- (1.) CRIMINAL Revision Nos. 1051 of 1964 and 1342 of 1964 have been referred to this Bench by D. N. Das Gupta, J. for decision on the following points, (1) whether the act complained of really amounted to a nuisance within, the meaning of section 583, read with section 5 (50) of the Calcutta Municipal Act; (2) whether the learned Magistrate could pass an order directing the Commissioner under section 583 of the Calcutta Municipal Act in a matter in which the Commissioner was not a party and without hearing him. The facts in the two cases are as follows:-In Rule No. 1051 the applicant is the Commissioner of the Corporation of Calcutta. On 7th May, 1964 opposite party no. 1 Profulla Kumar Sarkar filed an application before the Municipal Magistrate under section 583 of the Calcutta Municipal Act against opposite party no. 2 Sm. Molina Prova Lahiri, landlady of the petitioner and several others including the Executive Engineer, Water Works, Corporation of Calcutta. Profulla Kumar Sarkar was a tenant under opposite party no. 2 in respect of top floor of premises no. 19b Tarak Dutta Road, Calcutta at a monthly rent of Rs. 50/- and opposite party no. 3 looked after the property on behalf of the landlady. Profulla Kumar alleged that the landlady in collusion with opposite party no. 3 and the Executive Engineer, Water Works, Calcutta Corporation discontinued the supply of filtered water to his flat and thereafter removed a motor driven pump from the premises in question on the 7th of November, 1963. Discontinuance of water supply amounted to a nuisance within the meaning of section 5, subsection 50 of the Calcutta Municipal Act and Profulla therefore prayed for an order under section 583 of the Act directing restoration of adequate supply of filtered water to the complainant's flat through motor pump. The learned Magistrate directed the opposite parties, in view of the urgency of the matter, to restore supply of filched water to the flat of the petitioner at the top floor of the premises by electric pump immediately.
(2.) THEREAFTER, the learned Magistrate took a report from the Corporation Inspector and ultimately found that this discontinuance of water supply was a nuisance within the meaning of section 5 (50) of the Act and also within the meaning of section 583 of the Act. He then made an order dated 7th May, 1964 directing restoration of water supply by an electric motor pump immediately and made the rule absolute against opposite parties 2 and 3. Opposite parties nos. 2 and 3 came up in revision against the order of the learned Municipal Magistrate and Amaresh Roy, J. , in disposing of the Rule observed as follows: "there is no doubt that the question raised on either side is an important question and may also be thought to be of wide application. But having regard to the particular subject-matter of this case and the manner in which the landlord has avoided restoring such an essential necessity of life, as water, to a tenant of third floor, I do not feel inclined to enter into the legal niceties for deciding that point of law and because the petitioner Malina Prava Lahiri has on the face of the record been disobeying the order of the third Municipal Magistrate passed on 7th of May, 1964 for depriving the tenant Prafulla Kumar Sarkar and other members of his family living in the apartment on the third floor of the premises no. 19 B, Tarak Dutta Road, I decline to interfere with the order of the learned Presidency Magistrate directing Malina Prava Lahiri to restore the supply of water to the third floor apartment of Prafulla Kumar Sarkar by means of an electric pump. "
(3.) THEREAFTER the learned Judge gave the following directions inter alia:- "if the order of the learned Municipal Magistrate is not obeyed by Sm. Malina Prava Lahiri within 15th of July, 1964 next the learned Municipal Magistrate shall give proper directions to the Commissioner, Calcutta Corporation for giving effect to the order of the Magistrate and to take all measures to restore the supply of water on the third floor of the premises No. 19/b, Tarak Dutta Road. " The matter then went back to the learned Magistrate who on the 17th July, 1964 passed the following order: "1st Party Prafulla Kumar Sarkar appears and states that the O. P. has not yet restored supply of water to the flat in the third floor by an electric pump. As O. P. Malina Prava Lahiri has failed to comply with my orders dated 7. 5. 64 and 26. 5. 64 under section 583 C. M. Act, I hereby direct under section 583 (3) C. M. Act that the Commissioner of Calcutta Corporation shall take all necessary measures to restore supply of filtered water by electric pump on the third floor of premises No. 19/b, Tarak Dutta Road by the 15th August, 1964 at the latest. ";