JUDGMENT 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. 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." 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. 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. " 3. THE Commissioner of the Corporation of Calcutta then applied to this Court against the order of the learned Magistrate directing him to take all necessary measures to restore supply of filtered water by electric pump on the third floor of the tenant's premises within a certain date. Mr. Basu, learned Advocate for the Commissioner, has pointed out that the Commissioner was not a party to the case and that the learned Magistrate passed an order putting an onerous burden upon him involving expenditure of Corporation funds, without hearing him and that the order is not only manifestly illegal and without jurisdiction but that an order passed in the absence of the party is unsustainable in law. He has also challenged that in the facts and circumstances of the case, there was no nuisance at all within the meaning of section 583 of the Calcutta Municipal Act read with section 5 (50) of the Act. The learned Magistrate in his explanation stated that he passed the order pursuant to direction issued by Amaresh Roy, J. who heard criminal Revision No. 715/64. The learned Judge who heard the Revision Application D. N. Das Gupta, J. sent the matter to this Division Bench. The learned Magistrate in his explanation stated that he passed the order pursuant to direction issued by Amaresh Roy, J. who heard criminal Revision No. 715/64. The learned Judge who heard the Revision Application D. N. Das Gupta, J. sent the matter to this Division Bench. In Rule No. 1342 of 1964 also the dispute is between landlord and the tenant over supply of water. The petitioner was a monthly tenant under opposite party no. 2 Hrishikesh Chatterjee in respect of ground flat of premises no. 602, block 'o' in New Alipore, Calcutta and the landlord lived on the first floor of the said premises. The petitioner alleged that there was one filtered water tap in the kitchen, two filtered water taps and two showers in the two bath rooms and one tap in the dining hall, besides two flushing cisterns of two Indian privies, and one European commode privy was also connected with filtered water supply, there being no unfiltered water connection in the ground floor flat occupied by him. The supply of filtered water in the taps and cisterns were being made by means of a force pump through an overhead reservoir but the landlord subsequently discontinued the supply of filtered water to the complainant's flat on the ground floor. The result was a nuisance and the complainant therefore prayed for an order under section 583 of the Calcutta Municipal Act. Corporation of Calcutta was a party in that application and the learned lawyer appearing for the Corporation pointed out that section 583 of the Calcutta Municipal Act had no application in a dispute between the landlord and tenant for which remedy was provided for in sections 34 and 35 of the West Bengal Premises Tenancy Act. The landlord stated that the petitioner got sufficient supply of filtered water on the ground floor directly from the Corporation main and that there is also supply of unfiltered water for flushing of: privies in the portion occupied by the tenant. The landlord also pointed out that the filtered water tap leading to the ground floor tank from which supplies were to be raised over-head was controlled by the petitioner who intentionally stopped accumulation in the tank as a result of which the pumping machine could not work-there being no accumulation of water in the tank. The landlord also pointed out that the filtered water tap leading to the ground floor tank from which supplies were to be raised over-head was controlled by the petitioner who intentionally stopped accumulation in the tank as a result of which the pumping machine could not work-there being no accumulation of water in the tank. The learned Magistrate inspected the premises and by his order dated 30th July, 1964 directed the landlord to restore the supply of filtered water to the flat from the overhead tank, by pump by a certain date. He further directed that on landlord's failure to supply within the date mentioned in the order, the Commissioner of the Corporation of Calcutta shall give effect to the order and all expenditure incurred in this connection shall be recovered from the landlord. 4. THE Commissioner of the Corporation of Calcutta filed an application in revision on grounds similar to those raised in Criminal Revision No 1051 of 1964. D. N. Das Gupta, J. who heard the application held that though in the instant case there was no previous order of the Court as in Criminal Revision No. 1051 of 1964, the fundamental questions involved in both the cases were the same and he therefore, referred this application also to this Bench. The first point that arises is whether the short supply or stoppage of water by landlord in respect of the fiat in occupation of the tenant is a nuisance within the meaning of section 5 (50) and section 583 of the Calcutta Municipal Act. Section 5 (50) reads as follows:- "Nuisance" includes any act, omission, place of thing which causes or is likely to cause injury, danger, annoyance or offence to the sense of sight, smell or hearing or disturbance to rest or sleep, or which is or may be dangerous to life or injurious to health or property." Mr. Basu appearing for the Commissioner, Corporation of Calcutta, has urged that the nuisance within the meaning of sub-section 52 really connotes nuisance which endangers the life of the community or a section of it and any dispute over supply between the landlord and tenant would not constitute a nuisance within the meaning of sub-section (50) of section 5. Basu appearing for the Commissioner, Corporation of Calcutta, has urged that the nuisance within the meaning of sub-section 52 really connotes nuisance which endangers the life of the community or a section of it and any dispute over supply between the landlord and tenant would not constitute a nuisance within the meaning of sub-section (50) of section 5. The definition of the word 'nuisance' in the Calcutta Municipal Act is very comprehensive and it includes any act or omission or thing which is, or may be dangerous to the life or injurious to health or property. The learned Advocate for the tenant has argued that the failure of supply or shortage of supply of water may result in in sanitary condition or epidemic or disease which may be dangerous to life or injurious to life or property and as such, it is a nuisance within the meaning of sub-section (50 ). In interpreting the word 'nuisance' we must however take into consideration the preamble of the Act which runs as follows: "Whereas it is expedient to amend and consolidate in the manner hereinafter appearing, the law relating to the municipal affairs of Calcutta. " 5. THE provisions of the Calcutta Municipal Act, in our view, must be interpreted keeping in view the preamble to the Act and private dispute over supply of water between man and man or landlord and tenant would make out a nuisance within the Act so as to invoke the application of the provision of section 583, Calcutta Municipal Act, putting an impossible burden on the Corporation, and Commissioner of the Corporation will step in only where the nuisance is dangerous to life or injurious to the health of the public or a section of the public. In such cases, looking at the duties of a municipal corporation, it will step in and will carry out the direction of the Magistrate under section 583, Calcutta Municipal Act. To hold otherwise is to carry the meaning of the word 'nuisance' to an absurd length which could not have been the intention of the Legislature. In such cases, looking at the duties of a municipal corporation, it will step in and will carry out the direction of the Magistrate under section 583, Calcutta Municipal Act. To hold otherwise is to carry the meaning of the word 'nuisance' to an absurd length which could not have been the intention of the Legislature. It was never intended that a petty dispute about repair of a tap or non-working of flush or a damage to a commode would drag in the Corporation or the Commissioner under section 583 and if that were the object, it would be impossible for the Corporation to carry on its day to day duties for general sanitation of the City. Then again, nuisance in my view, must be such, of which the proximate result would be danger to life or injury to health. If there is a non-supply or short supply of water to a tenant, the tenant may arrange for outside supply at his cost or otherwise, depending upon the agreement between the landlord and tenant, but this would be no nuisance within the meaning of sub-section (50) if the tenant observed the common hygienic rules. Then again, so far as these disputes between the landlord and the tenant are concerned there is a provision for speedy settlement or rectification of this dispute under sections 34 and 35 of the Premises Tenancy Act, and section 610 of the Calcutta Municipal Act provides that "except as in this Act otherwise expressly provided, nothing in this Act shall be deemed to affect the provisions of any other enactment" So the provisions of the Premises Tenancy Act for deciding a dispute between the landlord and tenant in respect of water supply or even for making speedy remedies is not affected by any provision in this Act and the tenant is free to apply under the West Bengal Premises Tenancy Act. The learned Advocate appearing for the landlord pointed out that in the case corresponding to Rule No. 1051, there was already an application before the Rent Controller but being a defaulter, the petitioners attempted to bypass the provisions of the Rent Control Act and seek remedy under the Calcutta Municipal Act. The learned Advocate appearing for the landlord pointed out that in the case corresponding to Rule No. 1051, there was already an application before the Rent Controller but being a defaulter, the petitioners attempted to bypass the provisions of the Rent Control Act and seek remedy under the Calcutta Municipal Act. We are not concerned with that aspect of the matter but we think that in a case like this, there is no nuisance within the meaning of sub-section (50) of section 5 of the Calcutta Municipal Act and the provisions of section 583 will not therefore be attracted. 6. THIS view finds support in a case reported in (1) 15 Calcutta Weekly Notes, at page 316 (Khagendra Nath Mitter v. Bhupendra Nath Dutta) where a Division Bench of this Court in interpreting the definition of nuisance in section 3, clause 29 of the Calcutta Municipal Act pointed out that the definition is wider than the common law definition of public nuisance, but does not certainly extend to certain private nuisances. It then proceeded to explain that a public nuisance is one that affects the King's subjects at large or a considerable portion of them such as the inhabitants of the town while a private nuisance on the other than is one that affects only one person or a certain determinate number of persons and is only amenable to civil law. The Bench further held that nuisance under the Calcutta Municipal Act is in the nature of a public nuisance but it may affect the lives and property of private individuals or defined bodies of persons in a specified area. The definition of the word 'nuisance' in the earlier Act is virtually the same as that in the present Act and reads as follows "nuisance includes any act, omission, place or thing which causes or is likely to cause injury, danger, annoyance or offence to the sense of sight, smell or hearing, for which is or may be dangerous to life or injurious to health or property". The learned Advocate has referred to a decision reported in (2) AI. R. Bombay 1925 at page 458 (Alimahomed Sale Mahomed v. Municipal Commissioner of Bombay) in support o5 his view that the nuisance within the meaning of the Municipal Act need not be a public nuisance. The learned Judges however approvingly referred to the observations in the case reported in. R. Bombay 1925 at page 458 (Alimahomed Sale Mahomed v. Municipal Commissioner of Bombay) in support o5 his view that the nuisance within the meaning of the Municipal Act need not be a public nuisance. The learned Judges however approvingly referred to the observations in the case reported in. (1) 15 C. W. N. 316 earlier referred to that the Court ought most strongly to deprecate that the use of the Municipal Act for the purpose of interfering in any way with the rights of private ownership beyond those limited powers which the Corporation had obtained by statute for the necessary protection of the public and the enforcement of proper sanitation. The learned Judges further held that if the user of the stables was in fact found to be a nuisance in respect of the houses other than the bungalow, it was open to the Court and it would have been right for the Court to find that the nuisance did not relate merely to the particular bungalow but to other houses also and that if they thought that the nuisance related to the whole locality it was a public nuisance but if it related to the bungalow in question it was a private nuisance. The learned advocate also referred to a case reported in (3) 14 C. W. N. at page 637 (Bhagawan Das v. Rash Behari Mallik) and there also it was held that if private nuisance affects two of three houses, the inhabitants of two or three houses might either join in a civil suit or they might file separate suits, or they might join in a complaint before the Magistrate and ask the Magistrate to decide specifically that the particular nuisance is a public nuisance affecting the residents of houses A, B and C. The two decisions, therefore, are not, in conflict with the decision reported in (1) 15 C. W. N., 316 or with the view taken that a nuisance within the meaning of section 5 (50) Calcutta Municipal Act is a nuisance which affects the public generally or a section of it. The view that we have taken therefore finds support in an earlier decision of this Court. In Rule No. 1342 the learned Magistrate stated as follows: "There are of course two taps attached to the kitchen and European commode room. The view that we have taken therefore finds support in an earlier decision of this Court. In Rule No. 1342 the learned Magistrate stated as follows: "There are of course two taps attached to the kitchen and European commode room. Supply of filtered water can be had from 6 A. M. to 10 A. M. and from 4-7 P. M. The water of these two taps can remove the disadvantages of cooking and of taking bath to a certain extent but non-supply of filtered water in the kitchen and bath room surely causes much annoyance to the petitioner and members of his family. Above all, discontinuance of supply of water in the latrines and commode is sure to result in injury to the health of the members of the family of the petitioner and to the petitioner as well. " The Magistrate's own finding therefore shows that there was water supply from the Corporation main to the kitchen and to the bath room having commode. The learned Magistrate himself found that there was supply in the kitchen and also in one bathroom at least, but he then goes to find that non-supply through the rest of the taps caused much annoyance to the petitioner and the members of the family. Such annoyance however cannot constitute a nuisance and dispute over further supply should be left as between the parties as per agreement of tenancy to be decided in an appropriate forum under the West Bengal Premises Tenancy Act. It is at best a case of short supply and it is dangerous to say that even in a case of short supply, the learned Magistrate should direct the Corporation or the Commissioner to step in and carry out work at the cost of the corporation funds with a tardy and doubtful realization from the landlord. From the facts therefore we cannot say that there was a nuisance within the meaning of section 5 (50) of the Calcutta Municipal Act even if an extended meaning is given of the word 'nuisance'. In Rule No. 1051 it appears that the tenant applied to the Kent Controller for restoration of supply of water and a compromise petition was filed by both before the Rent Controller agreeing that the supply of water through the electric pump will be restored by the landlord within 15 days from 20. 4. 1964. In Rule No. 1051 it appears that the tenant applied to the Kent Controller for restoration of supply of water and a compromise petition was filed by both before the Rent Controller agreeing that the supply of water through the electric pump will be restored by the landlord within 15 days from 20. 4. 1964. The landlord then applied to the rent Controller for extension of time as the electric pump was under repair by a mechanic and the petition was still pending before the Rent Controller. It is not understood how during the pendency of this matter with the Rent Controller, the Magistrate assumed jurisdiction and passed the order directing the Commissioner to put up an electric pump out of funds of the Corporation. It besides appears that there was sufficient supply of water on the ground floor of the premises and all that it meant is a little cost in lifting water, which matter can and should be settled between the landlord and tenant either amicably or through court. Failure of mechanical device for lifting water is not an unusual thing and a temporary stoppage of water supply due to such failure does not also amount to a nuisance and in our view, if a nuisance is created by the tenant refusing to lift water of which abundant supplies are available on the ground floor, it is he who should be charged for committing nuisance and not the landlord. On facts therefore, in this case also there was no nuisance as contemplated under section 5 (50) of the Act, even if an extended meaning of the word 'nuisance' is given. The next question that arises is whether such an order can be passed putting an onerous burden on the Commissioner without either imp leading him as a party or hearing him and whether such an order can be supported Admittedly the Commissioner was not a party in either case though the Corporation was made a party in the case corresponding to Rule No. 1342 and Executive Engineering Water Works, Corporation of Calcutta in the case corresponding to Rule 1051. Sub-section (2) of section 583 empowers the Magistrate after making such enquiry as he thinks necessary to direct the person responsible for the nuisance to take such measures as to such Magistrate may seem practicable and reasonable and within such period as may be specified in the order for removing or remedying the nuisance and to direct the Corporation to put in force any of the provisions of this Act. Sub-section (3) provides, that if the person does not comply with the order within the time specified in the order, the Commissioner may on expiry of the said period proceed to take action as directed in the order or may take such other measures to remove or remedy the nuisance. . . . . . . . and all expenses incurred in that connection shall be recoverable from the person against whom the order has been made by the Magistrate. Subsection (3) gives power co the Commissioner to take action on failure of the party to comply or even to take such other measures for the purpose of remedying the nuisance as he might consider necessary. Sub-section (3) is merely an enabling section giving right to the Commissioner to do as directed by the Magistrate or even to take some other steps for the purpose and the Magistrate cannot therefore pass any firm order directing the Commission under sub-section (3) for doing a certain thing in a certain way. Apart from this, the word used in sub-section (3) is the Corporation while the right under sub-section (3) is given to the Commissioner. Under the present Calcutta Municipal Act, the Commissioner has a separate entity outside the Corporation and section 6 provides that the Municipal authorities charged with carrying out the provisions of the Act are- (a) the Corporation, (b) the standing Committees, and (c) the Commissioner. 7. THE powers, duties and functions of the three authorities are clearly defined in the Act and the power and function of the Commissioner are defined from Section 28 onwards. That being the position, no order can be passed on the Commissioner under subsection (3) of section 583, calcutta Municipal Act without imp leading the Commissioner himself as a party and the orders passed in the present cases without imp leading the Commissioner as a party and without hearing him are not binding or operative against the Commissioner. That being the position, no order can be passed on the Commissioner under subsection (3) of section 583, calcutta Municipal Act without imp leading the Commissioner himself as a party and the orders passed in the present cases without imp leading the Commissioner as a party and without hearing him are not binding or operative against the Commissioner. In the case reported in (4) 69 C. W. N. at page 278 P. N Mookerjee, J. has pointed out that the Commissioner, Corporation of Calcutta has power directly conferred upon him by statute which are not given to the Corporation but are given exclusively and solely by the statute to the Commissioner and so far as such powers are missioner and so far as such powers are concerned, the Commissioner is its sole repository and authority and any challenge to the same cannot be made in his absence. The learned Judge further pointed out that in such cases the Commissioner exercises statutory function imposed upon him by the statute and in regard to these he is the sole authority. In such cases, the Commissioner shall be made a party and shall be heard before any order is passed. The orders passed in the absence of the Commissioner without hearing him in both the cases therefore are bad and not binding on the Commissioner and the orders must be set aside. In Rule No. 1051 D. N. Das Gupta, J. in placing the matter before this Bench observed as follows : "Now whatever direction was given by the learned Magistrate was given in pursuance of the directions of Amaresh Roy, J. In view of the decision of Amaresh Roy, J. this matter should be appropriately heard by the Division Bench. This is also a matter which is of general importance and there should be an authoritative decision. Let this be placed before the Criminal Division Bench. " 8. This is also a matter which is of general importance and there should be an authoritative decision. Let this be placed before the Criminal Division Bench. " 8. IT appears from the order of Amaresh Roy, J. that he felt that the question raised was an important question 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 the third floor, he did not feel inclined to enter into the legal niceties for deeding that point of law to direct restoration of supply of water to the third floor apartment by means of an electric pump. The powers of the High Court under section 439, Criminal Procedure Code is unlimited and the learned Judge could, in the circumstances, refuse to interfere with the order of the learned Magistrate even if it was illegal. He however gave a further direction that if the order of the learned Magistrate was not on eyed by the landlord within a certain date, the Magistrate shall give proper directions to the Commissioner, Corporation of Calcutta, for giving effect to the order of the Magistrate and to take all measures to restore supply of the water on the third floor of the premises and the learned Magistrate in his explanation before this Court has stated that whatever order was passed thereafter by him directing the Commissioner to restore supply was pursuant to the order of this Court passed by Amaresh Roy, J. We agree that the learned Judge in hearing a revisional application may refuse to look into the niceties of the question of law in suitable cases and to interfere even if the order was illegal, but we do not think that fresh burden may be imposed by a revisional order upon a person who is not a party and is not consequently heard, and that without deciding the legality of the Magistrate's order. The learned Magistrate has directed the Commissioner to carry out certain works in the light of the order of Amaresh Roy, J. In view of what we have stated earlier, the orders passed by the learned Magistrate in the other case in connection with Rule No. 1342 cannot be supported and the Magistrate's order must be set aside. The learned Magistrate has directed the Commissioner to carry out certain works in the light of the order of Amaresh Roy, J. In view of what we have stated earlier, the orders passed by the learned Magistrate in the other case in connection with Rule No. 1342 cannot be supported and the Magistrate's order must be set aside. So far as the case in connection with Rule No. 1051 is concerned, Amaresh Roy, J. passed the order in the very case but the Commissioner had no opportunity of appearing before him or being heard and the opportunity arose only after the Magistrate's orders were communicated to him. The order challenged before us is the order of the learned Magistrate directing the Commissioner to remove the nuisance and it is open to us, to set aside the order of the learned Magistrate, for reasons which we have stated in the earlier part of the judgment. We, therefore, hold as follows: (1)Nuisance within the meaning of section 583 read with section 5 (50) though wider than the common law definition of public nuisance, does not extend to the inclusion of all private nuisances ; (2)On the facts of the two cases, there was no nuisance within the meaning of section 583 read with section 5 (50) of the Calcutta municipal Act; (3) The Commissioner was a necessary party and that the order passed without imp leading him as a party was not binding on him; (4) The order passed by the learned Magistrate directing the commissioner to do the things is beyond the scope of section 583, calcutta Municipal Act and as such illegal and should therefore be set aside. 9. THE orders of the learned Magistrate in both the cases are set aside and the rules are, therefore, made absolute.