SURESHCHANDRA BOTHALAL Vs. STATE OF GUJARAT

JUDGEMENT

(1.) These are two companion appeals which are directed against the judgment and order of acquittal of the second respondent in each appeal who were Managers respectively of the Mahendra Mills at Kalol and the Bharat Vijay Mills at Kalol. The respondent No. 2 in Criminal Appeal No. 274 of 1972 is the manager of the Mahendra mills who was tried in Summary Case No. 1261 of 1971 for the offence punishable under sec. 193 of the Gujarat Municipalities Act in so far as the Kalol Municipality had filed a complaint that the mill was draining dirty water out of the mill and the manager had thus committed the offence punishable under sec. 193 of the said Act. The respondent No. 2 in Criminal Appeal No. 275 of 1972 is the manager of the Bharat Vijay Mills he was tried in Summary Case No. 1260 of 1971 for allowing the dirty water of the Mill to be drained out of the Mill and to be collected in the open space outside. The gravamen of the charge in both the cases was identical viz that the Mills had allowed to drain out dirty water upon the open space outside and had thus committed offence punishable under sec. 193 of the said Act. The offence in both the cases was alleged to have been committed on the same day viz. 19th March 1971 and the complaint was filed by one Sumanchandra Bothalal Food-cum-Sanitary Inspector of the Kalol Municipality on 24th March 1971 in each case. The manager of the Bharat Vijay Mills was tried in Summary Case No. 1260 of 1971 for the said offence. The evidence in the two summary cases was led separately and the two criminal cases were rightly not consolidated. But the evidence is identical and so is the judgment and an order of acquittal in both the cases. The learned Judicial Magistrate has by two separate judgments delivered in two cases acquitted the accused in each case on his taking the view that if one collects the water on ones own land or premises and does not allow it to drain or to collect upon municipal streets or upon open space his act is not covered by the provisions of sec. 193 of the Gujarat Municipalities Act 1963 He has found that there was no proof that the mill drained its dirty water on any part which was either municipal street or open space. He has further found that the place where the dirty water was allowed to be collected was on the boundary of the town and in the Sim area of village Saij and that there was no evidence on the point that the place where it was drained and collected was within the municipal limits. In this view of the matter the learned Magistrate has found the accused in each case to be not guilty of the offence punishable under sec. 193 of the Gujarat Municipalities Act and has acquitted the accused in each case under sec 245 (1) of the Criminal Procedure Code 1898 The original complainant viz. the Food-cum-Sanitary Inspector of the Kalol Municipality has filed Criminal Appeals against the acquittal of the accused viz. the manager of the Mahendra Mills Kalol and the manager of The Bharat Vijay Mills Kalol in the respective cases as aforesaid. Although these are two separate appeals dealing with the offences committed by two different accused persons as the evidence is identical and as the question involved is also identical I would appropriately dispose of both these appeals by this common judgment and this is with the consent of the learned Advocates of the parties.

(2.) Mr. M. I. Patel learned Advocate appearing on behalf of the appellant in each appeal has contended that the learned Magistrate was in error of law in finding that the word open space occurring in sec. 193 of the Gujarat Municipalities Act 1963 mean only the open space of the Municipality. In Mr. Patels submission the open space may be owned by a private individual or a company and need not necessarily be the Municipal space and if a private owner or if any occupant allows any water to run or drain upon any open space may be of the Municipality or may be of the same occupant it would be a mischief envisaged by sec. 193 of the Act and an offence under sec. 193 must be held to have been committed in such a case. As against this Mr. A. C. Gandhi learned advocate appearing on behalf of the Mahendra Mills and Mr. C. B. Naik learned Advocate appearing on behalf of the Bharat Vijay Mills have contended that the word open space occurring in sec. 193 of the Act must necessarily mean the municipal open space and therefore no offence could be said to have been committed if the water is allowed to go or drain in such open space which is owned by a person other than the Municipality.

(3.) Now sec. 193 of the Gujarat Municipalities Act 1963 (which will hereafter be referred to as the Act) read: