1. This Rule was issued by this Court calling upon the Municipal Magistrate of Calcutta to show cause why the conviction of the petitioners under Section 574 of the Calcutta Municipal Act read with Section 408 and the sentences of fine imposed upon them should not he set aside.
2. It is not necessary to go into an elaborate examination of the facts of this case, but it is sufficient to state that the General Committee of the Corporation caused a written notice to be served upon the owners of the property in question calling upon them to carry out improvements under Section 408 of the Calcutta Municipal Act. At the time when this notice was served upon them, the property was the subject-matter of litigation, namely, a suit for partition was then pending on the Original Side of this Court. A decree for partition was made on the 15th of May 1905, and on the very next day the petitioners gave notice to the Corporation under Section 419 of the Calcutta Municipal Act, that they intended to make such changes in the property as would take the land out of the category of bustee lands. Meanwhile, however, on the 2nd May, an application had been made to the Municipal Magistrate by the Corporation for the prosecution of the petitioners under Section 408, read with Section 574.
3. It is now contended before me that the conviction ought to be set aside, inasmuch as no offence has been committed within the meaning of Section 574 read with Section 408. Section 574 (I am quoting so much of it as may be supposed to have any application to the facts of the present case) provides that 'whoever fails to comply with any direction lawfully given to him or any requisition lawfully made upon him under any of the clauses' specified in that section, Section 408 being one of the sections so specified--'shall be punished with fine, which may extend to the amount mentioned in that behalf in the third column of the said table.'
4. It has been argued by the learned Counsel for the petitioners that the direction which, it is alleged, they failed carry out, was not lawfully given under Section 408 of the Calcutta Municipal Act, because, at the time when the said direction was given, it was impossible for the owners to carry it out. He further contends that Section 408 must be reasonably construed and that the directions which may be given to an owner to carry out improvements in respect of bustee lands under that section must be such as the owner is in a position to carry out. In my opinion this contention is well founded and ought to prevail.
5. At the time when the notice under Section 408 was served, the property, as I have stated, was the subject-matter of litigation; a suit for partition of the property was then pending on the Original Side of this Court. During the pendency of that litigation, it was not open to the owners, either individually or collectively, to alter the property by carrying out the improvements, which they were called upon by the Corporation to make. In my opinion therefore no offence has been committed within the meaning of Sections 408 and 574 of the Calcutta Municipal Act. If any question of bona fides be raised, it is obvious from the circumstances of the case that the petitioners were acting with due diligence and perfect bona fides. The decree for partition was made on the 15th May 1905, and the title of the different owners was determined on that date. On the very next day, the petitioners gave notice to the Corporation that they were going to deal with the property and to change its character so as to take it out of the category of bustee land.
6. The result therefore is that the Rule is made absolute and the conviction and sentences are set aside. The fines, if paid, must be refunded.