JUDGMENT - Bavdekar, J.

(1) This is an appeal by the Government or the State of Bombay against the acquittal of the respondent in respect of an Offence under Rule 10 (e) of Chapter XII of the Bombay Provincial Municipal Corporations Act, 1949.

(2) The prosecution case was that permission was given to the respondent in the present case to construct a godown in his land. Revision Survey No. 361 of the City of Ahmedabad. This permission was granted to him on 26-11-1946, on the express condition not to use the premises as a factory. It appears that he wanted to revise the plans of the godown. So on 17-3-1947, again permission was given to him to use the premises, which he had already constructed as a godown, for storage of materials, but again subject to a condition not to use them as a factory. Subsequently it was found that the respondent had installed machinery in the godown for the purpose of running a factory, and the Municipality has, since that discovery, been attempting to get the factory removed without any success. Ultimately a notice was given to the respondent to remove the factory, but he failed to do so, when he was prosecuted.

(3) Now, the offence in this case was alleged in the complaint, which was filed by the Jilla Inspector of the City of Ahmedabad, to have been committed on 22-5-1951. It is not in dispute that the respondent was using the building, which he had constructed, for the purpose of a factory on that date, and the only one of the defences taken in the lower Court which survives in this appeal is whether the respondent contravened Rule 10 (e) of the rules made under the Bombay Provincial Municipal Corporations Act, 1949.

(4) The respondent in this case admittedly had obtained permission to use the premises, which he had constructed, as a godown for storage of materials. This permission could be availed of by him even after the coming into force of the Bombay Provincial Municipal Corporations Act, 1949. It had come into force on the date upon which the offence in the present case had taken place. But that permission merely empowered the respondent to use the premises, which he had constructed, as a go-down and specifically prohibited him from using them as a factory. Rule 10 (e) of the rules framed under the Bombay Provincial Municipal Corporations Act, 1949, says:

"No person shall, without the written permission of the Commissioner or otherwise than in conformity with the terms of such permission, use or permit to be used as a godown, warehouse, workshop, workplace, factory. any building or part of a building not originally constructed or authorised to be used for any such purpose respectively."

The use of a building for a factory must consequently be covered by a written permission of the Commissioner, which means, the permission obtained under the Act, unless the building, which is used as a factory, was originally constructed for a factory, or had been authorised to be used for the purpose of a factory. As I have already mentioned, the permission obtained by the respondent before the Act only permitted him to use the building, which he had constructed, for a godown. It was not, therefore, a building, which was originally constructed for a factory; nor was it a building, which had been authorised to be used for a lactory. There was consequently the written permission of the Commissioner under Rule 10(e) necessary. The respondent admittedly had no such permission. The learned trial Magistrate was, therefore, in error in acquitting the respondent.

(5) Mr. Purshottam on behalf of the respondent raises a contention, however, that in this case the complaint which has been filed by the Jilla Inspector, and the Jilla Inspector was not authorised by the Commr. to take proceedings under Section 69 of the Bombay Provincial Municipal Corporations Act. He points to Section 481, under which the power to take, or withdraw from, proceedings in respect of an offence committed under the Act is given to the Commissioner, and

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