- (1.) THIS Revisional Application is directed against the order dated 5. 12. 1984 passed by the learned Municipal and Metropolitan Magistrate, 2nd Court, calcutta convicting the accused petitioner u/s. 537/437 (i) (b)of the Calcutta Municipal Act, 195 1 and sentencing him to pay a fine of Rs. 100/- in default S. I. for 10 days and further directing him u/s. 440 of the said Act to stop work place within 15 days from the date of the order failing which the accused will be liable to pay a daily fine of rs. 100/- per day and that the Commissioner shall be at liberty to take steps discontinuation of title, work place accordingly to law after expiry of 15 days from the date of the order. It appears that the order was passed by the learned Magistrate,, after he pleaded guilty by saying "doshi". Plea was accepted and accordingly the impugned order was passed.
(2.) IT appears that Calcutta Municipal Corporation lodged a ' complaint against the petitioner wherein it alleged that the accused was using or permitting to be used premises no. 598/b, Rabindra Sarani for work place, run with electricity which is in the opinion of the Corporation dangerous to life, health or property and likely to create nuisance without. a licence from the Commissioner for the year ending 31st march 1985 in contravention of Section 437 of 1951 Act. It was also prayed for by the Corporation for an order u/s. 440 of the said Act
(3.) MR. Nandi has asserted mainly two ground in support of his application. He has submitted that the learned Magistrate acted without jurisdiction in passing the order inasmuch as the Calcutta Municipal Act, 1951 was repealed with effect from 4. 1. 1984. The date of the alleged offence as was alleged in the petition, of complaint was 18th September 1984. In such circumstances if the allegations are found true there was no scope for the learned Magistrate to take cognizance of the offence or to pass an order of sentence and conviction under an act which stood repealed on the date of taking cognizance as well as on the date of passing the order Mr. Roy appearing for the Corporation of Calcutta has not challenged that this complaint was filed after the repeal of the Calcutta Municipal Act, 195 1 but he took the ground that by an amendment of Section 635 of the Calcutta municipal Act, 19 80 the provision of Sections 2 16,222,22 9, 437,442,45 1,460 and 469 of the Calcutta Municipal Act, 1951 shall continue to remain in force until corresponding provisions are made by the Corporation by a Regulation in conformity with the provision of the Act. The amendment was made by the Calcutta Municipal Corporation, 2nd Amendment Act, 1984. This amendment came into force on 15th of May 1984 by notification dated 14th May 1984 in exercise of power conferred by sub-sec. 2 of sec. 1 of the said Amendment Act. I have already noted the date of the commission of the alleged offence was 18th September, 1934. By the date when the offence is alleged to have been committed this amending Act has already come into force. In the complaint it was alleged that the offence committed violated the provision of Section 437 (b) Section 437 appears to have continued to remain in force in terms of clause (h) of Section 635 (1) of 1980 act. Section 635 repealed Calcutta Municipal Act, 1951 with effect from the date of coming into force of the Act and also provided that notwithstanding such repeal the provision of section 4 37 of the 1951 Act shall continue to remain in force until corresponding provisions are made by the corporation by Regulation in conformity with the provision of this Act. Effect of Clause (h) of Section 635 (1) appears to be that it continued to remain in force even after the repeal of 195 1 Act. Mr. Roy submitted that Section 618 of the Act of 1950 has provided general penalty for non-compliance with any notice order or requisition issued under the provisions of the Act and in respect of which no penalty has been expressly provided shall be punishable with fine which may extend Rs. 1000/ -. Mr. Roy contended that for violation of Section 437 of the 195)3 Act the offender can be penalised u/s. 618 of 1980 Act.;