R.N.DUTT, J. - (1.) THIS Rule is against an, order of conviction and sentence under Section 537 read with Section 437(1)(d) of the Calcutta Municipal Act, 1951.
(2.) THE prosecution case is that when one Sanitary Officer of the Calcutta Corporation inspected premises No. 5, Tiljala Road, on March 5, 1963, it was noticed that the petitioners as partners of Cleback Boat Company had stored more than 50 maunds of timber in the premises for the purposes of their business, namely, manufacturing motor boats. Cleback Boat Company had, however, no licence as required under Section 437 (1)(d) of the said Act.
(3.) THE petitioners as partners of the company were, therefore, prosecuted under Section 537 of the Act. They pleaded not guilty. The learned Municipal Magistrate convicted both of them and sentenced each of them to a fine of Rs. 100, in default to rigorous imprisonment for one month. Mr. Banerjee has argued that with the coming into operation of the amended Section 38 of the Fire Services Act in Calcutta, Section 437 of the Calcutta Municipal Act stood repealed and so it was no -longer necessary for the petitioners to obtain a licence under Section 437(1) of that Act. This Court has held in Criminal Revn. Case No. 86 of 1962 (Cal.) that the amended Section 38 of the West Bengal Fire Services Act, 1950, had retrospective -operation. At any rate, this was in operation in 1963 when the offence is said to have been committed. So the question arises if after the coming into force of the -amended Section 38 of the Fire Services Act, 1950, in Calcutta a licence is still to be obtained under Section 437(1) of the Calcutta Municipal Act. Amended Section 38 reads as follows: 38. On the application of this Act - (a) to Calcutta, the provisions of Section 437, of the Calcutta Municipal Act, 1951, or (b) to any other municipality or to Chandemagore, the provisions of the Act applicable to such municipality or to Chandemagore, and corresponding to the said provisions of the Calcutta Municipal Act 1951, shall be deemed to be repealed in so far as they entitle the Corporation of Calcutta or the Commissioners of such municipality or the Municipal Corporation of Chandemagore, as the case may be, to levy fees in respect of any premises or part thereof licensed as a warehouse or workshop under this Act. It is clear that what is repealed is not the entire Section 437 of the Calcutta Municipal Act. Section 38 states that the provisions of Section 437 of the Calcutta Municipal Act shall be deemed to be repealed in so far as it entitled the Corporation of Calcutta to levy fees in respect of any premises or part thereof licensed as a warehouse or workshop under that Act. The right of the Corporation of Calcutta to levy fees in respect of the premises described in Sub -section (1) is contained in Sub -section (3) of the section which says that the Corporation shall fix a scale of fees to be paid in respect of premises licensed under Sub -section (1) provided that no such face shall exceed five hundred rupees. So, what is repealed under Section 38 of the Fire Services Act is this right of the Corporation to levy fees in respect of the premises licensed under Sub -section (1) but the requirement to take a licence under Sub -section (1) still remains and Sub -section (1) of Section 437 is not repealed. Reference may in this connection be made to the decision in Corporation of Calcutta v. North Bihar Saw Mill reported in : AIR1967Cal64 . T.P. Mukherji J. has held that Section 38 of the West Bengal Fire Services Act repeals only Sub -section (3) of Section 437 of the Calcutta Municipal Act and not the whole of it. Similar view has also been taken by A.K. Das J. in unreported Criminal Revision Case No. 1170 of 1966 (Cal.), MacFarlan and Company Ltd. v. Corporation of Calcutta. Mr. Banerjee refers to the unreported Division Bench decision in Criminal Revision Case No. 86 of 1962 (Cal.) and Criminal Revision Cases Nos. 269 to 274 of 1952 (Cal.), Messrs. Burn and Co. Ltd. v. Sri M. Mullick. There also this Court held that with the coming into operation of Section 38 of the Fire Services Act the Howrah Municipality had lost the right to realise fees under Section 386 of the Calcutta Municipal Act, 1923, which correspond to Section 437(1) of the Calcutta Municipal Act, 1951, as extended to Howrah. With respect we agree with this view and we hold that with the -coming into operation of Section 38 of the Fire -Services Act the right of the Corporation to levy fees is lost but Section 437(1) under which a licence is required to be taken has -not been repealed. The petitioners were, therefore, required to take a licence for storing in their premises timber in 1962 -63. ;