GULAM KADAR INAMDAR Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) This is a reference made to this Court by the Additional Sessions Judge, Poona, and the reference comes to be made under the following circumstances. The accused is the owner of an open site bearing Nos. 103 and 104 in Shivaji Nagar, Poona. He has let out the land to members of wandering tribes and these wandering tribes have erected small huts on this land. These huts number about 157 and about 706 people reside in these huts. The Poona Municipal Corporation issued a notice upon the applicant calling upon him to build six latrines and sinks and bathrooms and arrange drainage within sixty days. The accused failed to comply with the requisitions contained in the notice. Thereupon he was prosecuted under Rule 11(1) (a) under Chapter XIX of the Bombay Provincial Municipal Corporations Act, and he was convicted by the Magistrate and fined Rs. 30. The Additional Sessions Judge has made a reference to us pointing out that in his opinion the conviction was bad and the order should be set aside.

(2.) The rule under which the accused is prosecuted provides that where any premises are without a water-closet, or privy or urinal or bathing or washing place, or if the Commissioner is of opinion that the existing water-closet or privy or urinal or bathing or washing place accommodation available for the persons occupying or employed in any premises is insufficient, inefficient or on any sanitary grounds objectionable, the Commissioner may issue a written notice. Now, one important fact which has got to be borne in mind in this case is that the accused is not the owner of the huts. He is the owner of the land. He has let out the land and his tenants have constructed the huts. Therefore, the tenants are entitled to the huts which stand on this land. "Owner" is defined in the Act as, when used with reference to any premises, the person who receives the rent of the said premises or who would be entitled to receive the rent thereof if the premises were let, and then that expression is further defined, but we are not concerned with that further definition. Therefore, with regard to these huts it is clear that the accused does not receive the rents, nor would he be entitled to receive them if they were let because if the owners of these huts were to let out these huts they would be entitled to receive the rents and not the accused. All that the accused would be entitled to receive is the rent of the land which he has leased to these tribes. "Premises" is defined as including messuages, buildings and lands of any tenure whether open or enclosed, whether built on or not and whether public or private, and Mr. Tarkunde's contention is that looking to the definition of "premises" it includes both buildings & open lands, and therefore applying that definition to Rule 11 (1) (a), premises in this context means not only the buildings but a5so the open land and therefore the accused as the owner of the open land is liable to provide the water-closets or privies if called upon to do so by the Municipality. Now, the definition of "premises" is an inclusive definition and Mr. Tarkunde is right that the definition of "premises" does not restrict that expression to buildings or structures. But the definition does not mean that in every case premises must necessarily mean both buildings and open lands. It would depend upon the context whether in a particular section "premises" means lands and buildings or only buildings or only lands. If the requisition is made under Rule 11 (1) (a) with regard to a building and if the complaint is that the occupants of that particular building do not have the necessary facilities in the nature of water-closets and privies, then "premises" in this rule can only mean the building and not the land on which the building stands. Conceivably there may be a case where a Municipality may call upon the owner of an open piece of land to construct water-closets or privies, and if the requisition is made in connection with the open piece of land, then undoubtedly in that context "premises" would mean land. There is no doubt in this case, looking to the notice served by the Municipality upon the accused, that the objection taken by the Municipality is that the facilities with regard to water-closets and privies is not sufficient looking to the large number of persons who reside in these huts. Therefore, the Municipality was thinking of the conveniences to be provided for these huts and not conveniences to be provided with regard to the open piece of land, and the scheme of this rule is that if conveniences are to be provided in a particular building, it is the owner of that building who is liable to carry out the requisition made by the Municipality, and as I said before in this case it is not disputed and it cannot be disputed that the owner of these huts is not the accused but the members of the wandering tribes who have constructed these huts.

(3.) There is a decision of this Court very much in point which is reported in - 'Municipality of Bombay v. Shapurji Dinsha', 20 Bom 617. In that case there was no privy accommodation for families dwelling in 22 houses built under the palm trees in an oart at Mahim. The oart belonged to a fazendar and the fazendar was called upon to provide privy accommodation. The fazendar was only the owner of the land and not the owner of the houses, and this Court consisting of Mr. Justice Jardine and Mr. Justice Ranade held that the fazendar was not a person liable as owner of the premises to provide privy accommodation under Section 248 of the Bombay Municipal Act III of 1888", the beneficial owner of the houses built on the fazendar's land being the owner within the meaning of the section. Mr. Justice Ranade who gave a concurring judgment with Mr. Justice Jardine pointed out (p. 625):