1. This rule was issued on the learned Chief Presidency Magistrate to show cause why the conviction of the petitioner under Section 171-A, Calcutta Improvement Act, should not be set aside. The offence alleged against the petitioner was that he failed to comply with a notice served upon him by the Trust directing him to remove certain masonry structures at 4A and 4B, Old Ballygunge Road. It appears in the charge that notices were issued upon him as owner of the structures and lessee of the land on which they stood. The proceedings were instituted upon the complaint of an assistant valuer of the Improvement Trust. The complaint stated that he was authorized to institute and conduct the present proceeding against the defendant, and then went on to set out the facts upon which the complaint was based.
2. The first ground urged in support of this rule is that the complaint in question was not in accordance with the provisions of the Act. We are of opinion that this is a ground of substance. Under Section 154 of the Act, the Chairman may, subject to the control of the Board, institute legal proceedings; that is to say the right to set the law in motion is vested in the Chairman subject to the control of the Board. The Chairman is further empowered under the Act to delegate certain of his own powers, duties or functions. This power is conferred by Section 35 of the Act. That Section provides however that functions vested in the Chairman under Section 154 of the Act may not be delegated. In the present case what happened was that the Chairman authorized the assistant valuer to institute legal proceedings, and to act otherwise as complainant on behalf of the Improvement Trust, in proceedings under Section 171-A of the Act. It seems to us that there can be no doubt that this was a delegation by order in writing of the power conferred upon the Chairman by Section 154 of the Act to institute legal proceedings, and that consequently in view of the exceptions mentioned in Section 35 of the Act, it was a delegation in contravention of law.
3. It was suggested on behalf of the opposite party that the procedure could not be questioned in view of the provisions of Section 160 (e), Calcutta Improvement Act. That Section however provides that proceedings shall not be questioned on the ground merely of any omission, defect or irregularity not affecting the merits of the case. We are however unable to hold that a direct contravention of the provisions of the Act itself can be treated as a mere omission, defect or irregularity. Moreover, the decision of the learned Presidency Magistrate cannot, in our opinion, be sustained on the merits, The evidence in the case, oral and documentary, raises the question of the respective positions of the three parties in these proceedings, that is to say the lessor, the lessee who is the petitioner, and the Improvement Trust. The judgment of the learned Magistrate is sketchy in the extreme, and he does not appear to have applied his mind to the consideration of the evidence which was before him to establish any of these positions. For this reason also we think that the finding at which he has arrived cannot be upheld. This rule is accordingly made absolute, and the conviction of and the sentence passed on the petitioner are set aside. The fine if paid must be refunded.
4. I agree and desire to add only that under Section 171-A of the Act one of the most important questions is whether the person proceeded against is the owner for the time being, within the meaning of the Section, of the structure or building in question. In this case it appears that a good deal of evidence was given for the purpose of establishing the ownership of the building with which this proceeding was concerned. The Magistrate's judgment contains no discussion whatever of that evidence and it is impossible to say, upon reading the judgment, that the petitioner has been found liable because the Magistrate was satisfied that he was the owner of the building in question. My learned brother agrees with me that it would be open to the opposite party, if so advised, to proceed against the petitioner according to law.