuse, that in itself is a sufficient ground for declaring the bye-law void. In my opinion, the fact that a provision of a law or a by-law is capable of being abused will not be a valid ground for declaring invalid the bye-law or the law. The power to require licence has to be exercised within the well-known limits. The guidance for the exercise of this regulatory power is given not only in the Act and Section 133 but also in the bye-laws themselves. Bye-law No. 6 prescribes the conditions of the licence and condition (a) of the licence is that every place used for the flour mill or oil mill shall always be kept in good repairs and clean and sanitary condition and shall be provided with adequate means for lighting and ventilation. Then condition (b) lays down that the engine of the flour mill or oil mill shall be fitted with an efficient silencer to pass exhaust thereof. Then condition (f) of the licence enjoins the licensee to provide the place with such means for lighting and ventilation, drains and other sanitary arrangements for the effective disposal of offensive vapour, dust, effluent, etc. in the process of the working of the mill as the committee may, by notice in writing, require him to provide. Thus the conditions under which a licensee has to work and other safeguards which are provided in sub-s.(2) of Section 135 amply protect any abuse of the powers by the licensing authority. If in spite of such protection in a given case owner of an oil mill or flour mill feels that his premises do not require a licence to be taken, he is free to establish that fact in a court of law.
39. Mr. Ghendke, the learned Counsel for the Municipal Committee, has urged on the principle of a decision of the Supreme Court in Harishankar Bagla v. The State of Madhya Pradesh : 1954CriLJ1322 that the licensing bye-law is not liable to be challenged on the ground of conferment of any discretion. The legislative policy and the limits of the exercise of the discretion are patent on the face of the provisions themselves. It is further argued that none of the applicants ever made an application or represented that their mills were liable to be exempted from the operation of the bye-law. The applicants were, therefore, not entitled to urge as a ground of challenge to the bye-law that the bye-law itself is bad because it vests a discretionary power in the Municipal Committee. The Municipal Committee will be entitled to insist on a licence to be taken by an oil mill or a flour mill because normally an oil mill or a flour mill does emit, unwholesome or unhealthy offensive noises, smells or smoke. If the owner of an oil mill or a flour mill wants to be exempted from this requirement, it is for him to establish that his particular oil mill or flour mill does not come within the mischief of the bye-law. Such a requirement does not entitle the applicants to urge that the bye-laws are liable to abuse. To the same effect are the observations of this Court in the case of Govindji Vithaldas v. Mun. Corpn. : AIR1959Bom26 After quoting a passage from Maxwell on the interpretation of Statutes, Tenth Ed., p. 123, the learned Chief Justice observed as follows (p. 131) :-.Therefore, it seems to us that it is rather an exaggeration to suggest that when a statutory discretion is conferred upon an authority, that discretion is either arbitrary or unfettered and unbridled. Even though the Legislature may not indicate the nature of that discretion and how it should be exercised, the principles of law which are well settled must be imported into the consideration of the question as to what discretion the Legislature has conferred upon the authority.
In that particular case there was wide discretion vested in the Municipal Commissioner to grant or refuse to grant a licence for a timber-yard in a particular locality and it was held that grant of such a power was not liable to be struck down as vesting an arbitrary discretion in the licensing authority. The report shows that one of the decisions on which Mr. Phadke relies in support of his contention, viz. the case reported in M. Mohd. Kassim & Bro. v. Municipal Council, Ooty [1955] 2 M.L.J. 684 was referred to in arguments by the counsel for the petitioner in that case. The learned Chief Justice did not permit that citation being used or the reasoning being referred to as it was not an authorised report. I feel that I am bound by this view and, in any case, the decision of this Court referred to above is binding on me in deciding the question whether an excessive discretion has been vested in the licensing authority. In my opinion, the bye-law is not liable to be challenged on this ground.
40. Reference may also be made to a decision from the Allahabad High Court reported in Gurbachan Singh v. Municipal Board, Mirzapur A.I.R [1956] N.U.C.2274. The case concerned a bye-law requiring a licence being taken for regulation and control of brass plate rolling mills within the municipal limits. In considering whether a particular activity did or did not amount to public nuisance requiring to be regulated it has been observed that
the Court is not concerned with the individual case of any particular mill, but with the wider question whether the business of running rolling mills in general constitutes a public nuisance.
In considering the question whether the bye-laws in question are ultra vires,, it is enough if the act in question is likely to cause a public nuisance. It might be that the actual injury caused by a particular running mill may not be so considered as to constitute a public nuisance, but from that it cannot be argued that the cumulative and general effect of running rolling mills situate in an area will not be such as is likely to cause a public nuisance. In my view, this is a proper test to be applied in considering the validity of a bye-law for regulating an activity which normally constitutes a public nuisance.
41. One may also refer to a decision of their Lordships of the Supreme Court reported in Asa Ram v. Dist. Board : 1959CriLJ533 , to which reference was made by Mr: Chendke, the Learned Counsel for the Municipal Committee. In that case the appellant Asaram was prosecuted for having failed to obtain a licence for running a flour mill which was required to be taken under the U. P. Town Areas Act. One of the points raised in appeal was whether running of a flour mill was an offensive trade. The High Court had come to the conclusion that running of a flour mill was an offensive trade. It appears that at the time of arguments the correctness of the decision of the High Court that running of a flour mill was an offensive trade was not challenged. The question, therefore, did not come to be decided on merits by the Supreme Court. But it is pointed out that running of a flour mill per se is beyond dispute an offensive trade. I am inclined to agree with this submission that running of a flour mill is an activity which may well be described as an offensive trade, that is an activity which is likely to cause a public nuisance in the form of emission of offensive or unwholesome noise, smell or smoke per se.
42. Thus on a consideration of the question from various aspects, I have come to the conclusion that bye-law No. 1 of the Municipal Committee, Warora, requiring a licence to be taken in respect of flour mills or oil mills is not an exercise of the power which can be challenged as excessive or ultra vires of the powers of the Municipal Committee under Section 133 of the C. P. and Berar Municipalities Act, 1922.
43. Normally, this should have been enough to dispose of the applications. But the learned trying Magistrate has not given a finding as to whether in the cases of these particular applicant mills, the mills were or were not the places from which offensive or unwholesome noises or smells or smoke arise. When the question was raised in the case, it was the duty of the Magistrate to give a finding on this issue. Normally speaking, offensive or unwholesome noises or smells do arise from flour mills or oil mills as we come across these in this country. But if it is the contention of the accused that their particular oil mill is free from this defect and that no kind of offensive or unwholesome noises, smells or smoke arise from their mills, then clearly the oil mill of the accused will not be a place or a manufactory or an engine-house for which a licence will be required to be taken. But the burden in that case will be wholly on the applicants to prove that their oil mill is free from this mischief which the section and the bye-laws seek to regulate. I am, therefore, constrained to remand all the three cases to the Court below to record a finding after recording the necessary evidence for the accused and for the prosecution in rebuttal, if any, whether the oil mill of each of the accused is such from which no kind of offensive or unwholesome smell, noise or smoke arises. If the finding is in favour of the accused, he is bound to get its benefit.
44. Thus the result is that the conviction and sentences passed on the applicants in each of the three cases are set aside and the cases are remanded to the trial Court for disposal according to law afresh with advertence to the remarks stated above.