MUNICIPAL BOARD OF ETAWAH Vs. DEBI PRASAD

JUDGEMENT

(1.) THE municipality in this case seems to me to have misconceived the position. I do not know why the District Magistrate thought it was a case of gross injustice. At the outside there had. only been a fine of Rs. 10. It looks more like a case of misunderstanding. THE Board issued a notice under Section 267 of the Municipalities Act of 1916. Section-267 is a section contained in that part of the Act which empowers the Municipality to take such steps as are in their opinion necessary, and of course reasonable, to protect the public against insanitary conditions. THE notice may require an owner to close, remove, alter, repair, cleanse, disinfect or put in good order any latrine, drain, cesspool or other receptacle for carrying away or containing refuse. That section implies that the receptacle, whatever it may be, drain or cesspool, is not in good order and not fit for the purpose, that is to say, the sanitary purpose, for which it is required. Section 267 does not contemplate or deal with any objection which might be raised to the existence of a receptacle which is not based upon a sanitary ground, and the notice in specifying what is required to be provided must necessarily specify what it is which is defective in the existing receptacle. THE Municipality in this case appreciated that necessity and stated in the notice what it was which was objectionable. THE notice complains of a cesspool without a covering, into which passers by are likely to fall at night. That is a sound objection, but is not a sanitary objection. It really is an objection dealing with a dangerous structure or a nuisance in the sense of a source of danger upon the highway. THE result is that the notice issued under Section 267 is a bad notice, and the facts do not show that the receptacle was objectionable from a sanitary point of view. THErefore the member of the public, Pandit Debi Prasad, has committed no offence in ignoring it. THE Magistrate says that Section 263 applies. Section 263 enables the Board to require an owner by notice to protect or enclose any tank or reservoir or excavation in his possession, which appears to the Board to be dangerous by reason of its situation. That is the provision appropriate for an open cesspool into which people are likely to fall at night, and if the Municipality have any ground for taking action about this cesspool they must issue a notice under that section. But if it be the fact, as the Bench Magistrate has said in his original order, that it is not necessary to rebuild the cesspool, the Municipality ought to be content with the cover provided, so long as the protection placed over the opening of the cesspool does not in itself constitute a fresh danger. All that the Municipality have to see is that the covering is sufficiently strong and stable to make the passage of the public free from danger. I dismiss the application.