Case: Chairman of the Municipal Commissioners of Howrah Vs. Shalimar Wood Products &amp; Another

and powers made, issued or conferred under the portions of this Act which have been so extended and in force at the date of such extension, shall apply to the said municipality or part, in supersession, of all corresponding rules, by-laws, orders, directions and powers made, issued or conferred under the said Bengal Municipal Act, 1932"and by explanation to that Section the extension of the Act did not put the Municipality of Howrah under the authority of the Corporation of Calcutta. By a Gazette Notification No. 260M of January 18, 1932 practically the whole of the Act, excepting the provisions which are not necessary, was extended to the Municipality of Howrah. The language extending the Act was as follows:Howrah. - No. 260M. - 18th January 1932. - In exercise of the power conferred by sub-section (2) of Section 541 of the Calcutta Municipal Act, 1923 (Bengal Act III of 1923), the Government of Bengal (Ministry of Local Self-Government) are pleased to extend to the Municipality of Howrah the following provisions of the Calcutta Municipal Act 1923, subject to the modifications and restrictions specified therein, which are shown in antique type."As a result of this extension S. 386 was extended to the Municipality of Howrah with this modification that in place of the word Corporation of Calcutta" the word "Commissioners" was substituted. In 1951 the Calcutta Municipal Act 1951 being West Bengal Act 33 of 1951 was enacted thus replacing Act 3 of 1923 which was therefore repealed. In the new Act corresponding provision to Ss. 540, 541 and 542 are Ss. 589, 590 and 591. Section 614 of the new Act provides that the provisions of Act III of 1923 as extended to the Municipality of Howrah shall continue to be in force until the provisions of the new Act are extended to that Municipality under the new Act. Thus the effect of the extension by the Notification under Ss. 540 and 541 of the Calcutta Municipal Act is that to the Municipality of Howrah an amended Act with an amended S. 386 is applicable and not S. 386 of the Act III of 1923.Keeping this in view we have then to see how far S. 38 of the West Bengal Fire Services Act 1950 (Act 18 of 1950) has affected the operation of S. 386 as it applies to the Municipality of Howrah. Section 38 provides that that section repeals S. 386 of the Act III of 1923 to the extent therein mentioned. It also repeals S. 370 of the Bengal Municipal Act as it applies to the Commissioners of Municipalities in Bengal. It does not apply to S. 386 as modified and is inapplicable to the Municipality of Howrah because in S. 386 as applicable to the Corporation of Calcutta the word used is "Corporation" and not "Commissioners" and wherever the word "Corporation" is used in S. 386 it is replaced by the word "Commissioners" in S. 386 as it applies to the Howrah Municipality. It cannot be said therefore that S. 38 repeals S. 386 of the Act III of 1923 as it applies to the Howrah Municipality.7. In a somewhat similar case a similar view was taken by the Privy Council. See Secretary of State v. Hindusthan Cooperative Insurance Society Ltd., 58 Ind App 259 : (AIR 1931 PC 149 ). In that case certain provisions of the Land Acquisition Act were incorporated by reference into the Calcutta Improvement Act 1911. By an amendment of 1921 the right of appeal to the Privy Council from the decision of the High Court was provided in matters falling under the Land Acquisition Act.It was held that the right of appeal so given was not applicable to the award of a tribunal under the Calcutta Improvement Act assessing compensation in respect of land acquired under the provisions of the Land Acquisition Act. Dealing with this matter Sir George Lowndes quoted with approval the observations of Lord Westbury in Ex parte , St. Sepulchre, (1863) 33 LJ (Ch) 372 at p. 376, and observed:"It seems to be no less logical to hold that where certain provisions from an existing Act have been incorporated into a subsequent Act, no addition to the former Act, which is not expressly made applicable to the subsequent Act, can be deemed to be incorporated in it, at all events if it is possible for the subsequent Act to function effectually without the addition."8. Although S. 38 of the West Bengal Fire Services Act extends to the whole of Bengal and to the extent there set out it repeals S. 386 of the Calcutta Municipal Act which applies to the Corporation of Calcutta and S. 370 which applies to the other Municipalities of Bengal yet it does not affect the operation of S. 386 of the former Act as modified and extended to the Municipality of Howrah by the notification which has been set out above. The reason for that is that the language of S. 386 has been modified to make it appropriate in its application to the Municipality of Howrah and for that purpose in place of the word "Corporation" the word "Commissioners" has been substituted. Thus modified it is not S. 386 of the Calcutta Municipal Act but a different Section. Therefore what S. 38 of the West Bengal Fire Services Act repeals is S. 386 of the Calcutta Municipal Act and not S. 386 of that as modified and applied to the Municipality of Howrah. It may look rather anomalous but that is what the effect of the modification of the language is. In our opinion therefore the contention of the appellant is well founded and S. 38 of the West Bengal Fire Services Act does not repeal S. 386 as modified and as applicable to the Municipality of Howrah. From the point of view of the respondent the result may be unfortunate but that is the interpretation of the language of the various Sections which are relevant in the present case.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]As a result of this extension S. 386 was extended to the Municipality of Howrah with this modification that in place of the word Corporation of Calcutta" the word "Commissioners" was substituted. In 1951 the Calcutta Municipal Act 1951 being West Bengal Act 33 of 1951 was enacted thus replacing Act 3 of 1923 which was therefore repealed. In the new Act corresponding provision to Ss. 540, 541 and 542 are Ss. 589, 590 and 591. Section 614 of the new Act provides that the provisions of Act III of 1923 as extended to the Municipality of Howrah shall continue to be in force until the provisions of the new Act are extended to that Municipality under the new Act. Thus the effect of the extension by the Notification under Ss. 540 and 541 of the Calcutta Municipal Act is that to the Municipality of Howrah an amended Act with an amended S. 386 is applicable and not S. 386 of the Act III of 1923.Keeping this in view we have then to see how far S. 38 of the West Bengal Fire Services Act 1950 (Act 18 of 1950) has affected the operation of S. 386 as it applies to the Municipality of Howrah. Section 38 provides that that section repeals S. 386 of the Act III of 1923 to the extent therein mentioned. It also repeals S. 370 of the Bengal Municipal Act as it applies to the Commissioners of Municipalities in Bengal. It does not apply to S. 386 as modified and is inapplicable to the Municipality of Howrah because in S. 386 as applicable to the Corporation of Calcutta the word used is "Corporation" and not "Commissioners" and wherever the word "Corporation" is used in S. 386 it is replaced by the word "Commissioners" in S. 386 as it applies to the Howrah Municipality. It cannot be said therefore that S. 38 repeals S. 386 of the Act III of 1923 as it applies to the Howrah Municipality.Although S. 38 of the West Bengal Fire Services Act extends to the whole of Bengal and to the extent there set out it repeals S. 386 of the Calcutta Municipal Act which applies to the Corporation of Calcutta and S. 370 which applies to the other Municipalities of Bengal yet it does not affect the operation of S. 386 of the former Act as modified and extended to the Municipality of Howrah by the notification which has been set out above. The reason for that is that the language of S. 386 has been modified to make it appropriate in its application to the Municipality of Howrah and for that purpose in place of the word "Corporation" the word "Commissioners" has been substituted. Thus modified it is not S. 386 of the Calcutta Municipal Act but a different Section. Therefore what S. 38 of the West Bengal Fire Services Act repeals is S. 386 of the Calcutta Municipal Act and not S. 386 of that as modified and applied to the Municipality of Howrah. It may look rather anomalous but that is what the effect of the modification of the language is. In our opinion therefore the contention of the appellant is well founded and S. 38 of the West Bengal Fire Services Act does not repeal S. 386 as modified and as applicable to the Municipality of Howrah. From the point of view of the respondent the result may be unfortunate but that is the interpretation of the language of the various Sections which are relevant in the present case.