JUMAN SADAGAR Vs. CORPORATION OF CALCUTTA

JUDGEMENT

(1.) This Rule has been is-issued to show cause why the conviction of the petitioner under Section 488 read with Section 271, Calcutta Municipal Act, (Act 2 B.C. of 1923) should not be set aside or such other or further order made as to this Court may seem fit and proper. The facts necessary to be stated are the following. The petitioner holds a certain property, to wit, premises No. 7 Gas Street, Calcutta, on a lease. The premises in question were in the occupation of a tenant Kissen Ram Shaw who, it is said, held the same under a registered kabuliat for two years from 8 December 1920 and on the expiry of the term has been holding over. In October 1927 the Corporation of Calcutta served a notice on the petitioner under Section 271, Calcutta Municial Act, requiring him to erect two connected privies in the premises. The petitioner, having failed to comply with this requisition, was convicted at first on 3 April 1928, and sentenced to pay a fine of Rs. 25 and again on 12 June 1928 and sentenced to pay a fine of Rs. 30. The present conviction against which this rule has been issued was upon an application in which it was stated that the petitioner continued in not complying with the aforesaid notice under Section 271 of the Act from 13 June 1928 to 10th September 1928.

(2.) The fact that there was non-compliance with the notice in question between the dates to which reference has just been made was admitted on behalf of the petitioner by the pleader who appeared for him before the learned Municipal Magistrate. The Rule that has been issued by this Court has been sought to be supported by reference to certain proceedings in other Courts and on a reference to which it has been argued that the conviction is not maintainable. I shall presently refer to those proceedings. The petitioner appears to have filed a suit in ejectment against the tenant being title Suit No. 715 of 1927 of the Court of the Munsif at Sealdah. This suit was filed sometime in the year 1927. It ended in a decree against the tenant Srikissen Ram on 19 July 1928. The petitioner states that when he tried to execute the ejectment decree for getting khas possession of the said premises, one Jiblal Shaw alleging that he was the tenant's brother filed a declaratory suit against the petitioner on 13th August 1928 being suit No 209 of 1928 in the Court of the Subordinate Judge at Alipore and on 14 August 1928 obtained an injunction against the petitioner restraining him from taking possession of the said premises. On being called upon to answer the charge with regard to which the petitioner has now been convicted he appeared before the Court and on 4th December 1928 placed all the facts before the Municipal Magistrate and upon that he was advised to make an application under Section 527 of the Act in the Small Cause Court of Sealdah in order to obtain facility for getting possession of the premises for the purpose of constructing the privies thereof.

(3.) The petitioner states that on his undertaking to make the said application the case was adjourned and on that he on 13 December 1928 did, in point of fact, file the said application in the said Court. That application, the petitioner states, is yet pending. On these facts, the petitioner contends that the order of conviction which was passed against him was one which was not justifiable.