HEM CHANDRA NASKAR Vs. EMPEROR

JUDGEMENT

(1.) The petitioners before us have been convicted by the Deputy Magistrate of 24-Parganas by his order, dated the 29 February, 1928, under Section 76 (a) of the Bengal Embankment Act (II of 1882) and have each been sentenced to pay a fine of Rs. 500 or, in default, to suffer rigorous imprisonment for four months, and they have been further directed under Section 79 of the said Act to remove a certain cross dam within one month from the date of the order in question. There were two appeals to the Sessions Judge by the two petitioners, but the Sessions Judge by his order, dated the 10 April, 1928, dismissed the said appeals.

(2.) The facts involved in this application, shortly stated, are as follows: A complaint was preferred by the Assistant Engineer, Irrigation Department, Tolly's Nulla Sub-Division, to the effect that the petitioners had erected a bund across a khal known as the Bantola khal and that the said bund had prejudicially affected the Bidyadhari river. The petitioners were then summoned to answer a charge under Section 76 (a) of the Bengal Embankment Act being Act II (B.O.) of 1882.

(3.) It is alleged on behalf of the prosecution that the said Bidyadhari river is a tidal river which runs into the Matla river which in turn discharges into the Bay of Bengal; that the Bantola khal starts from the Garangacha sluice of the schedule D embankment No 96 and takes a north-east course and falls into the Bidyadhari river and it is, in fact, spill channel of the Bidyadhari river; that the suburban sewage outfall channel of the Corporation of Calcutta falls into the Bantola khal about three furlongs to the west of the junction of the Bantola khal with the Bidyadhari river and that the schedule D embankment No 96 (which has got three sluices) runs in a south-western direction from near the suburban sewage outfall channel about 1 1/4 miles from the junction of that channel with the Bantola khal; that the accused, who are the petitioners before us, erected or caused to be erected or permitted to be erected sometime before the monsoon in 1925 a cross bund across the Bantola khal and diverted the Bantola into the Boyernala khal and that the said acts of obstruction and diversion were likely to interfere with or impede the Bidyadhari river which is a public water-course and also the public embankment schedule D No. 96. On behalf of the defence it was alleged that the Bantola and the Boyernala khals belonged to the petitioner No. 1 and that the bund in question was necessary for the protection of the said petitioners properties.