CHAIRMAN, MUNICIPAL COUNCIL Vs. SVASUDEVA KAMATH

JUDGEMENT

(1.) This is x petition by the Chairman of the Manga-lore Municipality to revise the order of the Sub-Divisional 1 Class Magistrate of Mangalore reversing the conviction of the respondent by the Stationary 2nd Class Magistrate of Mangalore for an offence under Section 199 read with Section 338 of the District Municipalities Act and acquitting him.

(2.) The facts are short and practically not in dispute. The respondent is the owner of a compound T.S. No. 127 in the market ward of Mangalore Town. He wanted to erect a new latrine in that compound and made an application to the Municipality on 14 March, 1928, for permission to construct the latrine. The application was accompanied by a site plan and a plan of the building, Exhibits A, A-l andA-2. The place where the respondent wanted to construct the latrine was the north-east corner of the property. It is in evidence that the Health Officer of the Municipality and the Sanitary Inspector inspected the spot when the respondent was present and they, finding that the proposed location of the latrine was unsuitable, pointed out to the respondent a spot at the north-western corner of the property where it might be constructed. The permission was accordingly granted and communicated to the respondent by the order of the Chairman, dated 26 of March, 1928, and a license of permission to erect the latrine at the north-western corner was granted in the usual form of a license with conditions. (See Exhibits D and D-l.) On the 10 April the respondent wrote Exhibit C to the Municipal Health Officer stating that he had asked for permission to construct the latrine at the north-eastern corner but was surprised to find that the permission was to construct the latrine at the north-western corner and suggested that the words "western" and "west" in the license were a clerical error for "eastern" and "east" and requested that the alleged error may be corrected and the license returned with its enclosures. It is admitted that the Municipality has not corrected the so-called error or returned the license to the respondent permitting him to construct the latrine at any other place except that mentioned in the license returned by the respondent. The Municipality, however, moved in the matter by asking the Health Officer to again inspect the place. That Officer did so and reported that the place already pointed out is the most suitable, but that the petitioners and his neighbours are objecting, and that there is no other site which is less objectionable. The visit of the Health Officer and the Sanitary Inspector to the spot after the petition, Exhibit C, is spoken to P.W. 1, who also says that the respondent was then present and learnt the result of the visit, namely, that there was no other site except the one already pointed out to him. This appears to have been on or about the 28 April, 1928. In this state of affairs the respondent wrote Exhibit I to the Chairman of the Municipal Council on the 19 of September, 1928, saying that the license had not been returned to him after correction and that unless the license for the place shown by him in his application, namely, the northeastern corner, were granted to him before the end of October, 1928, he would commence the construction without the permission. Upon this, one Mr. Madhava Rao, Councillor for the ward, at the request of the Chairman visited the property and made another suggestion as to the location of the latrine, and the Chairman requested the Health Officer to communicate to the respondent the site selected by Mr. Madhava Rao as suitable. But the Health Officer protested that the place selected by Mr. Madhava Rao was quite insanitary being only 2 feet from a place of worship used by the local people and that it is very close to the main road adjoining which there is a mutt as well as a temple. He insisted that the north-western corner which had been already pointed out and for which permission had already been given was the only site suitable from a sanitary point of view. Therefore the proposal of Mr. Madhava Rao was never communicated to the respondent, and the position was just the same as when the respondent returned the license for correction. The respondent thereupon began the construction of the latrine where he wanted, that is, at the northeastern corner. The Municipal Sanitary Inspector discovered this early in January, 1929. Thereupon, on the 2nd of January, 1929, a notice was issued to the respondent by the Health Officer to stop the work. He refused to do so. The Chairman sent another notice on the 8 January. The respondent still persisted and justified himself on the ground that he had already by his letter of the 19 of September, 1928, intimated his intention to commence the construction of the latrine, if no license was issued to him by the end of October, 1928. He also informed the Chairman that the latrine had been completed "yesterday evening". Thereupon this prosecution was started against the respondent for constructing the latrine without permission.

(3.) The Stationary Sub-Magistrate held that the respondent was guilty under Secs.199 and 338 of the District Municipalities Act, although in his view the respondent had been hardly treated by the Municipality by no reply being sent to him to his letter of the 19 September, 1928. He, therefore, fined the respondent Rs. 15. In appeal, the Sub-Divisional Magistrate set aside this conviction on two legal grounds: first, according to the Magistrate, it was not a case of construction of a building without permission, because permission had already been granted, although it was for a different site; and secondly, according to the Magistrate, the offence fell not under Section 338 of the Act but under Section 317 of the Act.