1. The petitioner has been convicted under Section 574 of the Calcutta Municipal Act and fined Rs. 50 for not carrying out certain improvements to a busti, of which he is the owner. The busti in question is situated in Lower Chitpore Road in the corner of Colootollah.
2. It appears that a report was made to the Commissioners so long ago as the 4th August 1904, stating that the busti was in an insanitary condition, and after due inquiries had been made, a notice was first served on the petitioner as the owner of the busti under Section 406 of the Act on the 28th Decern!er 1904. On the 2nd January. 1905 the petitioner by a letter objected to the notice, stating that the property had been leased out by him on a 40 years' lease to other persons, who had agreed, during the term of the lease, to erect buildings of the value of a lac of rupees; and he urged that the service of notice ought to have been made on them. On the 1st May 1905 the Municipality served another notice on the petitioner under Section 408 of the Act, directing him to carry out the improvements and on the same day the petitioner wrote to say that he could not carry them out in consequence of the lease. On the 12th May 1905 the Deputy Chairman of the Corporation wrote to the petitioner in reply that the General Committee had on the 7th April 1905 decided that they could not proceed against the lessees and that they must proceed against the petitioner as owner, and requesting that the work should be taken up at once. Thereafter, till the 8th January 1906, nothing whatever was done, and on that date the petitioner was served with a summons to answer a charge under Section 574 for not having carried out the improvements to the busti. On the 2nd of February the petitioner obtained an adjournment in order to apply to the General Committee; and his application was afterwards made and considered, but was rejected. On the 6th August, the case against the petitioner was brought on for trial before the Municipal Magistrate, and on the 29th August he was fined Rs. 50 under the provisions of Section 574 of the Act.
3. On the 17th September last, the present application was made, and on the 29th October a rule was granted calling upon the Municipal Magistrate of Calcutta and the Chairman of the Corporation to show cause why the conviction and sentence passed on the petitioner should not be set aside.
4. In support of the rule, it has been urged that the Corporation erred in the exercise of their discretion under Section 645 of the Act in issuing the notice on the petitioner as owner, because the petitioner, having granted a lease for 40 years, had ceased to exercise the rights of an owner so far as to be able to change the character of the land, and that, as the General Committee did not take into its consideration the circumstances in determining who should be served with a notice as owner, the whole proceeding was bad and should be set aside.
5. It has also been contended that the lease having been granted and the lessee having covenanted to erect buildings on the land to the value of a lac of rupees, the lessee would not be bound to allow the petitioner to enter into the land to carry out the improvements to the busti or to reimburse him for any expense incurred by him in executing the proposed improvements.
6. It has further been urged that it was for the lessee either to carry out the work, or to apply under Section 419 of the Act, to avoid the obligation.
7. The lease has been laid before us, and from its terms it appears that the lessee took the lease subject to the existing leases. We have not been informed what these leases were, but it would have been open to the lessee apparently, if served with a notice, to object to carry out the work on the ground that he was bound by those leases, and the object of the Act would thus have been defeated, and the Municipality prevented from securing the execution of the necessary improvements, and there by of removing a danger to the public health of the locality. In view, possibly, of such a deadlock, the Legislature has given, under Section 645 of the Act, the power to the General Committee to determine, in a case like the present, where there are gradations of owners or persons, who may be regarded as owners, or where there is a doubt as to who is the owner bound to perform the duty, to determine which of such owners shall be deemed to be bound to carry out the improvements. That discretion having been by law vested in the General Committee, we are unable to hold that this Court, in the exercise of its Revisional Criminal Jurisdiction, has any power to set aside or question the acts done in the exercise of that; discretion, if those acts have otherwise been done in. accordance with the provisions of law. In this case the General Committee admittedly determined after due enquiry that the petitioner was to be deemed to be the owner bound to execute the work, and the provisions of the Act appear to have been fully complied with. Also it does not appear that either the petitioner or the lessees had under the provisions of Section 165 of the Act their names entered in the Assessment Book as owners.
8. It has, however, also been suggested that this was not such a case of emergency as is contemplated by Section 436 of the Act, and therefore the whole proceeding was ultra vires. This argument is based on the fact that though the first enquiry was made in 1904, no steps to prosecute the petitioner were taken till June 1906. The basis of this argument is not in our opinion sound, as the delay in the proceeding appears to have been due to the objections raised by the petitioner himself. In fact, as has been urged by the learned Counsel for the Municipality, the petitioner in this case seems to have been treated with great consideration before the prosecution was ordered.
9. It is suggested in the petition of motion that the Magistrate was wrong in holding that the petitioner had his remedy under Section 622 of the Act, if the lessees did not allow him to go on the land to execute the improvements as directed by the Municipality. The learned Counsel however admits that he is not prepared to support this point.
10. The points taken in support of the Rule fail, and we accordingly discharge the Rule.
11. I agree in the judgment delivered by my learned brother, and I should only like to add that it is admitted that in the lease there is no stipulation providing by which party any improvements ordered by the Corporation under the Act are to be carried out. The obligation cast upon the owner to carry out such improvements under the Act, therefore, in my opinion remained prima facie unaffected by the terms of the lease.