Judgment

WANCHOO, J.: This is an appeal on a certificate granted by the Calcutta High Court. The respondent, the Calcutta Tramways Co. Ltd. is running tramears in the city of Calcutta. It gets electricity in bulk from the Calcutta Electric Supply Company and gets the same converted from alternate current to direct current at a high voltage for electric traction for running tramcars, of the company. For this purpose it has an electric transformer house in 129/4-A and 130-D, Cornwallis Street. The appellant Corporation was of opinion that the premises were being used for a purpose which was dangerous to life, health or property and was likely to create a nuisance. It therefore, ordered the respondent to take out a licence under S. 437 (1)(b) of the Calcutta Municipal Act No. XXXIII of 1951, (hereinafter referred to as the Act) and fixed a fee therefor. The respondent however refused to take out a licence and consequently it was prosecuted under S. 537 of the Act. The respondent raised a number of points in defence, namely, (i) that the prosecution had not been properly filed; (ii) that the electric transformer house was neither a factory nor a place of trade, nor a place of public resort and therefore S. 437 (1) (b) had no application ; (iii) that the use of the transformer house for converting high voltage alternate current into low and medium pressure direct current was neither a use which was dangerous to life, health or property nor the same was likely to create a nuisance; and (iv) that as S. 437 (1) (b) of the Act vests absolute power in the Corporation to form the opinion required thereunder, it was an unreasonable restriction on the freedom of trade guaranteed under Art. 19(1) (g) of the Constitution and therefore that provision is unconstitutional.

2. The Magistrate held that the complaint was properly filed. He further held that the transformer house was meant for the trade which the respondent was carrying on and therefore was covered by S. 437 (1) (b). He also held that the Corporation had properly formed the opinion that the use of the transformer house was likely to be dangerous to life, health or property and was also likely to create a nuisance. He further seems to have held that even though S. 437 (1) (b) made the opinion of the Corporation conclusive and final, there could be no doubt that the use of the transformer house was dangerous to life, health or property and was likely to create a nuisance. Finally he seems to have held that S. 437 (1) (b) as it stood was not unconstitutional. He therefore, convicted the respondent and sentenced it to a fine of Rs. 100/- only.

3. The respondent then went in revision to the High Court,. and the main point urged there was that the provisions of S. 437 (1) (b) were unconstitutional. The High Court held that inasmuch S. 437 (1) (b) made the opinion of the Corporation conclusive and not liable to be challenged in any Court, the provision was unconstitutional inasmuch as it amounted to an unreasonable restriction on the fundamental right enshrined in Art. 19(1) (g). The High Court further held that the provision with respect to the conclusiveness and non-justiciability of the opinion of the Corporation was so embedded in S. 437 (1) (b) that it was not severable and therefore it struck down S. 437 (1) (b) as a whole as unconstitutional. Another point which was urged before the High Court was that the fee of Rs. 500/- - was in the nature of a tax which neither the State Legislature nor the Corporation of Calcutta could levy. The High Court did not decide this question in view of its decision on the constitutionality of S. 437(1) (b). The present appeal has been brought to this Court by the appellant on a certificate granted by the High Court.

4. Two main questions therefore that arise for our decision are: (1) whether the provision in S. 437 (1) (b) which makes the opinion of the Corporation conclusive and non-justiciable in any court amounts to an unreasonable restriction on the