1 APPLN-GR-581.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CRIMINAL APPLICATION NO.581 OF 2011 Brihanmumbai Mahanagar Palika .... Applicant Vs. The State of Maharashtra & Anr. .... Respondents WITH CRIMINAL APPLICATION NO.805 OF 2011 Brihanmumbai Mahanagar Palika .... Applicant Vs. The State of Maharashtra & Anr. .... Respondents S/Shri Sudeep Pasbola with Rahul Arote i/b R.A. Malandkar the Applicant. Shri S.A. Shaikh, APP, for the State. Shri Uday Warunjikar for Respondent No.2 in CA-581/2011. S/Shri Gautam Patel with P.N. Kamath for Respondent No.2 in CA-805/2011. CORAM: R.C. CHAVAN, J. RESERVED ON : JULY 27, 2011 PRONOUNCED ON: AUGUST 16, 2011 ORDER: 1. These two applications for leave to 2 APPLN-GR-581.11 file appeals have been filed by the Brihanmumbai Mahanagar Palika questioning the Judgments passed by the learned Metropolitan Magistrate, 41 st Court, Shindewadi (Dadar), Mumbai in C.C. Nos.2273/SS/2008 and 1960/SS/2009 whereby the learned Magistrate acquitted the respondents of the offence punishable under Section 471 of the Mumbai Municipal Corporation Act, 1888 (for short, the MMC Act ) for contravening the provisions of Section 390 of the Act. 2. The respondent in one of the cases is an architect where twelve employees were dealing with the work of architectural designs with the help of eleven computers. In the other case, the respondent was carrying out out office work through eleven employees working on computers and consuming 3 h.p. of electric power. The unit in C.C. No.1960/SS/2009 is a data processing unit. It was argued in both the cases that the units in question did not constitute factory and, therefore, Section 390 of the MMC Act was not attracted. The learned Magistrate had relied on a Judgment of a learned single Judge of this Court in D.V. Shetty v. Bombay Municipal Corporation and others, reported in 2004 (2) Mh.L.J. 284 for 3 APPLN-GR-581.11 holding that the units in question were not covered by the provisions of Section 390 of the MMC Act and therefore no permission was required to be obtained. Consequently, he held that no offence was made out. Aggrieved thereby, the applicant has sought leave to file appeals. 3. I have heard the learned counsel for the applicant and the learned counsel for the respective respondents. The learned counsel for the applicant submitted that Section 390 of the MMC Act does not restrict necessity of permission for factories. He submitted that the Section also provides for obtaining permission for establishing a workshop or workplace and therefore since the establishments of the respondents in the two cases could be called workplaces where power is employed, the establishment of such units, without obtaining the requisite permission, attracted penal consequences under Section 471 of the MMC Act. He submitted that the Judgment in D.V. Shetty s case (supra), which imported the definition of factory from the Factories Act, 1948 could not be said to be laying down the correct law. The learned counsel submitted that it would be impermissible to refer to a definition from 4 APPLN-GR-581.11 another Act and in any case, Section 390 also refers to workshops and workplaces. Therefore, according to him, leave ought to be granted and the matters be referred to a larger Bench for considering the correctness of the Judgment in D.V. Shetty s case. 4. The learned counsel for the respondents submitted, first, that the Judgment in D.V. Shetty s case is not based on the definition of factories in the Factories Act, though some part of the Judgment is devoted to the question as to what is a factory. The Court had actually considered the placement of Section 390 in Chapter XV of the MMC Act which deals with sanitary provisions enacted for the purpose of taking care of nuisance which is likely to be caused to the residents of the locality. The learned Judge has observed that factories create some sort of noise, tremor or tremors and on that count the inhabitants are likely to suffer nuisance. The Court held that I.T. Units are unlikely to create such types of nuisance for the inhabitants in the localities. Reference to the definition of factory and manufacturing process in Clauses (m) and (k) respectively of Section 2 of the Factories Act came because it was argued on behalf of the 5 APPLN-GR-581.11 prosecution that infotech units fall under the purview of Section 2 of the Factories Act and Section 390 of the MMC Act. In this context, the discussion about factories came in the Judgment. The Judgment is not based on the premise that Section 390 applies only to factories, as defined under the Factories Act. It is to be noted that the observations in a Judgment have to be distinguished from the words used by the Legislature. The discussion in a Judgment cannot be as precise as a dictate of Legislative would be and therefore the discussion cannot be interpreted in the manner the learned counsel for the applicant wants. The learned counsel for the respondents submitted that while interpreting the words in Section 390 of the MMC Act, the principle of noscitur a sociis would have to be applied and for this purpose relied on a Judgment of the Supreme Court in Maharashtra University of Health Sciences and others v. Satchikitsa Prasarak Mandal and others, reported in (2010) 3 SCC 786. Paras 27, 28 and 31 from the Judgment may be usefully reproduced as under: 27. The Latin expression ejusdem generis which means of the same kind or nature is a principle of construction, meaning thereby when general words in a 6 APPLN-GR-581.11 statutory text are flanked by restricted words, the meaning of the general words are taken to be restricted by implication with the meaning of the restrict words. This is a principle which arises from the linguistic implication by which words having literally a wide meaning (when taken in isolation) are treated as reduced in scope by the verbal context . This principle is presumed to apply unless there is some contrary indication [see Glanville Williams, The Origins and Logical Implications of the Ejusdem Generis Rule, 7 Conv (NS) 119]. 28. This ejusdem generis principle is a facet of the principle of noscitur a sociis. The Latin maxim noscitur a sociis contemplates that a statutory term is recognised by its associated words. The Latin word sociis means society . Therefore, when general words are juxtaposed with specific words, general words cannot be read in isolation. Their colour and their contents are to be derived from their context. {See similar observations of Viscount Simonds in Attorney General v. Prince Ernest Augustus of Hanover (1957 AC 436 : (1957) 2 WLR 1 : (1957) 1 All ER 49 (HL)}, AC at p. 461} 31. This Court while construing the principle of ejusdem generis laid down similar principles in Kavalappara Kottarathil Kochuni v. State of Madras (AIR 1960 SC 1080). A Constitution Bench of this Court in 7 APPLN-GR-581.11 Kochuni speaking through Subba Rao, J. (as His Lordship then was) opined: (AIR p.1103 para 50) 50..... The rule is that when general words follow particular and specific words of the same nature, the general words must be confined to the things of the same kind as those specified. But it is clearly laid down by decided cases that the specific words must form a distinct genus or category. It is not an inviolable rule of law, but is only permissible inference in the absence of an indication to the contrary. (emphasis supplied) The learned counsel submitted that in view of these observations, since the words workplaces and workshops appear in the society of the word factory , the words workplaces and workshops would take their colour and content from the context. 5. Considering the fact that Section 390 is placed in Chapter XV of the MMC Act relating to sanitary provisions, it would be impermissible for the applicant to insist on prior permission for establishment of a workplace where only computers are used and 8 APPLN-GR-581.11 which are unlikely to cause any nuisance or annoyance to the inhabitants in the locality. In view of this, it cannot be said that the learned Magistrate erred in acquitting the respondents for the offence punishable under Section 471 of the MMC Act. In view of this, leave refused in both the applications. Appeals dismissed. (R.C. CHAVAN, J.)