The Oudh cases. Containing cases decided by the Court of the judicial commissioner of Oudh .. online

Presumption as to issue of notice by duly constituted authority^^
Criminal revision — Criminal Procedure Code^ s. 439.



The Cantonment Magistrate issweil a notice under s^ 83 of the Cantonment
C!odc to the applicant to the effect that a house belouging to the latter had been
declared both ruinous aad insanitary by expert opinion and that he was thereby
directed to carry out the repairs indicated in an attached report which reoomo
mended general repairs. The applicant having failed to comply with the
notice was prosecuted and convicted.

Held, that for the purposes of a prosecution under s. 85 read with s. 83 of
the Cantonment Code, 1899. it is not necessary for the prosecution to begin by
proving that the authority] whidh issued the notice watt duly coRstitnted, and
the Court ought to presume, until some evidence is given to destroy the pre*
sumption, that the Cantonment authority used the regular and lawful proce-
dare, and that the common course of business was followed in its procedure,
and it is for the person raising the objection to give some etideace to show that
it would not be safe to make such a presumption.

Held, that the phrase * insanitary states * in s. 83 docs not mean an insanit*
kry state generally, but an insanitary state as qualified by the preceding words,
that is, an insanitary state resulting from the ill-construction or dilapidation of
the building. The word * defects* in that section means *8anitary defects' and
tlie repairs which the notice may require the owner to execute must thereforo
be such repairs ns are necessary to remove the sanitary defects resulting from



* Application for revision a^nst the order of C. L. M. Bales Esq., Sessions
Judge, Lucknow, dated 24th December 1903, modifying order of Major
A^ Newnham, Cantonment Hagibtrate, Lucknow, dated 2nd December 1903.



Feb. L



Digitized by VjOOQIC



52 THE OTlDH CASES. [Vol. VII.

O. T. Jackson the ill construction or dilapidation of the building. Held therefore, that the
-^?'' repairs which the applicant was required to carry out were repairs of such a

Emperor. ^a;ture as to put the house into habitable order generally^ and not merely repairs
to remove sanitiury defects of the natiire contemplated in s. 83; that the Call ton «
ment authority was not authorised by the proTisions of s, 83 to issue a notice
for general repairs; that it did not exercise a legal discretion in directing under
that section such repairs to be carried out, and that the notice was bad and
invalid in law.



The Applicant — In person.

Fob Opposite Party — The Government Pleader.

Maclbod, a. J. C. — This is an application by Mr. G. T.
Jackson for the revision o£ an appellate judgment of the
Sessions Judge of Lucknow upholding his conviction by the
Cantonment Magistrate of Lucknow under section 85 of the
Cantonment Code, 1899. The Cantonment Magistrate inflicted
the maximum penalty, namely, a fine of Es. 50, and an addi-
tional fine of Rs. 5 a day in case of continuing failure to comply
with the notice. The Sessions Judge, on the ground that it
was probably a test case, thought that it was unnecessary to
inflict the maximum penalty, and reduced the fine to Rs. 25,
and the additional fine to Re. 1 a day.

Section 85 is the section which provides the penalty for
failure to comply with a notice issued under the provisions of
section 83 of the Cantonment Code.

Sub-section (1) of section 83 runs as follows : —

" 83 (1) Where any building is so ill-constructed or
Power to require that " dilapidated as to be, in the opinion o£
^^^^^^J^^l^oZ " ^^^ Cantonment authority, in an insanit-
sanitary defects. « ^ry state, the Cantonment authority

** may, by notice in writing, require the owner, within a time
" to be specified in the notice, to execute such repairs, or to
" make such alterations, as it may think necessary in order to
'* remove such defects."



Digitized by VjOOQIC



Vol. VII.] THE OUDH CASES.

The notice was as follows: —
" Notice No.
"To



53



609
XVII. I.



Q. T. Jackso
r.
King-
Emperor



** G. T. Jackson, Esq.,

"Owner of No. 64,

" Lucknow.

" The Cantonment authority having decided to take action
" nnder sections 83 and 94 with regard to house No. 64, as it
" has been declared both ruinous and insanitary by expert
"opinion; yon are hereby directed to carry o«t tke repairs
" indicated in attached report by the Commanding Royal
" Engineer within a period of three months of receipt of notice.
" Failing compliance you will be dealt with according to law.^



Locknow :

C. M.'s. Office,

28-5-1903.



!



(Sd.) A. Newnham, Major,

Cantonment Magbtrate.



The "attached report,"^ referred to in the notice,, was as
follows: —

"Extract fro» report dated 29lh Aprils 1903, from
" lieittenaBt 0. E. Ingham, R. E., Garrison Engineer, Lucknow,
" to the Commanding Royal Engineer of Lucknow.



" Subject — Repairs required to bungalows, 64 and 108.



" I have the honour to report that I have inspected the
' above bungalows and find that the following repairs are
'necessary: —



I agree. The verandahs
are utterly ruined. A good
many main roof timbers are
good. Out houses all ruined*



" 64. The whole build-
" ing requires replastering and
" cleaning inside and out. AH
"the tiled portions require
" reroofing altogether. Some



Digitized by VjOOQIC



54 THE OUDH CASES. [Vol. Vil.

G. T. Jackson (gJ.) J. Day, Lieuten- " root timbers in large rooms

King- anl-f!olonel, (<. R. E. " require renewal, floors require

Emperoc. . -^t i « * i

" repair. Nearly all the doors

" and windows want renewing.

" A cast iron tain water-pipe

" is required on N. side of

'^ building instead o£ present

" makeshift. All servants' quar-

" ters and stables require re-

1 CDJieur. " building.

(Sd.) J. DAT, 108. " In Tery fair order,

lieutenant-Colonel, C. R. E. " n^quires some new doors and

" windows, requires cleaning
^'and general overhaul and
'• minor repairs. Some seiv
^' vants' quarters and stablea
** require re-roofing.

Section 94 of the Cantonment Code, referred to in the
notice, runs as foltows : —

" 94. Where any building, wall or structure, or anything
** affixed thereto, or any bank or tree, is, in the opinion of the
" Cantonment authority, in a ruinous state or in any way
** dangerous, the Cantonment authority may, by notice ia
" writing, require the owner or occupier thereof forthwith
" either to remove the same or to cause such repairs to be made
"as it may think necessary for the public safety, and, if there
"^is, iu the opinion of the Cantonment authority, imminent
*' diinger, it shall forthwith take such steps to avert the danger
" as it may think necessary.'^

It authorises the Cantonment authority to require the
owner to make such repairs as it may think necessary for the
*'public safety," The penalty for failure to comply isi
provided for in section 104. There has been no conviction
under section 104, and it has not been suggested by the prose-
cution that there is any question of the " public safety'' being
concerned in this case*



Digitized by VjOOQIC



Vol. VII.J



THE OUpH CASES.



55



Mr. Jackson contests the legality of the notice on three ^- T. Jackson

KiDg-



gronnds : — First, that the opinion of the Cantonment authority
was not arrived at, at a meeting at which the proper number of
members of the Cantonment Committee necessary to constitute
a quorum under section 9 of the Code were present ; secondly,
that the house in respect of which the notice was issued was
not in an ^^ insanitary state" within the meaning of section 83 ;
and, thirdly, that the repairs which he is required to carry out
are not such repairs as are contemplated by section 83.

As regards the first point that there was not a duly con-
stituted quorum, Mr. Jackson relies on certain documents on
the record which show that a suggestion of the Commanding
Royal Engineer for proceedings to be taken was circulated to
the members of the Cantonment Committee but that the signa-
tures of only the president and two members were taken on it
in token of their concurrence. Mr. Jackson admits that this
point was not raised in either of the lower Courts. The mere
fact that the papers were circulated is no proof that a properly
constituted meeting of the Cantonment Committee did not sub-
sequently take place previous to the issue of the notice. The
real question appears to be whether for the purposes of a prose-
cution under section 85 read with section 83 it was necessary
for the prosecution to begin by proving that the authority
which issued the notice was duly constituted. In my opinion
there was no such necessity, and the Court ought to presume,
until some evidence is given to destroy the presumption, that
the Cantonment Committee used the regular and lawful pro-
cedure, and that the common course of business was followed
in that procedure, and it is for the person^raising the objection
to give some evidence to show that it would not be safe to
make such a presumption, Qw^m Empress v. Ram Chander^ (1)
and The Municipality of ^holapur v. Tlie Sholapur Spinning
and Weaving Company Limited. (2) It is too late for Mr.
Jackson to raise this question for the first time in revision,
■ — '— — ■ — III »»i

(1) I. L. R. 19 All. 493.
(S?) I. L. H. 20 Rom. 732



Emperor.



Digitized by VjOOQIC



G. T. Jackson

King-
Emperor.



56



THE OUDH CASES.



[Vol. VII.



There are no materials on the record on which it can be
decided, and fresh evidence cannot be received at this stage.
The presamption is that the Cantonment authority which issiied
the notice was dnlj constitoted) and this presamption has
not been rebutted.



As regards the second pdbott, namely, whether the house
was in an ^^ insanitary state'' within the meaning of section 8^,
the facts found by the lower Courts as to the oonditkm of the
house at the time of the issue of the notice must be accepted as
established. They would suggest that the house was in a state
somewhat resembling that of the ^^ Moated Grange'' in Tenny-
son's " Mariana," being if anything rather worse. But the
question is how far that constituted an ^4nsanitary state" within
the meaning of section 83. Section 83 is in Chapter VI of the
Cantonment Code. That Chapter deals with " Nuisances and
Sanitation." Section 83 is in the group of sections headed " Sani-
tation." The first question is what the word " insanitary"
means. It is not defined in the Code itself, or in the Canton-
ments Act, 1889, and does not appear to have been judicially
interpreted. It must, therefore, be construed in its popular,
natural and ordinary sense. The popular, natural and ordinary
meaning of the word " sanitary" is " pertaining to, tending or
designed to promote health." It may, therefore, be taken that
"insanitary" means "injurious to health." The next question
is, what does "insanitary state" mean in section 83. It is quite
clear that it does not mean an insanitary state generally, but an
insanitary state as qualified by the prcceeding words, that is, an
insanitary state resulting from the ill-construction or dilapidat-
ion of the building.

The Cantonment Magistrate, in dealing with the evidence as
to the house being in an insanitary state, says : —

" Captain McLennan, who inspected and reported on the
" place originally, did not pronounce it insanitary, but dilapi-
" dated only. In cross-examination he admits he did not then con-



Digitized by VjOOQIC



Vol. VIL] THE OUUH CASES. 57

*^ Bider it inganitary, but has had reason to change his opinion Q. T. Jackson
*^ since; how much this was in consequence of his senior officer Eing-

" having stated the hoase to be insanitary, is open to question. napero'.
" At all events, he now states he considers the house insanitary,
" because it Is leaky and draughty, and anyone living in it would
"probably contract rheumatism, malaria, and other tropical
" diseases.

" Colonel Moffit, while emphatically condemning the house
" as insanitary, admits he did not go inside. His reasons for
" so thinking are — (i) because the out-houses being without
" doors or roofs will cause vegetation to collect and decompose
" insicle, also that natives use the place as a latrine ; in fact, have
" done so, as he himself saw in two of the houses ; (ii) because
" unoccupied buildings are more difficult to keep clean ; (iii)
" because if many houses and compounds were in the same con-
" dition the station would become very insanitary. On cross-
" examination he admits he found no rotting vegetation in the
"compound.-

" The above sums up the bant6nment m^ical opinion as to
" insanitary condition of the housei and it must be admitted it
" is not a very strong indictment.'*

Much of the evidence taken on tMs point appears to be
irrelevant, and seems to have been directed to showing
that the place was in an insanitary fetate generally just
before the case came on in'Court. The evidence, for instance,
as to the filthy condition of the out-houses owing to natives
having used them for improper purposes, has n<y bearing
on the question as to whether the notice under section 83
was a proper one or not. Section 83 does not apply to matters
of that kind ; they would come under section 84 which deals
with buildings or land in a filthy or unwholesome statil. Fur-
ther, if any evidence was necessary it was required with
reference to the state of things existing previous to the issue of
the notice.



Digitized by VjOOQIC



58



THE OUDH GASES.



[Vol. Vir.



a. T. Jackson

V,

King-
Emperor.



The whole of this part of the case, however, appears to be
material only in so far as it has any bearing on the third point.
It tends to show that the prosecution are under the impression
that the ^' insanitary state " referred to in section 83 means an
insanitary state generally which is not correct.

The third point, namely, whether the repairs which Mr.
Jackson is required to carry out are such repairs as are con-
templated by section 83 is the really material question in
this case.

The drafting of sub-section (1) of section 83 appears to be
open to criticism. The last two words are " such defects "
whereas the word " defect " does not previously occur in that
sub-section. On a proper construction of the sub-section,
** defects," in my opinion, must mean "sanitary defects," and this
view is supported by the marginal note. The section does, not
apply to any ill-constructed or dilapidated building, but only
to buildings so ill-constructed or dilapidated that the ill-cons-
truclion or dilapidation directly results in their being in an
insanitary state. The repairs which the notice may require
the owner to execute must therefore be such repairs as are
necessary to remove the sanitary defects resulting from the
ill-construction or dilapidation of the building.

The Cantonment Magistrate says, " The Cantonment Code
*' is drawn up to suit the requirements of a military population
*^ in a circumscribed area. A military officer is liable to be
^^ transferred at any time and at short notice to another
V Cantonment. He is obliged to live in the Cantonment, and in
^^ some cases in a particular part of the Cantonment. He must,
*' therefore, find a habitable house to occupy immediately on
*' arrival. I do not think, therefore, I am straining section 83,
" when I presume it was framed to permit of providing proper
" accommodation for officers at all times," and the Government
Pleader pressed this view in this Court. I am unable to accept
this contention. I cannot find anything in section 83 to suggest
that the framers of the Code intended by the provisions of that



Digitized by VjOOQIC



Vol. VII.] THE OUDH CASES. »

section to provide for a supply of houses in a habitable state of ' ^ ^

rei^air ready for officers to occupy immediately on arriyal. I ^^^"'
am unable to agree that it would not be straining the provisions
of section 83 to hold that they are directly applicable to that
object.

The Sessions Judge is apparently of opinion that the whole
mutter is concluded by the discretion allowed to the Cantonment
authority by the words of section 83 itself. The law on this
point id clearly laid down in the following passage from Maxwell '
on the Interpretation of Statutes (3rd edition, page3 172 and
173). '^ Where, as in a multitude of Acts, something is left to
**' be done according to the discretion of the authority on whom
** the power of doing it is conferred, the discretion must be
** exercised honestly and in the spirit of the Statute. * According
'*^ to his discretion' means, it has been daid, according to the rules
^' of reason and Justice not private opinion; according- to law and
*' not humour; it is to be, not arbitrary, vague and fanciful, but
^Megal and regular; to be exercised not capriciously but on
*'*' judicial grounds and for substantial reasons. And it must be
^' exercised within the limits to which an honest man competent
^^ to the discharge of his office ought to confine himself ; that is,

" within the limits and for the objects intended by the Legislature.
'* These dicta may be summed up in the statement of Lord Bsher,
** that the discretion must bd exercised without taking into
^* account any reason which is not a legal one. If peoplo who
*' have to exercise a public duty by exercising- the discretion
*' take into account matters which the Courts consider not to be
^' proper for the guidance oE their discretion, then in the eye of
^' the law they have not exercised their discretion."

It is necessary to consider now what repairs exactly Mr.
Jackson was required to make by the notice. It is apparent on
the face of the notice and the attached "report" that the repairs
specified were such as were required to put the house into pro*
per order from an engineer's point of view. The " report" is
pot confined to sanitary defects, nor is it stated whjat repairs op



Digitized by VjOOQIC



flmperor.



ej? THE OUDfl CASES. [Vol. ViL

G.T.Jackson alterations are required from a sanitary point of view. It is
Kiugf' impossible to ascertain from it which of the repairs recommend-
ed are really required on .account of sanitary defects. Further-
more, from the insertion of section 94 and the word " ruinous"
in the notice it would appear that some of the repairs were
considered necessary as coming under section 94 and not on
sanitary grounds under section 83.

The only conclusions that I can come to are that the repairs
which Mr. Jackson is required to carry out are repairs of such
a nature as to put the house into habitable order generally, and
not merely repairs to remove sanitary defects of the nature
contemplated in section 83 ; and that the Cantonment authority
was not authorised by the provisions of section 83 to issue a
notice for general repairs ; and that it has not exercised a legal
discretion in directing, under section 83, such repairs to be
carried out. The result is that in my opinion the notice is bad
and invalid in law*

I would only add in conclusion that I am not concerned
with any other powers which the Cantonment authority may
have to require that houses in Cantonments shall be kept in a
habitable state of repair.

As the notice is invalid the conviction under section 85 of
the Cantonment Code cannot be sustained. The conviction and
sentence are set aside, and the fine realized (if any^ will be
repaid to the applicant*



Digitized by VjOOQIC



Vol. VIL] THE OUDH CASES. 61

FIRST CIVIL APPEAL, No. 101 OF 1902.*



Before Mr. Macleod and Mr. Chamier.



Ram Dayal {Plaintiff) v. Bhajju Lal and others 1904.
(Defendants).



Pre-emption^ suit for — Sons not separately recorded as co^
sharers claiming pre-emption in respect of property sold by their
father.



R and four other co-sharers sold a certain property to ^, a stranger and
the appellant claimed pre-emption. He filed his suit on the 5th February 1902,
and on the 6th February the respondents, sons of B but not separately recorded
as co-sharers, also filed a suit claiming pre-emption in respect of the same
property. The respondents were accordingly added as defendants in the
appellant's suit and the appellant was added as a defendant in their suit,

Heldy that the respondents could not be treated as co-sharers and had nO
right of pre-emption as against the appellant. If the sale was a valid one then
any interest they had in the property before the sale was lost to them on the
sale taking place and they had no subsisting title at the date of the institution
of the suit ; while if they denied that their father had power to transfer their
interest, they were precluded from claiming pre-emption.



For Appellant. — Mr. St. George H. S, Jackson^ ani

B. Bhairon Prasad.

For Respondents 7 & 8. — Mr. J. S. Misra.

Macleod, A. J. C. — This was a suit for pre-emption.
RadheLaland four other co-sharers sold the property in dispute
to Bhajju Lal, a stranger, and Ram Dayal, the present appellant,

'Against the decree of Babu Grish Chandar Bose, Subordinate Judge,
Sitapur, dated 15th September 1902.



Digitized by VjOOQIC



62 THE OUDH CASES. [Vol. Yit.

Eam^Dayai claimed pre-emption. He filed his suit on the 5th Feb-
Jihajju Lai ruary 1902. On the 6th February 1902 Ram Bharose and
Mnl Narain, sons of Radhe Lai, but not separately recorded as
co-sharers, also filed a suit, daiminjf; pre-remption In respect of
the same property. Ram Bharose and Mul Narain were
accordingly added as defendants in Ram Dayal's suit and
Ram Dayal was added as a defendant in their suit. Ram
Bharose and Mul Narain, being the sons of one of the Vendors
are nearer relations than Ram Dayal, who is a first cousin of
one of the vendors and a first cousin once removed of the
other four vendors. The lower Court, relying on Gandfuirp
Singh v» Sahib Singh (1), Dr. Duthoit's ruling in Lachmin
Narain \. Raghunath (2) d&ted the 21st December 1885^ and
Hazari Singh v. Joot Singh (3) held that Ram Bharose and
Mul Narain must be treated fts co-sharers and that they had a
preferential right to Ram Dayal, and accordingly dismissed
Ram Dayal's suit and decreed that .of Ram Bharose and Mul
Narain.

. Ram Dayal appeals. No question is now raised as to the
oorrectness of the price with respect to which the lower Court
ba9 deoreed pre-emption. Mr. Jackson on behalf ot the
appellant contends that Ram Bharose and Mul Narain were
not co-sharers on the date on which they instituted their suit
nnd further that if they do not admit the validity of the sale
their claim for pre-emption is not maintainable.

In the case of Gandharp Singh r. Sahib Singh (1) relied
gn by the lower Court, the sale was to four persons; two o£them
were recorded cci-sharers and the other two were sons of a
recorded co-sharer. All that was decided in that case was
that the two sons could not be treated as strangers and pre-
emption oould not be claimed against them. The ruling in
that case has no bearing on the questions raised in the present
case.



(1) L L. R., 7 AlU 184, (2) Second Civil Appeal No. 652 o£ 1885.
(3) 1. 0, a 35?. .



Digitized by VjOOQIC



jumlktr to^oae in the^reveat cv^. Dr. Pathmt says in his -Bfa*i i';.^f^

4Â¥f4gpiaat> " tk^ tfie^m yfkkkiB a^^ly at iaptie between

**44yd pArtiet rhas^^^. decided , 1^ (^a^^ho^ Sinffk v* Sal^{b

*^Sf9^.(S>}^ ajF.uU B^pc^ dcpisi^n t9;which I was a par^y^ Xn

,^.Q(]^d<9]ri°X '^^^ relations ^ , the parties we mast consider

*^ ibeiH; a§ t^ey st^od at^tbe moment bteCore, not at the moment

^' i^ter, ^be sale was ceinjjet^> T|ie ap4)eal is decreed.'' In

mjr.QPioloQ. ^^y I)ath<rft must bjtve been tindjBr son^e mis-

.^upprehensipi^ (or, the. raUng retenred to by ^im d9e9 not

relied on bj th^hnwr. Cbwti .terttttd ha, ft 4<8enw<:> f^t

* Mr. Jmckuotk Teties ob the Allowing 0M6«j:-H(i) ^nv^i
pHLdiAd V. ' i«Aar i^ (4). It wae 'held iu ^this pase that dn
* i^rderio mahttaoAaHmll-for pre^^eoipdonv^he-plainliS
not only that the sale gave him a cause oE action, bat thftt 4io
cause of action still subsisted at tl^e date of institution of the
«ait. (ii) Ham Gopal y% jPtart Ldl {5). In this case t3re Court
went further and held (the question haying been left open in
the preceding ruling referred to) that the plaintiff must have
« subsisting title up to the date of the decree in his suit* (iii)
Abdul Wahid Khan v. Shaluka Bibi (6). In this case their Lord-
ships of the Privy Council held that the law of preemption
contained in the Oudh Laws Act, 1876, was not applicable
where the person who would be entitled to pre-emption denies