BHANDARI, J. - (1.) THESE three appeals raise a common question of law and are therefore disposed of by this judgment with the consent of the parties. The Municipal Council, Ajmer filed a separate complaint against the respondent Satya Narain. The gravamen of the charge in each was that he was running a machine driven by electricity for manufacture of gota within the municipal limits of Ajmer City without licence in contravention of the bye-law 2 framed under sub-sec. 161 (1) (e) of the Ajmer-Merwara Municipalities Regulation, 1925, (VI of 1925), hereinafter called 'the Regulation', which it is contended by the appellant, remained in force even after the repeal of the aforesaid Regulation by virtue of proviso (b) of Sec. 2 (2) of the Rajasthan Municipalities Act, 1959, hereinafter called 'the Act, and was, liable to be punished under sec. 248 (4) of the Act. THESE complaints have been dismissed by the Magistrate!, Second Class, Ajmer on the ground that bye-law 2 did not remain in force by virtue of proviso (b) of the Act and it was not necessary for the accused to have obtained any licence under the aforesaid bye-law. Taking this view of the matter, the Magistrate has acquitted the accused in all the cases.
(2.) THE Municipal Council, Ajmer has filed these appeals. In order to appreciate the contentions of the parties by the learned counsel for the appellant, it is necessary to refer to the relevant provisions of the law. On the 13th of February 1954, the Government of Ajmer issued Notification No. 1/232/53/lsg. , confirming and publishing bye-laws framed by the Ajmer Municipality under sec. 161 (1) (e) read with sec. 245 (e) of the Regulation. Sec. 1 (a) of the bye-law defines 'factory' as follows: - "factory means any manufactory, workshop, concern, business or activity run by electricity, oil, steam or any other mechanical power in the working of which arises any offensive noise unwholesome smell or smoke. " and 'unwholesome smell' is defined as meaning: - "smell or smoke which is likely to cause any state of giddiness, cough, suffocation, inconveni ence or discomfort to the nearby inhabitants;" Bye-law (2) provides that "no person shall newly establish or maintain a factory within the limits of Ajmer Municipality except under a licence. " After the integration of the Ajmer State in the Rajasthan State the Rajasthan Municipalities Act of 1959 came into force on the 17th of October 1959. By Section 2 the Regulation was repealed on or from the date the Act came into force subject to the provisos mentioned in that section. Proviso (b) is relevant for the purposes of these appeals and the relevant part of it runs, as follows: - Provided that: - ". . . . . . bye-laws made. . . . . . . . . under the said laws or enactments hereby repealed shall, so far as may be, be deemed, unless the State Government directs otherwise, to have been. . . made. . . , under this Act. " Sec. 248 of the Act provided for the regulation of certain trades. THE material part of this section is as follows: - "248. Regulation of certain trades.- (1) If the board is satisfied that any building or place used or intended by any person to be used - (a) as a manufactory or place of business of any other kind from which offensive or unwholesome smell, fume etc. or dust arises or which may involve risk of fire. " (4) Whoever uses, without a licence or during the suspension or after the withdrawal of a licence, any place for any purpose mentioned in sub-sec. (1) in any municipality in which byelaws are for the time being in force prescribing the conditions on and subject to which and the areas and localities in respect of which licences for such use may be granted, refused, suspended and withdrawn, shall be punished with fine which may extend to fifty rupees and with further fine which may extend to ten rupees for every day on which such use is continued after the date of the first conviction. " THE view taken by the court with regard to subsection (4) of sec. 248 of the Act is that the place where the accused carried on the manufacture of gota was no doubt used as a manufactory but from that place offensive or unwholesome smell, fume etc. or dust did not arise and there was no risk of fire involved and so there was no necessity of obtaining any licence by the accused for using that place and that in fact there was no bye-law made by the Ajmer Municipality after the coming into force of the Act making it incumbent on the accused to take any licence for the use of the place where he carried on the manufacturing of gota. It was also held that any bye-law framed under the Regulation and notified on the 13th of February 1954 could not remain in operation so far as it related to emitting of offensive noise. It is contended by the learned counsel for the appellants that by virtue of proviso (b) to Sec. 2 the old bye-law remained in force and it did not matter whether such bye-law could or could not be framed under the Act as it was validly made the Regulation and was expressly saved by the proviso (b) of section 2 of the Act. It is further contended that in this case a bye-law of the nature of the bye-law under consideration could have been made under the Act by virtue of the powers u/sec. 90 by the Municipal Council which authorised the Council to make any bye-law not inconsistent with the Act for any of the purposes mentioned in sec. 248. In this connection it is argued that if any person is using any place as a manufactory irrespective of the fact whether from it offensive or unwholesome smell, fume, soot or dust arises or nor, the Municipal Board is empowered to make a bye-law with respect to such a place being used a manufactory irrespective of the fact whether fume etc. comes out of it. It is further urged that even if a bye-law on the lines of the one under consideration cannot be framed under Section 90 of the Act by the Board, still the old bye-law framed under the Regulation remained in tact by virtue of proviso (b) to sec. 2 as there is no inconsistency in the bye-law and any of the provisions of the Act. Learned counsel for the respondent has supported the judgment of the learned magistrate and has argued that as no bye-law of the nature of bye-law2 framed under the Regulation could be framed now under sec. 90 of the Act by the Municipal Board, bye-law 2 was not saved, so far as it relates to the licensing of a place of manufactory from which any offensive noise may arise. The first point for determination in these appeals is whether by virtue of proviso (b) to s. 2 of the Act, the bye-law framed under the Regulation was saved in toto and was operative at the time after the coming into force of the Act. Proviso (b) states that bye-laws made under the repealed laws shall, so far as may be deemed to have been made under the Act. The words 'so far as may be' mean 'to the extent it is possible. ' This means that if it is possible to treat the bye-law under the repealed law to be a bye-law under the repealing Act, the bye-law should be deemed to have been saved and shall not be treated as repealed. In my humble opinion, three situations may arise in examining such matter - (1) When a bye-law framed under the repealed law is inconsistent with any provision of the repealing Act. (2) When a bye-law framed under the repealed Act is not inconsistent with any of the repealing Act but a bye-law of that nature could not have been framed under any of the provisions of the repealing Act; (3) When a bye-law framed under the repealing Act is such that analogous bye-law could be framed under the repealing Act. Now in the first case the old bye-law cannot be saved under proviso (b) to sec. 2, as a bye-law which can be saved must be deemed to have been made under the new Act. Any bye-law which is inconsistent with any of the provisions of the Act cannot be deemed to be under the new Act because its inconsistency with the provisions of the new Act may make it out of place under the new Act. In the third case there is little room for the argument that the bye-law is not saved. A duty has been cast on a court of law to see, if it is possible, that the bye-law to be deemed to have been made under the new Act. Here the words 'as far as possible' assume importance and a court of law should go to the full permissible point in order to sustain the bye-law. The savings contained in clause (b) have been made for the purpose that the old machinery may continue to function and the old law, rules, regulations and bye-laws may continue to remain in force consistently with the other provisions of the Act. It is in the second case that the point requires some consideration. The bye-law may be consistent with the provisions of the Act in the sense that there i? nothing in the bye-law which may go directly in conflict with the provisions of the Act, yet it may be that the bye-law is much more stringent than the provisions of the Act and the Municipal Board authorised to make the bye-law may not be in a position to make such a bye-law in exercise of the powers conferred under sec. 90 of the Act. In such a case, it will not be proper to say that such a provision can be deemed to have been framed under the repealing Act. A thing can be deemed to be made under the repealing Act only when it can be made under the provisions of the Act and not otherwise:-- "a local authority cannot by bye-law invest itself with power beyond that conferred on it by statute, nor may by bye-laws prohibit what the empowering enactment sought merely to regulate or order one thing under a power to order another. " (Halsbury's Laws of England, 3rd Edition, Vol. 24 p. 516 ). Learned counsel for the appellant has relied on the judgment of the Nagpur High Court in Vidarbha Mills Berar Ltd. , Ellichpur, by Manager, Balwant Ramkrishna Gadgil Vs. Municipal Committee, Ellichpur City (1) where a similar proviso in the C. P. Municipalities Act of 1922 was under consideration. He relied on the following observations: - "we are of the opinion that the contention for the respondent is correct. "so far as may be" is equivalent to "as far as possible" or, as the lower court appellate court has interpreted, "so far as it exists. " There is nothing in the phrase to lead us to hold the expression "so far as may be" means "so far as is consistent. Had that been the intention the Legislature would certainly have made it clear. . . . . . . . . . . . In this view of the case, we are of the opinion that the words 'so far as may be' do not mean 'so far as is consistent with the present Act' but clearly mean 'so far as they may exist or so far as possible. " The aforesaid observations are, however, to be read with the further observations in that case that the bye-law under the repealed law was not in any way inconsistent with the provisions of the new Act and it was quite possible to argue and hold that it was analogous to a provision under the new Act. Viewed from this point of view, as the bye-law under consideration makes obtaining of a necessary licence even for establishing or maintaining a factory in which any offensive noise-arises and in which there may not arise offensive or tin-wholesome smell, fume, soot or dust, it is not saved by the Act. Sub-section (4) of Section 248 refers to a place used for any purpose mentioned in sub-sec. (1 ). It is only when a place used as a factory from which offensive smell, fume, dust arises or which may involve risk of fire that a Municipal Hoard or council may frame bye-laws about it for obtaining a licence. If any of the things does not arise with respect to a manufactory no bye-law can be framed by the Municipal Council under the provisions of the Act and no action can be taken for the contravention of any such bye-law. The scheme of Sec. 248 is clear. Action mentioned on the lines of sub-sec. (1) can be taken when the place is used for the purposes mentioned in cl. (a) to (s) and when such use is or is likely to become a nuisance to the neighbourhood or is likely to be dangerous to life, health or property. Prosecution under sub-sec. (4) can only succeed if there is any bye-law with respect to such a place and there has been a breach of such a bye-law. In my humble opinion, the Municipal Council, Ajmer City is not authorised to make any bye-law under the provisions of the Act making it incumbent that a licence should be obtained for running a factory in the working of which may arise any offensive noise. In this view of the matter, I am humbly of the opinion that bye-law 2 framed under the Regulation was not operative so far as it related to this factory. These appeals have, therefore, no force and they are dismissed. . ;