DAMODAR NARAYAN CHOUDHURY Vs. EMPEROR

JUDGEMENT

(1.) The first petitioner is the zamindar of village Chata in the district of Darbhanga and the second petitioner is his servant. Though the village runs an old bandh (or embankment) with cultivated land on both sides. In March 1930 the second petitioner under the direction of the first petitioner had earth thrown upon the bandh thereby raising: the height of it, and between that month a January, 1931 made similar repairs and also placed in the bandh a sluice gate with two openings. The top of the bandh is, as often happens, used as a road and the repairs were probably made to improve the road; the sluice of course was intended to facilitate cultivation of lands on one side or on both sides of the bandh.

(2.) Now, the Bengal Embankment Act, 1882, has been extended to the area and in addition on 25 July, 1911, the Lieutenant-Governor by notification in the Calcutta Gazette, declared the limits of the tract, including the village mentioned, within which the provisions of Clause (b), Section 76 of the Act should take effect and thereupon that enactment took effect in the area one month after the publication of the notification. Section 76(b) sets, out that: every person who, within the limits oil the tract included in any prohibitory notification under Section 6, without the previous permission, of the Collector, shall erect, or cause or wilfully permit to be erected, any new embankment, or shall add to any existing embankment, or shall obstruct or divert, or cause or wilfully permit, to be obstructed or diverted, any water-course, shall be liable on conviction to a fine not exceeding Rs. 500."

(3.) The petitioners having been convicted of the said offence and of abetment thereof under Section 76(c) have obtained the present rule for the considerations of the convictions and the respective sentences of fine of Rs. 51 and Rs. 25. Admittedly the previous permission of the Collector was neither sought nor obtained. Mr. B.N. Mitter first contended that there was no proof that the notification under Section 76(b) had been published in the manner required by Section 80. But apart from the decision in Superintendent and Remembrancer of Legal Affairs, Bengal V/s. Harkali Biswas AIR 1931 Cal 435, it is obvious on perusal of Section 6 that the notification applying Section 76(b) comes into effect one month after the date of its appearances in the Calcutta Gazette irrespective of further publication under the last part of Section 6 and in the manner set out in Section 80 which publication is directory merely and not mandatory. Moreover, local publication was also established at the trial.