1. This is a Rule calling upon the Municipal Magistrate to show cause why the conviction and. sentence passed upon the petitioner should not be set aside on the ground that the Municipality, having assessed rates on the new building and having received them from the petitioner, have assented to his disobedience to the order.
2. The conviction which was passed upon the petitioner was for disobedience to an order made under Section 449 of the Calcutta Municipal Act directing him to demolish a certain building. The order to demolish the building was made as long ago 25th September 1905 and it appears, on the materials before us, that, since that order was made, the petitioner has been endeavouring to induce the corporation not to insist on obedience to the order but to come to terms with him and, on certain considerations, to allow him to disregard the order.
3. He was convicted of disobedience to the order in 1905 and he was also convicted again subsequently. The position now is that negotiations between the parties got as far as a draft agreement which was prepared sometime before April 1909, The draft has not yet been executed and it appears from what has been stated by the learned Counsel, who has argued in support of the Rule, that the parties are not at one as to the question of amount with reference to purchase of No. 1 Sibtola Street. That having been the state of things, this is the position: The Municipality have an order against the petitioner which prima facie the petitioner is bound to obey. The petitioner has not obeyed it but has embarked on a series of negotiations with the Municipality which have not yet ended in an agreement executed between the parties and, therefore, no circumstances have arisen which discharge the petitioner from his liability. The petitioner says that the Municipality have taken rates from him in respect of this very building. He says: 'the fact that you have taken these rates amounts to an acquiescence in they existence of this building, and, therefore, you are now precluded from enforcing this order against me to demolish it.' Looking at the whole history of the case, in our opinion) it cannot be said that the acceptance of not establishes that the Municipality have acquiescence in the disobedience of the petitioner this order, tip to the present time, according to the petitioner, there have been these regotiations in order that the parties may come to terms. The fact that the negotiations are confirming shows that the Municipality are not willing to surrender their right to have this order obeyed and I think that that is quite sufficient to show that, in fact, there was no acquiescence notwithstanding the acceptance of rates. If the petitioner's argument was well-founded, it would come to this that as long as the petitioner could keep the negotiations open between the Municipality and himself and could avoid complying with the order by amusing them with offers, so long he would be entitled to escape the payment of any rates in respect of the building which has been ordered to be demolished. That proposition seems to us to be so unreasonable that we cannot accede to the view that mere acceptance of rates, pending the negotiations between the petitioner and the Municipality, can amount to an acquiescence on the part of the Municipality in continuous, disobedience to this order. The point did arise in an unreported case, No. 871 of 1906, in which precisely the same point was taken. In that case it was stated that the fact that the Municipality had accepted rates did not amount to an acquiescence by them in continued disobedience to an order to demolish. The Judge has there pointed out that; as long as the building stood, the owner and occupier were liable to pay rate3 in respect thereto. In that case, the man had been fined from time to time and there were negotiations between him and the Municipality with a view to setting the matter on terms. That being so, the question as to the effect of payment of rate in that case is precisely the same as the effect of the payment of rates in the present case and we agree that, under the circumstances of this case, the receipt of rate by the Municipality does not amount to an acquiescence in the disobedience of petitioner to the order complained of.
4. The result is that the Rule is discharged.