- (1.) THIS is a petition under Article 226 of the Constitution by the Municipal Board, Hathras.
(2.) THE petitioner Board runs a water works for the supply of water to the town of Hathras. On 23rd of January, 1967, the Enforcement Officer appointed under the Emergency Risks (Factories) Insurance Act, 1962 (hereinafter referred to as the 'Act') served a notice requiring the Board to pay a total sum of Rs. 10,711.00 as arrears of premia from 1963 upto date, as the Board had failed to take out insurance in respect of the water works. The petitioner Board was also required to pay a sum of Rs. 5,360.00 as compounding fee. As the premia and the compounding fee was not paid, proceedings were initiated under Section 35 of the U. P. Municipalities Act for its recovery. The petitioner has challenged the demand as also the recovery proceedings. The first contention raised on behalf of the petitioner is that the Act is not applicable as it requires compulsory insurance of factories and the water works department of the petitioner cannot be said to be a 'factory.' Under clause (c) of Section 2 of the Act, "factory" means "a factory as defined in clause (m) of Section 2 of the Factories Act." The definition of 'factory' as contained in clause (m) of Section 2 of the Factories Act reads : (m) "Factory means any premises including the precincts thereof - (i) whereon ten or more workers are working, or were working on any day of the preceding twelve months, and in any part of which a manufacturing process is being carried on with the aid of power, or is ordinarily so carried on." It is not disputed that ten or more persons are working in the water works of the petitioner and water is pumped by use of power. But it is said that no manufacturing process is carried on. Clause (k) of Section 2 of the Factories Act defines "manufacturing process" to mean any process for - (i) making, altering, repairing, ornamenting, finishing, packing, oiling, washing, cleaning, breaking up, demolishing, or otherwise treating or adapting any article or substance with a view to its use, sale, transport, delivery or disposal, or (ii) pumping oil, water or sewage, or (iii) ........................" Thus pumping of water is a manufacturing process according to the definition given in the Factories Act, even though pumping of water may not be a manufacturing process in the ordinary common parlance. Water works is, therefore, clearly covered by the definition of "factory" and the Act is applicable to it.
(3.) IT is then argued that the Act was a temporary measure lasting during the emergency and it came to an end when the emergency was withdrawn on 10th of January, 1968 and no action could be taken under the Act after its expiry. In the case of the petitioner action for the first time was taken on 23rd of January, 1968. This contention is again not acceptable in view of the provisions contained in Section 1 (3) of the Act which provides : "It shall remain in force during the period of operation of the proclamation of Emergency issued on the 26th October, 1962, and for such further period as the Central Government may, by notification in the Official Gazette declare to be the period of emergency for the purposes of this Act, but its expiry shall not affect anything done or omitted to be done before such expiry and Section 6 of the General Clauses Act, 1897 (10 of 1897) shall apply upon the expiry of this Act as if it had been repealed by a Central Act." This provision clearly shows that even after the lapse of the Act, action could be taken to levy and recover insurance premia, if it had not been done during the operation of the Act. This provision clearly saves the power to take action against persons who had evaded the payment of premia by not taking out a policy of insurance in respect of insurable premises. Section 11 contains a specific provision for the levy and recovery of evaded premiums. That section reads : "11. Recovery of Premiums Unpaid.- (1) Without prejudice to the provisions of sub-section (4) of S. 5, where any person has failed to insure as, or to the full amount, required by this Act, and has thereby evaded the payment by way of premium of any money which he would have had to pay out for such failure, an officer authorised in this behalf by the Central Government may determine the amount payment of which has been so evaded and the amount so determined shall be payable by such person and shall be recoverable from him as provided in subsection (2)." Thus Section 11 (1) read with Section 1 (3) of the Act provides a complete machinery for the levy and recovery of evaded premiums even after the expiry of the Act. This position is fully supported by a decision of a Division Bench of this Court in Raja Ram Om Prakash v. Union of India, (Civil Misc. Writ No. 2261 of 1970, decided on 16-12-1970), reported in 1971 All LJ 231 where a similar question arose under the identical provisions of the Emergency Risks (Goods) Insurance Act, 1962. The same view has been taken in Union of India v. T. Sitaramanjaneyulu, AIR 1971 Andh Pra 145 and Eastern Bihar Divisional Chamber of Commerce and Industry, Bhagalpur v. The Chief Enforcement Officer, AIR 1972 Pat 314 where it has been held that proceedings for recovery of evaded premiums payable under the Emergency Risks (Goods) Insurance Act, 1962 and the Emergency Risks (Factories) Insurance Act can be initiated even after the Acts have ceased to be in force on the expiry of the emergency. The Madras High Court has, however, taken a contrary view in M/s. Stoneware Pipes (Madras) Ltd. v. Union of India, AIR 1971 Mad 442. The contrary view taken by the Madras High Court in the above case has not been accepted by the Patna High Court and I am in respectful agreement with the view of the Patna High Court. The Act casts an absolute liability upon every person to take an insurance policy and to pay premiums due thereon and on his failure to do so a provision has been made to recover from him the arrears of premia.;