WASUDEO WAMAN SHENDURNIKAR Vs. AKOLA MUNICIPALITY

JUDGEMENT

(1.) 1. The applicant was convicted by a Bench of Honorary Magistrates of an offence under Section 199, Municipalities Act, and sentenced to pay a fine of Rs. 10. He was further ordered to construct, within ten days of the judgment of the trial Court, the drain in respect of which the notice dated 4th September 1926, was issued by the Municipal Committee, and in case of failure to comply with the order, he was ordered to pay a fine of Rs. 2 per day for the period during which the breach continued. In appeal the Sub-Divisional Magistrate set aside the order in regard to the payment of Rs. 2 fine per day, but maintained the conviction and the sentence of Rs. 10, fine awarded to the applicant. He has now applied in revision to this Court and has challenged the conviction and sentence on various grounds. None of them seems to me to be tenable.

(2.) IT is argued in the first instance that the notice forming the basis of the prosecution was not validly issued, and that it was meaningless and not capable of compliance. The applicant's learned pleader was, however, unable to show in what respect it was invalid. By the notice the applicant was given three alternatives in the matter of the construction of the drain. Even if it be conceded that the permission of Messrs. Anantrao Kolhatkar and Lote - the applicant's neighbours - was needed before starting the work of the construction of the drains mentioned in the first two directions, and that there being no proof of such permission having been obtained beforehand, the first two directions were not capable of compliance, it cannot be said of the third direction, in regard to the construction of a private drain connecting the mori with the Municipal drain at the point where Mr. Anantrao Kolhatkar's drain was connected, was incapable of compliance. No permission of any neighbour was needed to construct the said drain. This disposes of grounds 1 and 2. As regards ground 3, the requisition involved in the third direction cannot be said to be beyond the powers of the Municipal Committee, no permission of any of the neighbours being needed to construct the aforesaid drain connecting the applicant's mori with the Municipal drain. As regards unreasonableness of the time fixed by the notice, raised in ground 4, it is obviously a frivolous plea. It was not raised at all in the trial Court. Had the time been unreasonable the applicant would not have failed to advance the plea in the trial Court. It is only when such a plea is advanced on behalf of the accused that the occasion for determining the question of the reasonableness of time contemplated by the proviso to Section 199, Municipalities Act arises. What the prosecution has to establish in such a case is that a lawful direction was given to the accused by a notice lawfully issued under the powers conferred by Part 3 of the Act, and that' the accused disobeyed the said direction. Both these things were proved by the evidence adduced on behalf of the prosecntion. Section 107 of the Act, comprised in Part 3 empowers the Committee to issue a notice to the owner or occupier of any building requiring him to connect any drain of such a building with a public drain. The notice Ex. P-2 takes along with the direction No. 3 given therein answers the description of such a notice. It follows, therefore, that the direction in question, in the notice law fully issued under Section 107, was a lawful direction which the accused was bound to obey, while the disobedience of the direction is proved by the evidence of P.W. 1, as well as by the accused's own admission of his failure to have' constructed the drain contemplated by direction 3. The two material ingredients of the offence having been established, no exception can be taken to the appellant's conviction under Section 199, Municipalities Act. This disposes of grounds 4 and 5. In this view it is unnecessary to consider ground 6, referring to the finding of the appellate Court in para. 4 of its judgment.