1. This is an application for an order in the nature of a mandamus to compel the Corporation to call for tenders in respect of the removal of the city refuse before giving effect to the proposals of the Special Committee appointed by it to consider the matter. This work has been done by Babu Bhoba Nath Sen since 1879 and has been carried out to the satisfaction of the Corporation. He has also during this period held a lease of the Dhappa Square Mile into which the refuse is dumped. The Corporation consider that it is advisable that the benefit of the lease and the discharge of the work of unloading should go to and be done by the same person. As the present lessee's lease will expire next year the question of its renewal has been before the Secretary of the Corporation, the Estates and General Purposes Committee and a Special Committee, and they after a full consideration of the matter have reported that it is advisable that the lease of the Square Mile and the work of the removal of city refuse should go together and be granted and made over to Babu Bhoba Nath Sen. The present proposals are, however, for a different arrangement than heretofore. At the present time Babu Bhoba Nath Sen pays a rental for the land and receives a sum of money for the work done by him. It is proposed now to grant him a lease on the terms that he do the work of unloading without charge. This proposal is about to be put before the Corporation. Another person, who desires to get for himself the contract for the unloading of the city refuse, objects to this being done. He and a ratepayer, whom he has associated with himself, say that the proposal of the Select Committee cannot be accepted without first calling for tenders. If there is a discretion in the matter, then the Corporation have full discretion. They know far better than I do what is the best proposal to adopt in the public interest. There is no reason whatever to suppose that they are not guided solely by the requirements of such interest. The charges made on this head in the petition are ridiculous. The point, however, before me is this, and it is a bare point of law, viz: Is the discretion of the Corporation controlled by the provisions of Section 88 of the Municipal Act, which requires that in the case of contracts for the execution of any work involving an expenditure of over Rs. 10,000, tenders should be called for. Had there been simply a contract for the unloading of the refuse at a certain charge then no doubt that section would have applied. This is not disputed. But the proposal here is that Babu Bhoba Nath Sen should do the work without charge as a term and condition of a lease of the 'Square Mile,' which is granted to him upon this and other considerations. Section 556 enables the Corporation to lease any property vested in them (and the Square Mile is so vested) on any terms they think fit. No tenders are required before the property is leased. No doubt an agreement for a lease is a contract though the lease when completed is a conveyance. Further, a covenant in the lease is a contract, and in this sense the covenant in respect of the lease is a contract. The question, however, is whether it is a contract within the meaning of Section 88 and governed by it. It is of course conceded that the law cannot be evaded by giving the form of a lease to a transaction which properly falls under Section 88. Whether this has been done must be determined on the facts of each particular case. A test, which may be applied, is this:Is the covenant one: which relates to the demised premises, or is it independent of them. In this case it so relates. The covenant and the lease are closely related to one another. The refuse is unloaded into the Square Mile with a view not only to the disposal of the former, but the reclamation of the latter. And experience has shown that this reclamation can be best effected when both the duty of unloading and the benefits of the lease of the land, are cast upon and vested in the same person. The fact which is relied on by the applicant that the lease is terminable upon a different mode being agreed to as to the disposal of the refuse so far from destroying the relation to which I have referred, on the contrary, confirms it. In my opinion the present case is not governed by Section 88 and it is not obligatory upon the Corporation to call for tenders. To hold otherwise would be to prohibit the Corporation from granting a lease without calling for tenders which the law does not require The rule is accordingly discharged with costs.
2. As the rule was served on Babu Bhoba Nath Sen and as in my opinion the latter was entitled to be heard separately, separate, costs are allowed to him and to the other; party to the rule, the Corporation.