Authored By : R.F. Lodge, Blagden

R.F. Lodge, J.

1. This was a rule on the District Magistrate of Howrah toshow cause why an order passed under Section 535, Calcutta Municipal Act, bythe Police Magistrate of Howrah should not be set aside. The material facts arethat a complaint was made by P. Banerji, Sanitary Inspector of HowrahMunicipality, against the present petitioner and three others praying foraction under Section 535, Calcutta Municipal Act. After a number ofadjournments the case was taken up for hearing on 19th March 1942. P. Banerjiwas examined as a witness and an order was passed directing the Commissionersof the Howrah Municipality to take measures and close down the khatal(cattle-shed) and thereby remedy the nuisance. The petitioner has asked us toset aside this order. Section 535, Calcutta Municipal Act, provides that theCorporation or any person who resides or owns property in Calcutta may complainto a Magistrate of the existence of any nuisance. Section 535(2) specifies theaction which the Magistrate is entitled to take upon receipt of any suchcomplaint. There is nothing in the petition of complaint or in the evidence ofthe one witness examined or in any of the papers on the record to show that theSanitary-Inspector P. Banerji was authorised by the chairman of themunicipality to make a complaint or that he was complaining on behalf of themunicipality. So far as the record goes P. Banerji filed the complaint in hispersonal capacity and not on behalf of the municipality. There is nothing onthe record to show that P. Banerji is a person who resides or owns property inHowrah and in the counter-affidavit sworn in this Court it has been franklyadmitted that he is not a resident of Howrah nor owns any property in thattown. In the circumstances it is clear that the complaint was not one uponwhich the Magistrate was entitled to act under Section 535(2), CalcuttaMunicipal Act. It is obvious therefore that the order of the Magistrate waswithout jurisdiction and must be set aside. The rule is accordingly madeabsolute. The order of the Magistrate directing the Municipal Commissioners totake measures and close down the khatal is set aside. The Commissioners of theHowrah Municipality are at liberty to present a proper complaint to theMagistrate, if so advised.

Blagden, J.

2. The present opposite party failed before the learned Magistrateto show that he was in any way entitled by Section 535, Calcutta Municipal Act,to make the complaint out of which this application arises, and he supportedthat part of his case which he did attempt to prove by evidence which in part,at all events, was inadmissible by Section 60, Evidence Act. For this state ofaffairs the learned Magistrate cannot justly be blamed because on the otherside the present petitioner was absenting himself and it is not now seriouslycontended that he was doing this except for the reason that he thought it tohis best interest to do so. In this highly unsatisfactory state of affairs theonly possible order to be made is the order which my learned brother has madeand I entirely agree with his order.

.

Keshabdeo Kedia vs.P. Banerjee (09.06.1942 - CALHC)