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Emperor Vs. Mahomed Elias Patel - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai
Decided On
Case NumberCriminal Application for Revision No. 124 of 1943
Judge
Reported in(1943)45BOMLR899
AppellantEmperor
RespondentMahomed Elias Patel
DispositionApplication dismissed
Excerpt:
.....municipal act (bom. iii of 1888), sections 275, 278(2)-failure to repair bib-tap-conviction-whether notice wider section 278(2) necessary before prosecution and conviction-issue of notices under section 278(2) whether obligatory upon commissioner.;it is not necessary that before a person can be convicted for not complying with the provisions of section 275(1) of the city of bombay municipal act, 1888, he should be served with a notice under section 278(2) of the act.;under section 278(2) of the city of bombay municipal act, 1888, it is not obligatory upon the commissioner to issue any notice. the sub-section gives to the commissioner discretion to give notice or not. - - 2. the applicant is the manager of the haji ismail haji allanna family trust, and the charge against him was..........or to become due by him to such person the actual expenses incurred by him in complying with the notice served under sub-section (2) of section 278. it was therefore argued that even in respect of the obligation under section 275(1) it was necessary to serve him with a notice before he could be prosecuted and convicted for failing to keep the bib-tap in efficient repairs. in our opinion, there is no substance in this contention. in the first place, under section 278(2) it is not obligatory upon the commissioner to issue any notices. the sub-section gives to the commissioner discretion to give notice or not. sub-section (2) of section 275 merely gives an occupier the right to recover from the owner of the premises any amount that he might have expended in executing the necessary repairs.....
Judgment:

Rajadhyaksha, J.

1. This is a revision application against an order of the Honorary Presidency Magistrate, Municipal Court, Mazagaon, convicting the accused under Section 471 of the City of Bombay Municipal Act, 1888, for disobedience of the obligation imposed upon him under Section 275(1) of the Act.

2. The applicant is the manager of the Haji Ismail Haji Allanna Family Trust, and the charge against him was that he failed to keep in efficient repairs a bib-tap at 94-98, Victoria Road, Byculla, and also failed to comply with a notice requiring him to remedy the defect in the tap. At the time of the trial it was found that no such notice had been served upon the applicant. Therefore, the charge of disobedience of the notice issued to him under Section 278 of the City of Bombay Municipal Act was withdrawn. But in respect of the charge under Section 275(1) the applicant was convicted and sentenced to pay a fine of Rs. 75 or in default to suffer simple imprisonment for four weeks.

3. The principal contention taken on behalf of the applicant was that before the applicant could be convicted with respect to the obligations imposed upon him under Section 275(1) of the City of Bombay Municipal Act, 1888, it was necessary that a notice should have been served upon him under Section 278 of the Act. In this connection a reference was made to Sub-section (2) of Section 275 in which it has been laid down that when an occupier of any premises is served with a notice under Sub-section (2) of Section 278, he may, after giving to the person to whom he is responsible for the payment of his rent three days' notice in writing, himself have the repairs executed, and in such event he shall be entitled to deduct from any rent due or to become due by him to such person the actual expenses incurred by him in complying with the notice served under Sub-section (2) of Section 278. It was therefore argued that even in respect of the obligation under Section 275(1) it was necessary to serve him with a notice before he could be prosecuted and convicted for failing to keep the bib-tap in efficient repairs. In our opinion, there is no substance in this contention. In the first place, under Section 278(2) it is not obligatory upon the Commissioner to issue any notices. The sub-section gives to the Commissioner discretion to give notice or not. Sub-section (2) of Section 275 merely gives an occupier the right to recover from the owner of the premises any amount that he might have expended in executing the necessary repairs in pursuance of the notice that he might have received under Section 278. No such obligation has been imposed in respect of the duty cast upon an owner under Section 275(1). It is an independent obligation imposed by the Legislature that an owner shall keep in proper repairs every supply pipe connected with the municipal water works on such premises. On a reference to Section 471 which is the penal section it will be found that there are two distinct offences created by that section-there is one offence of disobedience of any requisition to remedy a defect to which attention of the owner or occupier might have been drawn by a notice under Section 278. Apparently such a notice was issued in this case, but it was not received by the applicant. He was therefore acquitted in respect of disobedience of the notice. But there is a separate offence (not dependent on the issue of a notice in the first instance) which consists in not keeping in efficient repair every pipe conveying water from the Municipal water works to such premises. No notice is required to be given in respect of keeping such works in proper repair, and it is not necessary that before a person can be convicted for not complying with the provisions of Section 275 he should be served with a notice under Section 278(2). In our opinion, therefore, the conviction recorded against applicant for disobedience of Section 275(1) is correct.

4. The second point urged by the learned advocate for the applicant was that the applicant was not an owner or an occupier of the premises. The word 'owner' has been defined in Clause (m) of Section 3 of the City of Bombay Municipal Act and includes an agent or trustee who receives rent on account of the owner. The applicant is the managing trustee of the Haji Ismail Haji Allanna Family Trust and is therefore, an 'owner' within the meaning of the word in Section 3 of the Act. In our opinion, therefore, there is no substance in this contention also.

5. The application therefore fails and must be dismissed.

John Beaumont, C.J.

6. I agree.


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