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Emperor Vs. Byramji Pudumji (No. 2) - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberCriminal Application for Revision No. 38 of 1919
Judge
Reported in(1919)21BOMLR761
AppellantEmperor
RespondentByramji Pudumji (No. 2)
Excerpt:
cantonment code, 1912, rule 97-building in a ruinous condition cantonment authority-notice of removal.;it is competent to a cantonment authority, in issuing a notice under rule 97 of the cantonment code of 1912, to require the owner to do one of the two things, viz., to remove the building or to cause repairs to be made. it is not necessary that the notice must always be in the alternative either to remove or to repair, the choice lying with the owner. - - but on a further consideration i feel satisfied that the argument is more plausible than sound, and that the words of the section convey the meaning that the option is given to the cantonment authority of deciding, when any building is in a ruinous state or in any way dangerous to the occupier, whether the owner shall be required to..........to the occupier or to the public, the cantonment authority may, by notice in writing, require the owner or occupier thereof forthwith either to remove the sumo or to cause such repairs to be made as it may think necessary for the safety of the occupier or of the public, etc. 2. the point arises in this way: the cantonment authority sent a notice under this section to the applicant to remove a building and the applicant says that the notice was not a legal notice, because under the section it had to be a notice to him, he argues, either to remove or to cause repairs to be made. so we have to choose between two alternative meanings of these words. do the words describe the notice and must the notice always be in the alternative either to remove or to repair, the choice lying with the.....
Judgment:

Heaton, J.

1. The only point as to which it is necessary for us to express an opinion, is the meaning of Rule 97 of the Cantonment Code of 1912. Rule 97 runs as follows:-

Where any building, wall or structure, or anything affixed thereto, or any bank or tree, is, in the opinion of the Cantonment authority, in a ruinous state or in any way dangerous either, in the case of an occupied building, to the occupier or to the public, the Cantonment authority may, by notice in writing, require the owner or occupier thereof forthwith either to remove the sumo or to cause such repairs to be made as it may think necessary for the safety of the occupier or of the public, etc.

2. The point arises in this way: The Cantonment authority sent a notice under this section to the applicant to remove a building and the applicant says that the notice was not a legal notice, because under the section it had to be a notice to him, he argues, either to remove or to cause repairs to be made. So we have to choose between two alternative meanings of these words. Do the words describe the notice and must the notice always be in the alternative either to remove or to repair, the choice lying with the owner; or do the words describe a power given to the Cantonment authority, who may choose whether the notice shall be to remove or shall be to make repairs? I hold that the latter is the true interpretation. I do so, because, firstly, I think that the words themselves, apart altogether from any extraneous considerations, mean this. And secondly, if we take extraneous matters into account, they seem to me to lead to the same conclusion. I gather that the meaning of the framers of this Code was to give the choice not to the owner, but to the Cantonment authority. If the framers of the Code had in view the interests of the public, the requirements of safety and of sanitation, it seems to me that it inevitably follows that the intention was to give the power to the Cantonment authority and not to leave the choice to the owner of the property.

3. I think, therefore, that the Magistrate's order was correct and that the rule should be discharged.

Shah, J.

4. I agree. I desire to add that at one stage of the argument I was impressed with the contention urged by Mr. Velinkar that under the rule an option of removing the building or of effecting the repairs which may be specified by the Cantonment authority should be given in every notice to the owner. But on a further consideration I feel satisfied that the argument is more plausible than sound, and that the words of the section convey the meaning that the option is given to the Cantonment authority of deciding, when any building is in a ruinous state or in any way dangerous to the occupier, whether the owner shall be required to remove the same or whether he shall be required to cause such repairs as may be necessary for the safety of the occupier or the public. It is also clear that, if due regard is had to the object and the scope of this rule, that is the interpretation which ought to be accepted. I am unable to see any force in the suggestion made on behalf of the accused that if it were intended that the option was not to be given to the owner in every notice given under this rule, the expression 'require the owner or occupier thereof forthwith either to remove the same or to cause such repairs to be made as it may think necessary for the safety of the occupier' would not be appropriate. I think that if the framers of the Code intended to give to the Cantonment authority the power of deciding whether under certain circumstances the building should be removed or whether it should be repaired in a particular manner, the expression used would be appropriate.


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