1. In this case, a Rule was issued on the Municipal Magistrate and also on the Chief Executive Officer of the Corporation, Calcutta, to show cause why the conviction of the petitioner Musammat Khairunnessa Bibi under Section 271 of the Calcutta Municipal Act and a fine of Rs. 25 under that section passed on her should not be set aside on the ground that the petitioner being owner of the land and receiving ground rent only and not being the owner of the structures thereon could not be convicted for failure to provide connected privies for the use of the occupiers of those structures and that, even if it be held that the owner of the land as well as the owner of the building thereon are both owners of the premises, the owner of the building should be held to be the person primarily iable for the provision of privies necessary for the buildings.
2. The facts of the case are that the petitioner was ordered to provide connected privies at premises No. 11-7, Hazi Zakaria Road, by a notice under Section 271 of the Calcutta Municipal Act and has been prosecuted and convicted for failing to carry out the order. Her defence is that she is the owner of the land which she has leased out to her tenants who have constructed huts thereon and are living in them. She maintains that the tenants are occupying the premises and not she, and that are the persons who should be served with the notice under Section 271 to provide for the necessary sanitary accommodation. The section is worded:
When any premises intended for human habitation are without privy or urinal accommodation or if the corporation are of opinion that the existing accommodation therefore available for the persons occupying the premises is insufficient, inefficient or for sanitary reasons objectionable, that Corporation may, by written notice, require the owner of such promises to provide such or such additional privy or urinal accommodation as they prescribe.
3. Admittedly, the petitioner is not owner of the huts. She is simply the owner of the land and the structures erected thereon belong to her tenants on the land to whom she had leased out the land. In the ordinary sense of the words 'Premises intended for 'human habitation' mean structures on the land. No doubt, throughout the Municipal Act the word 'Premises' is used both with reference to land and buildings. But where the section refers to 'premises intended for human habitation' it obviously seems to refer to structures and not to land. The requisition is to be made upon the owner of the premises and, therefore, upon the owner of the structures erected upon the land. The learned Municipal Magistrate interprets the word 'owner of the premises' in this case to be to owner of the land because he says that Section 271 should be read with Section 285 of the Municipal Act and that otherwise Section 285 becomes meaningless and redundant. I do not understand the reasoning of the learned Magistrate. Section 285 merely says:
When under the provisions of this chapter or of Such. 15 the Corporation may require the owner of any premises to carry out any work, they may, if they consider it desirable so to do, require the occupier of the said premises to carry out such work, and the occupier shall be bound to comply with the requisition
that is to say, they may either require the owner of the house to carry out the work or the occupier of the house so to do. Section 285 does not throw any light upon the interpretation to be put Upon the words 'owner of such premises' in Section 271 of the case The Municipality of Bombay v. Shapurji Dinshaw 20 B. 617, which appears to be in all fours to the present case is distinguished by the learned Magistrate on the ground that the word 'owner of the premises' in that case is to be governed by the Bombay Municipal Act whereas the present case is under the Calcutta Municipal Act. But there is no reason to think that the word 'premises' in Section 248 of the Bombay Municipal Act has got a different meaning from its meaning in Section 271 of the Calcutta Municipal Act. Section 248 states, that
if it appears to the Commissioners that any premises should be provided with a privy or...the Commissioners may, by a written notice, require the owner of such premises to provide for such a privy.
4. In the case referred to, the owner of the premises was held to be the owner of the building and not of the land, It seems to me that, in any case, in the first instance, the notice should have been issued upon the owner of the structures which were built on the land not upon the owner of the land.
5. This Rule, is, accordingly, made absolute. The conviction and the sentence are set aside and the fine, if paid, will be refunded.