Caspersz and Sharfuddin, JJ.
1. The question of law referred for the opinion of this Court, under Section 432 of the Criminal Procedure Code, is 'whether the accused is bound to move the High Court for taking steps for the carrying out of the requisitions of the notice under Section 408 of Bengal Act III of 1899, or whether the Corporation should have, with the leave of the High Court, served the notice under Section 408 upon the Receiver.'
2. The estate of the accused Haji Kassim Ariff Bham is in the hands of a Receiver appointed by this Court. It is beyond dispute that some one must carry out the requisitions under the Act. It was held in Fink v. Corporation of Calcutta (1903) I.L.R. 30 Calc. 721, that the Receiver is not the 'owner' of the premises he holds as Receiver, within the definition of the term as contained in the Municipal Act, and that he is not an agent or trustee in that behalf. It follows that the actual owner, Haji Kassim Ariff Bham, is the only person liable, as owner, to carry out the requirements of the law. The learned Counsel for the Corporation has cited Section 613 of the Act which affords relief to agents and trustees. It is sufficient to repeat that the Receiver is not a person falling within that category.
3. The real question is whether the owner or the Receiver ought to have moved this Court for directions to carry out the work. In our opinion, as the notice was duly served on the owner, and as the Receiver cannot be lawfully served with such a notice, it was incumbent on the accused, Haji Kassim Ariff Bham, to request the Receiver to comply with the notice, after taking the directions of this Court, and, on his failure to comply, to apply to the High Court, making the Receiver a party to his application. A similar liability was imposed on the owner as against his tenant in a case under the English Public Health Act, 1875, namely, in Parker v. Inge (1886) 17 Q.B.D. 584. Applying, the reasoning of the learned Judges in that case, if we suppose that this Court had refused the application of the accused, the latter would be entitled to satisfy the Magistrate that he had used all due diligence to carry out the requisition, and, in that event, if a conviction were had, the penalty would be nominal. On the same supposition, if the owner were helpless in the matter, the General Committee might, under Section 408 of the Act, proceed against the occupiers of the premises. We offer these observations because, as it seems to us, ample machinery exists, even in the present complication, for the carrying out of the improvement of bustees. In this case, the owner did nothing except plead his inability. That is not enough.
4. Let a copy of our order be transmitted to the Municipal Magistrate who will now proceed to dispose of the case conformably thereto.