1. The finding of the Magistrate is that the accused is one of the joint owners of the land in question on which about a hundred bullocks are kept, some in huts and some in the open, the bullocks being plied for hire ; that the place is not licensed by the Municipal Commissioner under Section 394 of the Bombay Municipal Act. The accused was charged with using the place without having taken out a license. The defence was that the bullocks did not belong to the accused and that he did not keep them or use the place for keeping them; that the bullocks belonged to tenants who had hired different pieces of the ground and put up huts and were keeping the bullocks. The Magistrate finds that the accused knew ever since March 1910 that bullocks were kept on the land and allowed it, and actually contemplated building a bullock stable, and that such rent as was received for the land was taken by him.
2. The matter comes up on revision before us upon conviction of the accused on these facts.
3. It is contended for the petitioner that the bullocks are kept upon certain vacant ground forming part of a large area belonging to the accused, and that they are not actually kept upon the plots which are leased out to tenants.
4. That contention does not appear to be consistent with the finding of the Magistrate that some of the bullocks are actually kept in the tenants' huts. I will however deal with the case upon both assumptions ; first, that the bullocks are kept upon the land leased out to the tenants, and, secondly, that they are kept upon waste land not leased out. In either case we must assume that they were so kept with the knowledge of the accused. Upon the first assumption we have the authority of a Bench of this Court, in a case decided on the 2nd December 1897 (Criminal Reference No. 105 of 1897) (1897) 4 Bom. L. R. 945 that if the owner of premises without a license allows such animals to be kept therein, whether on payment of a fee or otherwise, he should be considered to use his premises for that purpose. This appears to be in accordance with the decision in Regina v. Heyworth (1866) 14 L. T. N. S. 600, where the question was as to the liability for using a place as a slaughter-house without a license under Section 126 of 10 & 11 Vic. c. 34. That section provided that 'every person who, without having first obtained such license as aforesaid, uses as a slaughter-house any place not so used at the passing of the special Act, shall for each offence be liable.' It was held by Mr. Justice Lush that ' the owner uses the place by letting it out. The license is not to the person, but to the place, and the penalty is not imposed on every person who shall slaughter cattle in an unlicensed place, but on every person who uses a place without a license.'
5. We have been referred to a decision of another Bench of this Court in Emperor v. Mirsa Mahomed Shirazi (1902) 4 Bom. L. R. 943 in which the Court held that where the owner of premises has leased them out for a term of three year;-, he would not be liable under the section for the acts of his tenants which he could not control. Those are very different facts from the facts of the present case.
6. The alteration in the section when re-enacted in the Act of 1888, which is referred to in Emperor v. Mirza Mahomed Shirazi, has been relied upon for the petitioner. We are not prepared to adopt the view of this Court in that case as to the reason for alteration, for upon the facts of this case the decision in Criminal Reference No. 105 of 1897 (1897) 4 Bom. L. R. 945n is directly in point and is supported by the English case above cited. Therefore, if the petitioner let out the land upon which bullocks were kept he would be liable under the section having taken rent with the knowledge of the purpose for which the land was used by his monthly tenants. On the other hand if the land used was wasteland for which the tenants were not paying rent, but which the landlord (the petitioner) permitted to be used out of kindness to the tenants, we think, he would clearly be using the land for bullocks, without a license, and would, therefore, be liable to conviction under the Act. We discharge the rule.
7. I agree. One of the uses to which this land was put, to the knowledge of the accused, was for keeping bullocks without a license which were let on hire, and that being so, in my opinion, he 'used' the premises and so brought himself within Section 394 of the City of Bombay Municipal Act, 1888.