1. This is a rule issued upon the Chief Executive Officer of the Corporation of Calcutta and upon the Honorary Municipal Magistrate of Cossipore to show cause why an order passed under Section 388, Calcutta Municipal Act, 1923, should not be set aside. The material facts are as follows : The petitioner was twice prosecuted and fined under Section 488, Calcutta Municipal Act, for contravention of the provisions of Section 386 (1) of that Act. The second of these two fines was imposed on 24th May 1941. Thereafter an application was made on behalf of the Corporation before a Magistrate other than the Magistrate, who convicted the petitioner under Section 488, for an order under Section 388, Calcutta Municipal Act. The Magistrate to whom the application was made, after an elaborate enquiry, came to the conclusion that the premises were kept in such a state as to be a nuisance and he directed under Section 388, Calcutta Municipal Act, 'that No. 74,Barrackpore Trunk Road should no longer be used as a factory for such purpose as manufacturing iron materials by J.N. Sarma & Sons or other person or persons after 29th October 1941 and during the meantime work will only be carried on at this factory between the hours 8. A. M. and 5 P. M.'
2. It is contended on behalf of the petitioner that the learned Magistrate, who passed this order, had no jurisdiction to do so. Our attention was drawn to Section 388, Calcutta Municipal Act. It provides that 'whenever a Magistrate imposes a fine on any person under S.488.... He may, if it is proved to his satisfaction that such premises are kept in such a state as to be a nuisance, also direct that they shall no longer be used for the said purpose.'
3. This section makes it clear that the Magistrate who imposed the fine is alone authorized to pass an order directing that the premises be no longer used for the said purpose. In our opinion this contention is correct and it must be held that the learned Magistrate, who passed the order under Section 388, had no jurisdiction to do so. On behalf of the Corporation, it has been argued that though the learned Magistrate who passed the order had no jurisdiction to do so under Section 388, Calcutta Municipal Act, he had jurisdiction to do so under Section 535 of that Act and that in purporting to pass the order under Section 388 he committed a mere irregularity. In our opinion, there is no substance in this argument. The proceedings before the Magistrate purported to be under Section 388 and the learned Magistrate applied his mind only to Section 388. We are not satisfied in any case that Section 535 would apply to a case of this nature. In the result the rule is made absolute and the order of the learned Magistrate passed under Section 388 is set aside.
4. I agree.