MUNICIPAL CORPORATION OF BOMBAY Vs. LRMALLANDAINE

JUDGEMENT

(1.) His Lordship, after referring to certain preliminary matters, remarked : As this appears to be the first case of its kind, we may point out that the person, who is said to have caused the nuisance, should be made a party to the proceedings, both in the inquiry which may be made by the Magistrate under Section 515 of the Act, and on the appeal in this Court. As I have already pointed out, in the present case the formal absence of the owner from the record is not material. But ordinarily be should be treated as a necessary party to such proceedings. As regards the Crown I do not wish to be understood as holding that the Government Pleader is entitled to be heard a case of this kind. It may be a point to be dealt with when the rules contemplated by Sub-section (2) come to be framed, as I think they should be framed.

(2.) Coming now to the merits of the case, I shall deal first with the points of law which have been raised on behalf of the appellant. So far as I have been able to follow the arguments of Mr. Coltman, the objection is that the order made by the Magistrate directing the Municipal Commissioner not to issue a licence under Section 394 of the Bombay Municipal Act is outside the scope of the authority of the Magistrate under Section 515. It is urged that it is not likely that the Legislature could have intended to confer such extensive powers upon the Court under Section 515 of the Act, so as to enable them to regulate the discretion of the Municipal Commissioner under the Act.

(3.) This section enables any person who resides in the City to complain to a Presidency Magistrate of the existence of any nuisance, or that in the exercise of any power conferred by Secs.224, 244, 245, 246 or 367, more than the least practicable nuisance has been created. Sub-section (2) provides that upon receipt of any such complaint, the Magistrate, after making such inquiry as he thinks necessary, may, if he sees fit, direct the Commissioner to put in force any of the provisions of this Act or to take such measures as to such Magistrate shall seem practicable and reasonable for preventing, abating, diminishing or remedying such nuisance.