Ranawat,j - (1.) THIS is a reference by the Additional Sessions Judge, of Banswara. Purshottamlal was convicted under sec. 165 of Rajasthan Town Municipalities Act. 1951 and sentenced to a fine of Rs. 30/- by an order of the Munsif-Magistrate, Banswara dated 3lst March, 1956.
(2.) THE learned Additional Sessions Judge has recommended that the conviction and sentence passed by the Munsif Magistrate should be set aside. THE reasons for the recommendation are as follows (1) THE only provision in the Rajasthan Town Municipalities Act for regulating factories is contained in sec. 46 clause (y) of sub sec. (1) wherein it Is also provided that the conditions for the establishment of the factories as defined in the law relating to factories for the time being in force may be prescribed by bye-laws. A flour mill employing less than 10 persons cannot be regarded as a factory under the definition of the term given in the Factories Act. Consequently under sec. 46 (1) (y) it is not competent for a Municipal Board to make regulations for flour mills employing less than 10 persons, (2) THE bye-laws were published in March, 1952 after the United State of Rajasthan Municipalities Ordinance, 1949 was repealed by the Rajasthan Town Municipalities Act in December, 1951. THE bye-laws, therefore, having been framed under a repealed Act cannot have legal effect. (3) THE bye-laws framed under the U. P. Municipalities Act require the approval of the Commissioner or the Director of Local Bodies before they are brought into force, but the bye-laws made by the Banswara Municipality did not receive any such sanction and though they were sanctioned by the Government, yet they could not be regarded valid under sec. 301 (4) of the U. P. Municipalities Act. (4) THE maximum punishment that can be awarded under sec. 148 (2) is of Rs. 25/- only and a fine of Rs. 30/- in the present case is therefore illegal. It may be noted that the learned Additional Sessions Judge is not right in applying the provision of sec. 46 (1) (y) to the present case. A flour mill employing less than 10 persons cannot be considered to be a factory as per definition of the term according to the Indian Factories Act. A licence for running such a mill within the limits of a municipality may fall under sec. 46 (1) (r) which is as follows - 46 (1) (r) - Every municipal board may from time to time with the previous sanction of the Government make, alter or rescind bye-laws not inconsistent with this Act, regulating the erection or use of building for grain shops or grain stores and regulating the use of sites for erection of buildings and regulating, in localities intended lor residential purposes, the erection or use of buildings for shoos, market places, manufactories, places of public resort or for any other purposes. A flour mill being a manufactory is evidently covered by the provision of sec. 46 (1) (i) and it cannot be assumed that the Banswara Municipal Board was not competent to make bye-laws lor the regulation of flour mills, The learned lower court was wrong in holding that the only provision under which such a bye-law could be made was under sec. 46 (1) (y) and sec. 160. Bye laws arc made by a municipality by a special resolution under sec. 298 of the U. P. Municipalities Act as adapted to former Rajasthan. Under that section publication in the gazette is not mandatory. Passing of a special resolution is sufficient for making a bye-law provided previous sanction is obtained of the authority concerned The fact that the bye-laws were published in the gazette after the coming into force of the Rajasthan Town Municipalities Act could not, therefore, detract anything from the value of the bye laws that were framed in accordance with the law then in force though such law may have been repealed before their publication. The learned Additional Sessions Judge was not right in construing that the publication in the gazette was tantamount to the making of bye-laws. Sec. 2, sub-sec. (4) of the U. P. Municipalities Act defines a city as meaning a municipality having a|population of 1,00,000 or more inhabitants and includes any municipality which is a city by virtue of a notification under sec. 3. In adapting the U. P. Municipalities Act to the area of former Rajasthan in place of 1,00,000, 20,000 population was substituted. The population of Banswara at that time may have been 20,000 or more, or the Government of the former Rajasthan State may have issued a notification under sec. 3 treating the Municipality of Banswara as a city Municipality. As in the present case sanction has been accorded by the Government it may be presumed that at that time the Government treated Banswara as a city municipality. There will be a presumption in favour of the legality of the bye-laws and nobody has come forward to challenge them on the ground that Banswara was not a city municipality. As regulation of a flour mill cannot be regarded as regulation of a dangerous or offensive trade or business, sec. 148, which has been referred to by the learned Additional Sessions Judge, cannot apply to the case of running a flour mill without a licence. The learned Munisf-Magistrate has convicted the accused under sec. 165 of the Rajasthan Town Municipalities Act which provides a penalty of Rs. 50/ -. A fine of Rs. 30/- has been imposed which cannot be considered to be illegal under that provision of law. The reference is not accepted and is dismissed. . ;