Holmwood and Fletcher, JJ.
1. This was a Rule calling upon the Municipal Magistrate to show cause why the fine on the petitioner should not be set aside on the ground that the drain called the common house-drain belongs to the landlord of the bustee and is not a place lawfully set apart for the discharge of drainage from the premises of the petitioner, and that the landlord is the person against whom, proceedings should be taken in respect of the drainage of the petitioner's house.
2. We have heard the learned vakil in support of the Rule and the learned vakil who shows cause for the Corporation in reply, and we are clearly of opinion that Section 299 does not operate against the petitioner in the present case. We are referred to Section 298, but that has merely a historical interest, for it is only alleged that it is under that section that this common bustee drainage was originally effected. That arrangement appears to have been that every hut in the bustee which had a surface drain connected with the private common drain of the landlord and that private common drain of the landlord discharged into the Municipal sewer at a distance outside the statutory limits. The learned Municipal Magistrate finds that this private common drain of the landlord must presumably be a place lawfully set apart for the discharge of drainage. In a case like this there should be no presumption as to the statutory powers of the Corporation. A place lawfully set apart for the use of the public by the Corporation must be a place over which the Corporation have acquired by some procedure under the statute a right to make use of private property as a public drain, and there is nothing to show in this case, and it is not even alleged, that the Corporation have obtained any powers to set apart this, place for the discharge of drainage. We, therefore, think that; it is still private property of the zemindar, and that the petitioner who is merely a tenant cannot be called upon to alter his connecting drain to suit the convenience of the Corporation: He certainly cannot be fined for neglecting to do so.
3. The Rule is made absolute and the order of the Municipal Magistrate discharged. The fine, if paid, must be refunded.