Emperor vs Dattatraya Ramchandra Naik

Broomfield, J.—This is an application for revision of an order of the Honorary Magistrate, Municipal Court, imposing a fine of Rs. 25 on the applicant u/s 384A of the City of Bombay Municipal Act (Bom. III of 1888). The applicant is the owner of several chawls situate in Curry Road, Bombay, and occupied by mill-hands. One of the tenants in one of the chawls was keeping a goat and the Municipality took proceedings u/s 384A against the tenant, the applicant and his rent collector. The applicant has been convicted and fined as already stated and the proceedings against the others have been withdrawn. The question in this revision application is simply whether the owner of the premises is liable u/s 384A.

The language of the section is as follows:

Where a building or any portion thereof is used or intended to be used for human habitation and any portion of such building is used for any of the following purposes, namely,

(a) for keeping any horse, cow, buffalo, bullock, goat or donkey, or

(b) as a godown or place for the storage, in connection with wholesale trade, of grain seeds or groceries,

the Commissioner may, if it shall appear to him necessary for sanitary reasons to do so, by written notice require the owner or occupier of such building to discontinue the use of such building for any such purpose ; provided that the Commissioner may permit such use subject to such conditions as he may think fit to prescribe.

It is contended on behalf of the applicant that the owner is only liable under the language of the section if he himself is using the premises but not otherwise. We think that this contention must be accepted. In our opinion the language used is not appropriate to the case of the owner unless he is also the occupier and uses the premises. A person who is not in occupation cannot, according to the ordinary use of language, discontinue the use of the premises for any of the purposes mentioned in the section. He might cause the use to be discontinued, but that is not the same thing. The learned advocate who appears to oppose the application points out that one of the meanings of the word "discontinue" according to Webster is "cause to cease." But to cause a thing to cease is not the same as to cause another person to discontinue it, and we are not satisfied that the latter meaning can be intended in the present case. It is obvious that it may not be in the power of the owner to cause the use of the premises for any particular purpose to be discontinued by his tenant. Apart from a special covenant he would have no authority over his tenants to prescribe the manner in which they should use the premises demised and he could only comply with the section by evicting the tenants, which in many cases he might not be able to do.

Our attention was also drawn to the fact that in the following Section 385 the word "occupier" only is used which would include the owner supposing he happens to be also the occupier, and it is suggested that the construction of Section 384A for which the applicant contends would render the use of the word "owner" in that section superfluous. But as a matter of drafting it would seem to be optional whether one uses the expression "owner or occupier" or the word "occupier" only to cover the case where the owner is to be made liable when he is in occupation. These Sections 384-A and 385 were inserted in the Act at different times, the first in 1916 and the second in 1920. I do not think that we should be justified in inferring from the fact that the word "occupier� alone is used in Section 385 that the words "owner or occupier� in Section 384A render the owner liable whether he is in occupation or not. The provision in question is a penal provision; the applicant is punished by a criminal Court for an alleged breach of the section; and according to a well-recognized rule the section must be construed strictly. We are not satisfied; that the legislature has made its intention clear that in a case like this the owner is to be held liable when he is not himself using the premises for any prohibited purpose.

We make the rule absolute, set aside the conviction and order the fine to be refunded.