S. 38 of the West Bengal Fire Services Act does not repeal S. 386 of the Calcutta Municipal Act as it was extended to the Howrah Municipality.

Judgment

KAPUR, J. : This is an appeal against the judgment and order of the High Court of Calcutta passed in revision against the order of the Additional Sessions Judge, Howrah, who had modified the order of conviction of the respondents under S. 488 read with S. 386 (1)(b) of the Calcutta Municipal Act (Act III of 1923) as extended to the Municipality of Howrah, hereinafter called the Act . The appellant before us is the Chairman of the Municipal Committee of Howrah who is the complainant and the respondent is a company with its premises at No. 1 Swarnamoyee Road, where it was carrying on the manufacture of bobbins, card pins, shuttles etc. They were also storing their wood and timber in those Premises.

2. The charge against the respondent was that it was using the premises within the municipality of Howrah without a license as required under S. 386 of the Act and was therefore guilty under S. 488 of the Act. The defence of the respondent was that the premises had been licensed as a warehouse under the West Bengal Fire Services Act, 1950 (Act 18 of 1950) and consequently because of S. 38 of that Act S, 386 of the Act stood repealed and the respondent was not required to take out another license under S. 386 of the Act. The Magistrate, before whom the case was tried was of the opinion that the effect of S. 38 of the West Bengal Fire Services Act was that the power of the Municipality to require a license under S. 386 of the Act for user as a warehouse had been taken away and therefore in respect of the rest of the premises used as a factory or for other purposes the applicability of S. 386 remains unimpaired. He found that the respondent was running a factory with workshops fitted with electric power in the premises for the manufacture of bobbins, card pins, shuttles etc. He convicted the respondent under S. 488 and sentenced him to a fine of Rs. 250. In appeal the learned Additional Sessions Judge held that S. 38 of the West Bengal Fire Services Act does not repeal all the three clauses of S. 386 of the Act but partially repeals S. 386(3) which deals with the levy of fees and therefore a license under S. 386(1) will still have to be taken but as the premises had already been licensed as a warehouse the respondent company could not be required to pay any fees under S. 386 (3) of the Act. The object, according to the learned Sessions Judge, was that the levy of fees twice over in respect of the same premises was prohibited and not that the license was not required. The sentence of fine was therefore reduced from Rs. 250 to Rs. 10 Only. Against this order the appellant took a revision to the High Court.

3. The High Court held that where the premises are licensed as a warehouse under the Fire Services Act but a portion of it is used as a workshop the Municipal Committee has no longer the power to levy any fees for granting he license in respect of the premises even though there may be a liability to take out a license i.e. while it may be necessary to take out a license under S. 386 (1). of the Act no fees could be charged and as the whole of the premises in the case had been licensed as a warehouse under the West Bengal Fire Services Act no part of the premises would be liable for any charge of fees for granting a license.

4. A further argument was also raised for the appellant in the High Court and that was that S. 38 of the West Bengal Fire, Services Act did not apply to the Howrah Municipality at all because the Howrah Municipality is governed neither by the Calcutta Municipal Act nor by the Bengal Municipal Act but by the Calcutta Municipal Act as extended to Howrah i.e. as modified in accordance with the powere conferred on the Government by S. 541(2) of the Calcutta Municipal Act. But the High Court was of the opinion that S. 38 of the West Bengal Fire Services Act is applicable to the Howrah Municipality and therefore repelled this last argument. The revision was therefore dismissed, and the rule was discharged. Against t