- (1.) THIS Rule is at the instance of the first-party petitioner, Shiba Sankarlal mehrotra, for setting aside an order dated the 27th May, 1968 passed by shri S. N. Basu, Municipal Magistrate, 2nd Court, Calcutta, in Case No. 1a|67, holding that the proceedings pending before the said Court under section 583 of the Calcutta Municipal Act, 1951, is not maintainable in law and, in that view, cancelling the show cause notices issued and discharging the second party-opposite parties.
(2.) THE facts leading on to the Rule can be put in a short compass. An application under section 583 of the Calcutta municipal Act, 1951 was filed by the first-party before the learned Senior municipal Magistrate, Calcutta, on the 15th March, 1987, praying for an enquiry into the nuisance complained of and thereafter to direct the persons responsible for the offence to take such measures as the court deems fit and proper for abating, preventing, removing or remedying such nuisance as also to direct the Commissioner of the Corporation of Calcutta to impose the relevant provisions of the Calcutta municipal Act, 1951 or of the rules or bye-laws made thereunder for the said purpose. Seven persons were made opposite-parties, viz. , the Commissioner, the Chief Valuer and Surveyor, the district Engineer-I, the District Health officer I the Estate of Munnilal Khattry represented by Mahesh Prosad Khattry, kashi Prosad Khattry, trust Estate represented by Sm. Ansuiya Bibi and Kalachand Basak. It was stated there inter alia that the applicant is a resident of premises No. 44, Balaram dey Street, Calcutta and the husband of Sm. Krishna Debi Mehrotra, one of the joint owners of the said premises. The Estate of Munnilal Khattry and kashi Prosad Khattry is the owners of the premises Nos. 76, Girish Park, north and 42, Balaram Dey Street, respectively. Premises No. 76, Girish park, North, Calcutta is towards the south of 44, Balaram Dey Street while the premises No. 42, Balaram dey Street is towards the west of both the premises referred to above. There is a common alley, called the: bed of nuisance, wherein the three premises empty their sewerage and or polluted water and the. same is in its turn connected with the drain maintained under the supervision of the district Engineer I of the Corporation 141 of Calcutta. Above the junction of the bed of nuisance and the public drain an unauthorised structure was built serving the purpose of a shop and the master trap being below the ground level of the structure, the Corporation was finding it difficult to cleanse the drains which were getting choked up. The joint owners wrote to the Commissioner for exercising his powers under the Act for removing the unauthorised structure viz. , the shop so that the bed of nuisance may be cleansed and public health be not endangered. Proceedings were instituted by the Commissioner of the Corporation of Calcutta under section 354 of the Act for removal of the unauthorised encroachment. But this was objected to by kashi Prosad Khattry, the trustee, claiming the encroachment to be a property of 42, Balaram Dey Street. The objection was referred to the Chief law Officer and since then no action has been taken under section 354 of the said Act. The Corporation having failed to carry out his duties, an application under section 583 of the Calcutta municipal Act, 1951 was filed to direct the Commissioner to abate or remove the nuisance endangering the public health. Proceedings thereupon were drawn up under section 583 of the Calcutta Municipal Act, 1951 and the case was transferred to the file of the learned Municipal Magistrate, second Court, Calcutta. The parties thereafter appeared and an inspection was held and notice was issued for showing cause upon the opposite-parties. The opposite-party No. 5, the estate of Munnilal Khattry represented by Sri Mahesh Prosad Khattry did not appear. But the opposite-parties Nos. 6 and 7 Kashi Prosad Khattry, Trust estate, represented by Sm. Ansuiya bibi and Tarachand Basak filed a joint petition of objection admitting the existence of the bed of the nuisance but contesting the removal on the ground that the applicat on is not maintainable as the said structure is more than 30 years old and the passage through which the disputed drain, passes belongs to the opposite party-No. 6, kashi Prosad Khattry Trust estate. The learned Municipal Magistrate on hearing the parties directed the opposite-party No. 3, the District engineer I, to inspect the site and suggest measures for removal of the alleged nuisance and also to give the estimated cost for the same. In compliance therewith the said oppositeparty no. 3 submitted a report recommending that the shop over the master-trap should be removed and the pit of the master-trap should be repaired and raised up to the ground level, costing approximately Rs. 500/ -. The parties were heard again by the learned Municipal Magistrate, who by his order dated the 27th May, 1968, ultimately held that the present proceedings were not maintainable before him and in that view he cancelled the show cause notices and discharged the opposite-parties. This order has been impugned and forms the subjectmatter of the present Rule.
(3.) MR. Ranjit Kumar Banerjee, advocate (with Mr. G. S. Khettry, advocate) appearing in support of the rule on behalf of the petitioner, ably argued the case and made a four-fold submission. The first contention of mr. Banerjee is that section 583 of the calcutta Municipal Act, 1951 applies to a nuisance irrespective of whether it is public or private, if it comes within the ambit of the definition given in section 5 (50) of the Calcutta Municipal Act, affecting even a section of the public and as such the learned Municipal magistrate has erred in holding that the nuisance complained of in the present case cannot be remediable under section 583 on the ground that it is a private one. The dominant test according to Mr. Banerjee is whether the nuisance complained of satisfies the definition of nuisance as incorporated in section 5 (50) of the Calcutta municipal Act, 1951 and if it so does, it. constitutes a statutory nuisance attracting the provisions of section 583 of the West Bengal Act XXXIII of 1951 or of the rules or of the bye laws made under the said Act for abating, preventing, removing, remedying such nuisance as enjoined under the said act. In support of his contention Mr. Banerjee referred to some authorities as well as several decisions which will be considered in their proper context. Mr. Banerjee next contended that the learned Municipal Magistrate misunderstood and misinterpreted the report of the District Engineer I of the corporation of Calcutta dated the 15th february, 1968 stating that "due to the existence of the shop on the Mastertrap the chokage of the house drainage cannot be readily and easily removed which, creates insanitary condition" and that in view of the topography of the locality, the said report clearly establishes that the nuisance complained of is not a mere private nuisance affecting the first party only but is one that affects the health of the locality or of a section of the public. The third contention of Mr. Banerjee is that the learned Municipal Magistrate has erred in holding that no relief could be granted to the first party on the footing that it involves the removal of an unauthorised construction which is beyond the purview, of the learned Municipal Magistrate's jurisdiction inasmuch as the point involved is not so much of the removal of an unauthorised construction but of a nuisance affecting the health of the locality. The fourth and last submission of Mr. Banerjee relates to abatement and is to the effect that the order impugned has been vitiated by a nonconsideration of measures for the abatement of the nuisance complained of, without necessitating the removal of any unauthorised structure, before passing the final order of discharge and as such there should be a remand for a proper disposal on merits, on a consideration of the measures possible for abatement of the nuisance complained of. Mrs. Archana Sengupta, advocate, appearing on behalf of the opposite-parties Nos. 1 to 4, viz. , the Commissioner, the Chief Valuer and Surveyor, the District Engineer I, and the District Health Officer I of the calcutta Corporation, supported the rule. She contended in the first instance that the order of discharge is premature and in the interests of justice there should be a remand for a proper disposal. Mrs. Sengupta's second contention is that the learned municipal Magistrate not only misinterpreted the report dated the 15th february, 1968 submitted by the District engineer I, Corporation of Calcutta but also erred in relying on the same inasmuch as it was not legally proved and the failure on the part of the learned Municipal Magistrate to consider the same has resulted in a non-conformance to the procedure established by law and a consequent failure of justice. Mrs. Sengupta next submitted that the report, in any event, clearly stated that the structure is unauthorised and the same cannot stand in the way of the removal of a nuisance affecting the health of the locality. Mr. J. P. Srivastava, Advocate, appearing on behalf of the opposite party No. 6, kalachand Basak, opposed the Rule. He contended in the first instance that section 583 of the Calcutta- Municipal act, 1951 does not relate to a case of a private nuisance which is amenable to civil law, and as such the learned Municipal magistrate, had rightly cancelled the show cause notice and discharged the opposite-parties. Mr. Srivastava contended in the second place that in view of the nuisance being private one, the finding arrived at by the learned Magistrate that there cannot be any removal of the said nuisance because it involves the removal of an unauthorised construction is redundant. The third contention of Mr. Srivastava is that the report of the district Engineer dated the 15th February, 1968, is not inadmissible in evidence and as such the findings arrived at by the learned Municipal Magistrate on the basis thereof do not stand vitiated. The fourth and last submission of mr. Srivastava is that as the proceedings over a private nuisance are not maintainable under section 583 of the calcutta Municipal Act, 1951, there is no question of any consideration of measures of abatement by the learned municipal Magistrate.;