SUBALA DEVI Vs. CORPORATION OF CALCUTTA

JUDGEMENT

(1.) THIS is a Rule directed against the order of the, Municipal Magistrate of Calcutta dated 4 -3 -1952 convicting the petitioner under Section 488(2), Calcutta Municipal Act, 1923, and sentencing her to a daily fine of Annas lour from 14 -3 -1950 being the date of her first conviction under Section 488(1) of that Act amounting to a total fine of Rs. 180 -4 -0 upto 4 -3 -1952 which is the date of the order now complained of.

(2.) THE facts of the case may be briefly stated. The petitioner Subalabala Devi is the owner of premises No. 27/2, Jugal Kishore Das Lane. She was required by the Corporation 'to secure and repair the entire building except the portion collapsed and requisitioned to be demolished within seven days.' This was a requisition by the Corporation under Rule 4(1) of Schedule 18, Calcutta Municipal Act. She was convicted on 14 -3 -1950 under Section 488(1), Calcutta Municipal Act read with Rule 4(1) of Schedule 18 for non -compliance with the requisition. Even after the conviction the petitioner did not secure and repair the building. Thereafter the Corporation of Calcutta started the present proceedings on 2 -5 -1950 under Section 488(2), Calcutta Municipal Act for continuing the offence of non -compliance with the requisition. After repeated adjournments which she asked to comply with the requisition and after being granted such adjournments by the Municipal Magistrate she was again convicted on 4 -3 -1952 under Section 488(2), Calcutta Municipal Act by the order now complained of.

(3.) ON these facts it is contended by the petitioner that throughout the relevant time she has tried her best to get possession of the premises but has not succeeded yet and unless she does obtain such possession from the tenant it is not possible for her to secure and repair the building as required by the requisition of the Corporation. In aid of this contention reliance has been placed on the fact that she herself proved that the house was in a dangerous condition and required rebuilding and that her whole case in the Small Cause Court was that she required the premises for the purpose of building and rebuilding. While I cannot but have every sympathy for the petitioner in a situation such as this yet it will in my view be unjustifiable to permit such sympathy to override clear statutory provision enjoining the civic responsibility to secure buildings in a dangerous condition likely to harm and injure human life in the city. The Municipal Act makes special provision to meet such a situation. That provision is contained in Section 527, Calcutta Municipal Act, Under that provision the owner of a building may apply to the Small Cause Court when the occupier prevents the owner from complying with any provisions of the Municipal Act or of any Rule or Bye -Law made therein or with any requisition. The scheme laid down in the three different sub -sections of Section 527, Calcutta Municipal Act is clear. In such a case the owner may apply to the Court of Small Causes and that Court on receipt of such application from the owner may make a written order requiring the occupier of the building to afford all reasonable facilities to the owner for complying with the provisions of the Municipal Act or with the requisition thereunder. The scheme under this section makes it clear that within 8 days from the date of such order the occupier shall afford all such reasonable facilities to the owner for the purpose aforesaid. Sub -section (3) of that Section then proceeds to provide that in the event of the occupier's refusal to afford such reasonable facilities according to the order of Small Cause Court, the owner shall be discharged during the continuance of such refusal from any liability which such owner will otherwise incur by reason of the failure to comply with the provisions of the Municipal Act or any requisition thereunder. Now in this case when the petitioner was served with the notice under Rule 4(1) of Schedule 18, Calcutta Municipal Act she could have and should have proceeded under Section 527, Calcutta Municipal Act if she felt that her proceedings in the ejectment in the Small Cause Court after service of legal notice of ejectment on the tenants would take a long time, as they were bound to take. At any rate she should have moved under Section 527, Calcutta Municipal Act after her first conviction under Section 488(1) of the Act. But she did not adopt the procedure laid down under Section 527, Calcutta Municipal Act. If she had done so then in that event the tenant's refusal to afford reasonable facilities for repair would have discharged her from all liability for conviction by reason of Section 527(3), Calcutta Municipal Act.