MAGANLAL HARIBHAKTI Vs. GIRIRAJ A PARIKH

JUDGEMENT

(1.) The applicant was convicted under section 193 of the Bombay Municipal Boroughs Act for having disobeyed a notice given to him under sec. 135 of the said Act. The contention that the notice under sec. 135 of the said Act is bad is rejected because the notice clearly requires the applicant to demolish and close the privies. The contention that permission of the standing committee must be proved is rejected because the words in the section are subject to the control of the standing committee and the words with the permission of the standing committee are not there. But the last contention that there is no evidence that in the opinion of the Chief Officer there is nuisance is sound. In Emperor v. DSilva 39 Bom. L. R. 77 it is held by the learned Judges of the Bombay High Court that the opinion must be properly proved. I agree with this view because one of the requirements which must be satisfied before the section can be applied is that in the opinion of the Chief Officer certain state of facts has to be proved. It is for the prosecution to prove that in the opinion of the Chief Officer a nuisance exists. This contention is therefore accepted.

(2.) The learned Government Pleader however contends that in the following expression:- which in the opinion of the Chief Officer is a nuisance or is so constructed as to be inaccessible for the purpose of scavenging or incapable of being properly cleaned or kept in good order the clause which in the opinion of the Chief Officer applies only to the first part and not to the second part. This contention is rejected because if that was so the clause should have read like this:- which is so constructed as to be inaccessible etc. or which in the opinion of the Chief Officer is a nuisance. That should have been the wording of the section. Therefore this contention is rejected.

(3.) The revision application is allowed and the conviction and sentence of the applicant are set aside. Application allowed.