SARAT CHANDRA ROUTRAI Vs. PURI MUNICIPALITY

JUDGEMENT

(1.) THIS is a revision against the appellate judgment of the Sessions Judge of Puri, maintaining the conviction of the Petitioner under Section 383(1)(a) of the Orissa Municipal Act, 1950 (Orissa Act 23 of 1950) for contravention of the provisions of Section 215(1) of that Act and the sentence of fine of Rs. 55/ - passed on him for that offence, by a First Class Magistrate of Puri.

(2.) THE Petitioner is an Advocate of Puri town. The Puri Municipality started a criminal case against him on the allegation that he obstructed the flow of water in a municipal drain which passes through his garden in Bankimuhan in Puri town by putting bandhs across the same and taking the water for irrigating his garden -thereby causing accumulation of drain water and providing a breeding place for mosquitoes and causing nuisance to the public. On 2 -7 -1962 the Health Inspector of the Puri Municipality (p.w. 1) visited the spot and found the obstruction. He then submitted a report to the Health Officer of the Municipality (p.w. 3). The latter, on 3 -7 -1962, issued a notice on the Petitioner to remove the obstruction within 24 hours but as it was not removed though the notice was served on the Petitioner on 7 -7 -1962, prosecution was launched against him on 22 -7 -1962, after obtaining the sanction of the Executive Officer of the Municipality.

(3.) MR S.K. Ray appearing for the Petitioner urged that there was no satisfactory evidence on the side of the prosecution to show that the drain in question was a public drain of the Puri Municipality and that, consequently a prosecution for contravention of Section 215(1) of the Orissa Municipal Act was not justified. Sub -section (1) of Section 215 of the Orissa Municipal Act says that if any obstruction is put across a public drain so as to interfere in any way with the flow of water over that drain, whether the drain passes through a public or private ground, the person would be guilty of contravention of that section. The language of the section therefore shows that there may be a public drain passing through the private land of another person. The evidence of the three prosecution witnesses as stated above shows that the drain in question in this case is of that type. It is true that none of them could say clearly that they had seen the necessary papers and satisfied themselves that the ownership of the drain vested with the Municipality. But the Petitioner also; in his statement under Section 342, Code of Criminal Procedure never claimed the drain to be his private drain. He being an Advocate may be presumed to know the law on the subject and really if the drain was a private drain be would have said so clearly. Moreover, on the evidence of P.W. 1 (already referred to) it is clear that the Municipality was cleaning the drain though it was inside the compound of the Petitioner and also used to spray oil over it. Section 211 of the Municipal Act gives an indication that where the drain is a private drain, though the municipality may have control over the same, the cleaning of that drain shall be done at the expenses of the owner of the premises in which the drain is found. It may therefore be reasonably inferred that for the purpose of the present prosecution the drain in question, though a kutch one belongs to the Puri Municipality.