EMPEROR Vs. LAKSHMI NARAIN AUDDY

JUDGEMENT

(1.) In this case petitioner Lakshmi Narain Auddy of Joraghat, Chinsurah, has been convicted Under Section 76(b), Bengal Embankment Act 2 of 1882, and sentenced to a fine of Rs. 25, in default, to imprisonment for one month. He made a petition Under Section 435 to the Sessions Judge and the Sessions Judge has sent a letter of reference recommending that the conviction be sat aside on the ground that the trying Magistrate was wrong to hold that the river Ganges came within the prohibited area notified by the Government in its notification No. 28-I of 5th September 1929. Mr. N. K. Basu has appeared in support of the reference.

(2.) The grounds taken by Mr. Basu on behalf of the petitioner are (1) as stated by the Sessions Judge, that the notification of 5 September 1929 does not apply to the river Ganges at Hooghli; (2) that the conviction is wrong inasmuch as Section 76 does not apply to this part of the river having regard to the provisions of Section 91, Bengal Embankment Act. That section provides: Nothing in this Act shall apply to any embankment land or water course which is under the operation of any of the following Acts: the Bengal Drainage Act 1880, the Bengal Irrigation Act 1876 and the Bengal Act 5 of 1864.

(3.) The facts in short are that in 1930 the petitioner who has a house on the bank of the river Ganges at Hooghli obtained from the Khas Mahal Department a piece of land on the foreshore. The khas mehal offices demarcated the boundary down the slope of the bank up to the point which was leased by the Government to the petitioner and according to the boundary pointed out by the khas mehal officer the petitioner's peon put down small posts to demarcate the boundary. Afterwards a fencing was erected with high posts at the place and when the river got swollen up in the rainy season the fencing became completely covered with water. At one time when the river was swollen the fencing was as much as 12 feet under water and thereby obstructed navigation. The Collector issued a notice to him to remove the fencing and on his refusal to do so the present prosecution was instituted in June 1932. The original conviction dated 15 December 1932 was set aside by this Court and a re-trial was ordered whereupon the present conviction was obtained on 7 August 1933.