EMPEROR Vs. RAJA BAHADUR SHIVLAL MOTILAL

JUDGEMENT

(1.) THE respondent here was served with a notice or requisition under Section 377 of the Bombay Municipal Act, III of 1888, requiring him to remove filth, rubbish, heaps of cutchera and stable refuse from a large piece of vacant land belonging to him. THE requisition was not complied with and a prosecution was instituted in the Court of the Presidency Magistrate. THE learned Magistrate, on the 25 of May, adjourned the case so that he himself might view the premises in question, and having so viewed them, but without hearing any evidence, acquitted the respondent, recording his reason for that acquittal in these words : " THE heap was seen by me and it is not cutchera but only earth." On this appeal, it is represented to us by the Advocate-General, on behalf of the Municipal Commissioner, that though the accumulation of the rubbish in question had outwardly the appearance of an undulating mound of earth of varying height extending for about thirty yards along the western side of the vacant land, it was found, on inspection by the Health Department, to be nothing less than a heap of house and stable in all stages of decomposition and that there were at least eighty cart-loads of such refuse in the said heap, that evidence of these facts was available and that the learned Magistrate was so informed. But, however that may be, the respondent's acquittal cannot be sustained. THE learned Magistrate, I think, has somewhat misread Section 377 of the Municipal Act. He has read it as if it enacted that certain consequences should ensue when the premises appeared to the Magistrate to be in a filthy condition. But that is not so. As we understand the section, it enacts that the only condition precedent to the valid issue of a requisition is that it shall appear, not to the Magistrate but to the Commissioner, that the premises are in such a condition. It is not denied here that these premises did appear to the Commissioner to be in the condition specified; and the notice was, therefore, validly issued under Section 377. That being so, the Magistrate was, I think, wrong in acquitting the accused on the sole ground that the premises did not appear to the Magistrate to be in such a condition as to justify the issue of a notice under the section. It is admitted before us now that the Municipal Commissioner's order has not been complied with. I am, therefore, of opinion that the acquittal should be set aside and that the respondent should be convicted under Section 471 of the Act. But, in the circumstances of the case, a nominal fine of one rupee will, I hope, be enough. Knight, J.

(2.) I concur.