John Beaumont, Kt., C.J.
1. This is a revision application against the conviction of the accused by a Bench of Honorary Presidency Magistrates of offences under Sub-section 257(2) and 375 of the City of Bombay Municipal Act, 1888.
2. The accused was served with a notice on March 9, 1940, requiring him to do certain work covered by those sections. The only question is whether he is a person liable to be served with such a notice and required to do the work in question, and that depends entirely on the definition of the expression 'owner'. It is not suggested that the accused is an occupier, which is one of the words used in Section 375. The only question is whether he is an owner.
'Owner' is defined in Section 3(m) of the Act as meaning the person who receives the rent of the said premises, or who would be entitled to receive the rent thereof if the premises were let, and includes an agent or trustee who receives such rent on account of the owner, and an agent or trustee who receives the rent of, or is entrusted with, or concerned for, any premises devoted to religious or charitable purposes. It is suggested that these premises are devoted to charitable purposes. But there is no evidence that the accused is a trustee or concerned with the management thereof.
3. The position with regard to the receipt of rent at the date when the notice was served was this. Under a document, which is exhibit C, dated February 5, 1940, the accused and certain other persons, who are said to be trustees of wakf property, entered into an agreement with one Mohiuddin Bawa Saheb, under which it is recited that the parties of the first part, who are called the debtors, had obtained permission from the High Court to raise a loan of Rs. 20,000 and that they were at the moment in urgent need of a loan of Rs. 3,500, which the party of the second part, called the creditor, had agreed to advance. Then by the document the debtors gave to the creditor a right of collecting rent from the tenants of the property in question, and out of the rent he was to pay to himself a commission of twelve and a half per cent, and the balance of the rent he was to appropriate in reduction of the advance of Rs. 3,500. Whatever that document may amount to in law, whether it is an assignment of rent or power-of-attorney, it seems to me that as long as the loan or any part of it is outstanding, it is the creditor, and not the debtors, who can collect the rent. In my opinion, the expression 'receives the rent' in Section 3(m) of the City of Bombay Municipal Act is not used in any technical sense. The Court has to see whether the person charged with an offence under the Act is one who receives rent of the premises. No doubt he may receive the rent directly from the tenants or indirectly from an agent. But if he is not entitled to receive the rent at all, and does in fact not receive it, I do not think that he can be said to be an owner. Here the accused and his co-owners of the property have parted with the right to receive the rent. They cannot recover it, and, that being so, it seems to me that they are not owners within the meaning of the Act. I gather that the Bench relied upon a clause in exhibit C under which the debtors covenanted to pay the Municipal taxes and to attend to all Municipal notices and to carry out the requirements contained therein. But that is a matter between the debtors and their creditor. The creditor, if he complies with the notice, may have a right to recover the amount of his expenditure from the debtors. But a clause of that sort cannot affect criminal liability arising under the Act of Parliament.
4. In my opinion, therefore, the accused is not an owner within the meaning of the act, and, therefore, his conviction was wrong and must be set aside. Fine, if paid, to be refunded.