EMPEROR Vs. BYRAM KHODADAD IRANI

JUDGEMENT

(1.) THIS is an appeal by Government against the acquittal of the accused Byram Khodadad Irani who was tried by the Presidency Magistrate, First Additional Court, Mazagaon, for an offence under Section 471 (b) of the City of Bombay Municipal Act read with Section 305 of the Act.

(2.) THE accused is the owner of premises which abut on a small street leading into the main Girgaum Road near Kennedy Bridge. It is the case of the Municipality that this street is a private street. Section 305 of the Act empowers the Municipal Commissioner, with the sanction of the standing committee, to require the owners of premises fronting or adjoining any private street to level, metal or pave, drain and light the street in such manner as he shall direct. Section 471 of the Act provides a penalty for failure to comply with a notice in this connection. THE accused was served with a notice requiring him to level, concrete, drain and light the street in a manner specified in the notice and he failed to comply. His case is that the street is not a private street within the meaning of the Act, and the whole case depends on this simple question of fact.

(3.) IT is usually; a matter of some difficulty to prove a negative. But the learned Advocate General has frankly and we think quite correctly admitted that as no definition is given of a private street, except a negative definition, and as this is a criminal trial, it is incumbent on the Municipality to prove, at any rate prima facie, the negative proposition that no works of the necessary kind have been carried out in this street prior to September 14, 1888. IT is said that the Municipality has produced all the records which are available to it and it has been argued that they cannot be expected to do any more than that. IT seems, however, that more definite evidence might have been available if only it had been preserved. IT has been proved that certain drainage and sewerage work in this locality and actually in the street in question was carried out by contract in 1888. The contract for this purpose was signed on May 17, 1888, which was before the present Act came into force. But the Assistant Engineer has deposed (and his statement on that point is not contradicted) that the work under this contract was not started until November, 1888, and was completed in May, 1891. The contract entered into at that time has been produced. IT shows that it was realised at the time that there might be existing drains in the area in which new work: was to be carried out under the contract and Clause (66) of the contract provided that existing drains were to be maintained by the contractor and Clause (145) provided that he was to take up and clean the existing pipes and charge for that in his bill. So that, if the documents relating to this contract had been preserved, it would have been clear whether at that time any existing drains or pipes were found. Unfortunately, however, there are no such documents available and the Municipality's principal witness has had to admit in cross-examination that he cannot say whether there was any sewerage arrangement in this street before the houses were sewered under this contract between November, 1888, and May, 1891.