1. This is a reference under Section 432 of the Code of Criminal Procedure by the Second Presidency Magistrate of Bombay.
2. The question of law referred arises upon the construction of Clauses 1 and 2 of Section 379A of the Bombay Municipal Act (III of 1888) as amended by Bombay Act V of 1905, and is as follows:-
When the owner of a building has let his rooms separately to individual tenants, and these cause overcrowding, is the notice, to abate the same, to be given, under Section 379A (1) of the Bombay Municipal Act, III of 1888, to the owner or to the tenants
3. Our answer is, the notice must be to the owner.
4. To construe properly Clause 2 of Section 379A, we must bear in mind what has gone before in clause 1 of the section.
5. The latter clause provides (omitting portions which are not material here) that 'where it appears to the Commissioner that any building or any room or rooms therein used for human habitation is overcrowded,' he may apply to a Presidency Magistrate 'to prevent such overcrowding,' and that the Magistrate 'may, by written order, require the owner of the building' to adopt measures (pointed out in the clause ) to abate the overcrowding.
6. It is obvious from the language of this clause that, whether the overcrowding is in the whole of the building or in only one room Or some rooms of it, the written order must be to 'the owner of the building.' It is the whole building as one undivided entity and its owner as a single person that are brought within the operation of the clause.
7. Then comes Clause (2). It deals with the case of a building sublet. It runs as follows:-'Where the owner of the said building has sublet the same, the landlord of the lodgers, tenants, or other actual inmates of the same shall, for the purposes of this section, be deemed to be the owner of the said building.' Here the words are 'the said building.'' The words 'any room or rooms therein' in Clause 1 are studiously excluded. Expressio unius est exclusio alterius. What is contemplated is the whole building taken as a single undivided entity, not one split into parts and sublet in portions.
8. The word 'owner', as defined in Clause (m) of Section 3 of the Act, means, when read in reference to any premises, 'the person who receives the rent of the said premises, or who would be entitled to receive the rent thereof, if the pemises were let.' This definition is wide enough to include the case of a building, which, having been let to a tenant with power to sublet, is sublet by the tenant, as well as the case of a building simply let. In the former case, the tenant who has sublet becomes 'the owner' and 'the landlord of the lodgers, tenants, or other actual inmates' of the building. He represents them for the purposes of the section, because, according to the law of landlord and tenant, there is no privity of contract or estate between a lessor and a sub-lessee, unless there is an agreement creating such privity. The clause we are construing recognises no such agreement for its purposes but keeps to the general law.
9. It follows, therefore, that when a building is sublet, the lessee who sublets is 'the owner of the building' within the meaning of the section.
10. But what if the proprietor of a building consisting of several rooms lets it in parts to several tenan :s with power to sublet, and each or some of these sublet 1 Are these tenants who have sublet 'owners of the building' within the meaning of Section 379 A?
11. They are not. The section contemplates a person who is 'owner of the building,' that is to say, of the whole building, which tenants of portions who have sublet are not. That is because each of them is a tenant receiving rent from his sub-tenant in respect of the room or rooms he has sublet. His right does not cover the whole building, where is it is the ownership of the building as one whole that is meant by the legislature for the purposes of the section. In that case the only person 'who receives the rent of'the building is its proprietor, who has let it to the tenants with power to sublet. He is, therefore, the only person falling within the definition of 'owner' and becomes liable under clause 1 of Section 379A
12. In the present case it seems to have been urged before the Magistrate for the person proceeded against as 'owner', that he did not come within the section, because the building, to which the complaint of overcrowding related, and which consisted of 24 rooms, had been 'sublet' by him to 24 tenants. This is rather a vague defence. 'Subletting' is by a person who holds the property as a lessee with power to sublet and becomes landlord in his turn. There is nothing on the record to show that the person here proceeded against is of that description, unless we are to take what was said in argiument before the Magistrate by the respective solicitors of the parties as amounting to that. But that is not so clear. In any case it the said person is himself lessee of the building and has 'sublet' to24 tenants, he is 'the owner' whom as sublet the building and who is 'the landlord' of the tenants within the meaning of Clause 2 of Section 379 A. If, being such a lessee he has sublet to 24 tenants with power to sublet on their part and each some of these has or have 'sublet', in the exercise of that power, it is he who still remains 'owner of the said building,' because as pointed out above, of no tenant who has sublet can it be said that he receives the rent of 'the said building' under standing the word as one undivided whole, without any reference to any individual room or rooms, on the true construction of Clause 2 read by the light of Clause 1 of Section 379A. Who then is the person receiving rent in respect of the whole building, and, therefore, 'owner,' as defined in Clause (m) of Section 3 but the lessee who has sublet -For the same reason, if the person proceeded against is the proprietor of the building and has let each room to a tenant with power to sublet, and the tenants, all or some, have sublet, the same result follows and he is liable as 'owner.'
13. His counsel has before us laid stress on what he calls the hardship that must result from such a construction of the section. Whether hardship or no hardship, we must adopt that meaning of the Statute which is in accordance with settled canons of construction and which does no violence to its language. 'No doubt great power is given to sanitaryji authorities, the Legislature thinking that it was tolerably certain that they would use those powers with discretion, and not tyrannically, We must, therefore, construe those sections and bye-laws without regard to consequences': per Bram well L.J. in Baker v. Mayor etc. of Portsmouth (1) And, after all, what is the hard. . ship here The owner is to be required to abate the nuisance of overcrowding. He has to pass the order on to his tenants and call upon them to vacate, if required by that order. That is no hardship to him; if any, it is on the tenants. But the continuance of danger to the public health and sanitation of the city arising from overcrowding is a much greater hardship. With this answer to the learned Magistrate's reference, the record and proceedings must be returned to him for disposal of the case accordingly. Costs of this reference on the respondent, Mr. Mathuradas Gokaldas.