TMI Blog1963 (10) TMI 28X X X X Extracts X X X X X X X X Extracts X X X X ..... ut a licence under s. 437 (1) (b) of the Calcutta Municipal Act, No. XXXIII of 1951, (hereinafter referred to as the Act) and fixed a fee therefore. The respondent however refused to take out a licence and consequently it was prosecuted under s. 537 of the Act. The respondent raised a number of points in defence, namely, (i) that the prosecution had not been properly filed; (ii) that the electric transformer house was neither a factory nor a place of trade, nor a place of public resort and therefore s. 437 (1) (b) had no application; (iii) that the use of the transformer house for converting high voltage alternate current into low and medium pressure direct current was neither a use which was dangerous to life, health or property nor the same was likely to create a nuisance; and (iv) that as s. 437 (1) (b) of the Act vests absolute power in the Corporation to form the opinion required thereunder, it was an unreasonable restriction on the freedom of trade guaranteed under Art. 19 (1) (g) of the Constitution and therefore that provision is unconstitutional. The Magistrate held that the complaint was properly filed. He further held that the transformer house. was meant for the t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e following purposes without or otherwise than in conformity with the terms of a licence granted by the Commissioner in this behalf, namely, (a) (b) any purpose which is, in the opinion of the Corporation (which opinion shall be conclusive and shall not be challenged in any court) dangerous to life, health or property, or likely to create a nuisance; (c) The contention on behalf of the appellant is that even though the opinion of the Corporation has been made conclusive and non-justiciable, the restriction on trade resulting from the imposition of licence-fee on the basis of such conclusiveness and non-justiciability is a reasonable restriction in the interest of the general public. On the other hand it has been urged on behalf of the respondent that by making the opinion of the Corporation in such matters conclusive and non-justiciable, the law makes it possible that any opinion of the Corporation, howsoever capricious or unreasonable it may be, must prevail and therefore the provision is an unreasonable restriction on the right to carry on any trade etc. enshrined in Art. 19 (1) (g). Reliance in this connection has been placed on the decision of this Court in Joseph Kuru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he circumstances of this case the restriction contained in the parenthetical clause ins. 437 (1) (b) by which the opinion of the Corporation has been made conclusive and non- justiciable, can be said to be a reasonable restriction on the right to carry on trade etc. enshrined in Art. 19 (1)(g). In Dr. N.B. Khare v. The State of Delhi,( [1950] S.C.R. 519.) this Court held that a law providing reasonable restrictions on the exercise of the rights conferred by Art. 19 may contain substantive provisions as well as procedural provisions and the court has to consider the reasonableness of the substantive provisions as well as the procedural part of the law. The parenthetical clause which makes the 6pinion of the Corporation conclusive and non-justiciable is in the nature of a procedural provision and we have to see whether in the circumstances of this case such a procedural provision is reasonable in the interest of the general public. It has been urged that the Corporation which is an elected body would exercise the power conferred on it under s. 437 (1) (b) reasonably and therefore the provision must be considered to be a reasonable provision. This in our opinion is no answer to the qu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to life, health or property or likely to create a nuisance. We have referred to these Acts and the provision in the Calcutta Municipal Act which was the predecessor of the Act to show that it is quite possible to work such a provision without the opinion of the Corporation being made conclusive and non-justiciable. The question therefore is whether this provision contained in the parenthetical clause in s. 437 (1) (b) can be severed from the rest of the provision. The principles governing severability were considered by this Court in R.M.D. Chamarbaugwalla v. The Union of India.( [1957] S.C.R..093 1) Seven principles were there laid down in that connection, of which three are material for our purpose, namely (1) In determining whether the valid parts of ,1. statute are separable from the invalid parts thereof, it is the intention of the legislature that is the determining factor. The test to be applied is whether the legislature would have enacted the valid part if it had known that the rest of the statute was invalid. (2) If the valid and invalid provisions are so inextricably mixed up that they cannot be separated from one another, then the invalidity of a portion must ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Such a provision in our opinion is a very reasonable provision in the interest of the general public and we do not see why it should be held that the Legislature would not have enacted such a provision unless the opinion of the Corporation was also to become conclusive and non-justiciable. The first proposition out of the three set out above is in our opinion clearly applicable to this case and we have no doubt that the Legislature would have enacted the provision contained in s. 437 (1) (b) without the parenthetical clause. So far as the second principle is concerned, we are of opinion that the valid and invalid provisions in s. 437 (1)(b) are not so inextricably mixed that they cannot be separated. On the other hand we are of opinion that they are distinct and separate and even if we strike out the parenthetical clause as to conclusiveness and non-justiciability what remains is in itself a complete code for the particular purpose independent of the invalid part. Therefore, the remaining provision contained in s. 437 (1) (b) can and should be upheld notwithstanding that the parenthetical clause providing for conclusiveness and non-justiciability is invalid. Finally we are of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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