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Bombay High Court
Emperor vs Lakshman Pandu on 15 November, 1927
Equivalent citations: (1928) 30 BOMLR 339
Author: Fawcett
Bench: Fawcett, Mirza


Fawcett, J.

1. This is an application to revise an order of the Presidency Magistrate, 5th Court, Bombay, under which he fined the petitioner Laxman Pandoo Rs. 10 for not complying with a Municipal notice to remove certain alleged insanitary sheds or huts under Section 380 of the City of Bombay Municipal Act. According to the record, the accused pleaded guilty to the charge, and the Magistrate thereupon passed sentence upon him. It is, however, contended for the petitioner that the Magistrate was under a misapprehension, because the petitioner was only asked by the Court whether the sheds had been removed and the petitioner replied to that in the negative. On the other hand, Mr. Kemp for the Municipality alleges that the petitioner was asked whether he pleaded guilty or not. Ordinarily in a case where the record shows that an accused pleads guilty, that record is treated as conclusive. In any case even assuming that the petitioner’s account is correct, it was open to him to tell the Magistrate, while answering his question whether the sheda had been removed, that he objected to the notice on the grounds that have now been put forward. We do not think that we could accept the petitioner’s account of the matter without at any rate first calling for a report from, the Magistrate as to the petitioner’s allegation about what occurred.

2. We have, however, gone into the legal point that is raised for the petitioner, and as we do not think that there is any substance in it, we do not think it necessary to call for the report that I have just mentioned.

3. The notice that was served upon the petitioner described him as the owner or occupier of the sheds or huts at a certain Wadi. Mr. Rao’s contention for the petitioner is that the sheds in fact belonged to certain tenants, who had erected these huts or sheds on the land of the master of the petitioner, and that the petitioner, therefore, was not their owner; nor was he their occupier, because the sheds were in fact occupied by mill-hands. Mr. Kemp, however, relies upon the general definition of “owner” in Clause (m) of Section 3 of the City of Bombay Municipal Act. This says that “‘owner’, when used in reference to any premises, means the person who receives the rent of the said premises…and includes an agent or trustee who receives such rent on account of the owner…”. He points out that it is admitted by the petitioner that the tenants of these two sheds hand over the rent to the petitioner for payment to his master in Bombay, and Mr. Kemp contends that he is either an agent or a trustee, receiving rent on account of the owner of the premises. Mr. Rao answers that this rent is paid to the petitioner merely as a matter of convenience, because the mill hands belong to the same caste as the petitioner and are poor people, and that the petitioner does not thereby become the agent or trustee within the meaning of this Clause (m) of Section 3. He also points out that Section 380 covers both the case of the owner of a hut or shed and the owner of the land, on which such hut or shed stands. This latter fact does not, however, in my opinion, make any difference. No doubt, if Section 380 contains something repugnant in the subject or context to prevent the general definition applying, then that definition could not be used in favour of the Municipality. But there is nothing in Section 380, which renders the definition of “owner” inapplicable either to the case of the owner of a hut or shed or to the case of the owner of the land on which such hut or shed stands. In each case the definition is one that can properly be applied without there being inconsistency with the rest of the section.

4. Therefore, I think the only question is whether, on the admitted facts that I have mentioned, the petitioner is an owner either of the hut or shed or the land on which the hut stands. No doubt the notice was not addressed to him as the owner of the land on which the hut stands; but that would not be a fatal objection. A notice may contain a description which is inaccurate, yet if it is covered by the terms of a statute, it is not thereby rendered invalid, But even if the description in the notice is taken to limit the case to the petitioner being an owner of the sheds within the meaning of the definition in Section 8, Clause (m), of the Act, I think the facts I have mentioned clearly bring him within that definition, because undoubtedly he receives rent for these huts, which goes into the pocket of his master. That would in ordinary language make the petitioner’s master the landlord of the sheds, as he recovers rent for them; and even if it is true that the sheds were not actually built by the owner but by some previous tenants, still it would have to be considered whether the principle of quidquid plantatur solo solo cedit does not apply, so as to make the owner of the soil the owner of the buildings that were put on the land. But whether that is so or not, this definition lays down that not only the person who ultimately receives the rent for a building, but also an agent or trustee receiving it on his account, can be treated as an “owner. “It may be convenient for the mill-hands to pay rent to the petitioner but it seems that it is equally convenient for the master to receive the rent through the hands of the petitioner; and by collecting the rent in this fashion he has tacitly treated the petitioner as his agent for receiving the rent. Therefore, in my opinion, the petitioner was an owner of the sheds within the meaning of a 380 read with this particular definition. Accordingly, in my opinion, the legal point raised fails. The application is, therefore, dismissed.

Mirza, J.

4. I agree

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