1. This is an application by four persona who have been sentenced to pay a daily fine of Rs. 2 a day each for not carrying out the orders passed against them under Section 3, Eastern Bengal and Assam Disorderly Houses Act of 1907. The grounds on which the rule has been issued are : first, that the notices upon which the present order is based being ultra vire9 and without jurisdiction the order itself is not maintainable; and secondly, that the judgment is not in accordance with law since the cases of the individual accused have not been separately considered. As far as I can see, the ground stated first is well founded. These persons were ordered to vacate the house. Section 2 of the Act provides that a Magistrate may summon the owner, tenant, manager or occupier of the house to appear before him to show cause why the use of such house should not be discontinued for any of the purposes or in any of the ways described in the section. Admittedly notices on the3e parsons were to show cause why they should not vacate the house, an order which could not obviously be passed under the section. Apparently some order was passed on 9th October 1928 which directed the petitioners not to use the houses as brothels and allowed them eight weeks' time to discontinue such use. Against this order an application was made to the District Judge which was rejected on 28th March 1929. On 4fch April 1929 the following order was passed:
The Judge hag rejected their motion on 28th March 1929. Prostitutes have not vacated the quarters up to this time. They had sufficient time to vacate the houses used by them as brothels. They are directed to carry out the orders under Section 3, Act 2 of 1907, within seven days.
2. Apparently therefore at that time the order was to vacate the house. On 24th April 1929 the Magistrate passed the following order:
Prostitutes are still occupying the houses and they are still using the same as brothels. Thus it will appear that they have not carried out orders passed on them under Section 2(b), Act 2 of 1907 on 9th October 1928 and upheld by District Judge. They were given six weeks' time by this Court and after the Judge's confirmation of the order on 28th March 1929 owners and prostitutes ware given further time from 4th April 1929 to 24th April 1929 to closedown the brothels, but neither the owners of the houses nor the prostitutes living in the brothels have taken any notice of the said order.
3. For these reasons he imposed the final which is now the subject of the rule. It seems to me, as far as I can understand these somewhat contradictory orders of the Magistrate, that he directed that the prostitutes were to vacate the houses, and as they did not vacate the houses they were fined Rs. 2 per diem until they carried out the order. That order was obviously ultra vires. The Act does not provide that they should be ordered to vacate the houses but merely they should discontinue the use of the houses as brothels. The order of the Magistrate therefore seems to be ultra vires. The order inflicting fines in the present casa is accordingly set aside.
4. It will be open of course to the Magistrate to take proper proceedings against the petitioners under the Act if he thinks necessary.
5. The fines if paid must be refunded.