GULAMHUSEIN AHMEDALLY Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THE petitioner Gulamhusein Ahmedally was charged with having committed an offence under Section 274 (1) read with Section 471 of the Bombay Municipal Corporation Act. The petitioner was tried before the Presidency Magistrate, 16th Court, Bombay, and was convicted by the learned Magistrate for the offence of failing to comply with the requisition made by the Municipality on 25-4-1955, and was sentenced to pay a fine of Rs. 50/- and in default of payment of fine to suffer simple imprisonment for 7 days.

(2.) ON 25-4-1955, the Deputy Municipal Commissioner for the City of Bombay served upon the petitioner a notice purporting to act under the powers reserved under Section 274 (2) of the Bombay Municipal Corporation Act 1888 directing the petitioner "to work the pump adequately and regularly so as to keep the overhead tanks replenished at all following times 8 P. M. to 10 P. M. 11 to 1 A. M. 3 A. M. to 5 A. M. and 3 P. M. to 5 P. M. ". The petitioner did not carry out the requisition, and an officer of the Municipality visited the premises of the petitioner and found that the water-supply to the premises was inadequate. Thereupon a complaint was filed against the petitioner for failing to comply with the requisition made under Section 274 (2 ).

(3.) AT the trial the petitioner stated that he had complied with the requisition and that the water supply was adequate. The petitioner, however, admitted that he did not work the pump at the time specified in the notice. The learned Magistrate believing the testimony of the officer who was examined on behalf of the Municipality, that the water supply in the premises of the petitioner was inadequate, convicted the petitioner. Section 274 of the Bombay Municipal Corporation Act in so far as it is material authorises the Commissioner to require, by written notice, the owner of any premises furnished with a private water supply from any municipal water-work to provide such premises with cisterns and fittings of such size, material, quality and description and placed in such a position and with such safe and easy means of access as he thinks fit. Under Sub-section (2) the Commissioner is also authorised from time to time to prescribe the size, material, quality, description and position of the pipes and fittings to be employed for the purpose of any connection with, or of any communication from, any municipal water-work. It is evident from the provision contained in Section 274 that the Commissioner is entitled to call upon an owner to put up cisterns and fittings of the size, material, quality and description as he thinks are proper having regard to the requirements of the occupants of the building. He is also entitled to require that such fittings be placed in such positions and with such safe and easy means of access as he thinks proper. The Commissioner is also entitled to prescribe the size, material, quality description and position of the pipes and fittings to be employed. But it does not appear that the Commissioner has any power to direct an owner that a pump installed in a building shall be worked at particular times so as to keep the overhead tanks replenished. It may be open to the Commissioner to require that the owner should alter the fittings so that there may be an adequate water-supply in building, where in the opinion of the Commissioner the supply is inadequate. Such a requisition may fall within Section 274. But I am unable to see how the requisition which was made by the Municipality by notice, dated 25-4-1955, could be made relying upon the terms of Section 274 of the Bombay Municipal Corporation Act. It is true that in view of the prevailing shortage of the supply of water considerable hardship is caused to occupants of buildings but no provision has been pointed out to me from the Bombay Municipal Corporation Act which justifies the Commissioner in passing the order which he has done. It appears that there is a lacuna in the Act which requires to be remedied. The Municipality may, therefore, move the Government for amending the Act so as to authorise the Commissioner to pass orders requiring the owners of buildings to maintain an adequate supply of water, by providing or making mechanical contrivances for that purpose and giving incidental directions that the order passed by the Commissioner was intended for the benefit of the occupants of the building cannot be gainsaid. But it is unfortunate that he has no authority to pass the order. The conviction of the petitioner will, therefore, be set aside and the order imposing sentence passed against the petitioner is also set aside. The fine if paid by the petitioner to he refunded.