Damodar Narayan Choudhury and Others vs Emperor

Macpherson, J.—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 and 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.

Now, the Bengal Embankment Act, 1882, has been extended to the area and in addition on 25th 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 u/s 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."

The petitioners having been convicted of the said offence and of abetment thereof u/s 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 u/s 76(b) had been published in the manner required by Section 80. But apart from the decision in Superintendent and Remembrancer of Legal Affairs Vs. Harakali Biswas and Others, , 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.

It is then contended that the petitioners did not "add to any existing embankment" within the meaning of Section 76(b) since the words "existing embankment" must mean the embankment as it existed at the time of the notification in 1911. But in Section 76(b) [as in Section 76(a)] the expression "existing embankment" is in contradistinction to "new embankment" occurring just before, and obviously it means an embankment existing at the time when the addition is made. The contrary view taken in Goverdhan Sihha v. Queen-Empress [1885] 11 Cal 570 was overruled by a Full Bench in Ajodhya Nath v. Rajkrishto [1902] 30 Cal 181. The matter was carried further in Rama Nath v. Emperor (4). If the petitioners in fact raised the bandh at Chaka, as it existed in 1930--and it has been held that they did--they come within the mischief of Section 76(b).

But they also come within that provision because they made a sluice in the bandh. "A sluice annexed to an embankment" is under the definition included in the term "embankment" as used in the Act. It is also no defence to say that previously kachha openings used to be made in the bandh and in 1930 all that was done was to make a pacca sluice, so obviating future temporary cuts in the bandh.

I refrain from expressing an opinion upon the learned Sessions Judge''s view that the sluice, in this case constituted a diversion of a water-course (which by definition includes a line of drainage, weir, culvert, pipe or other channel, whether natural or artificial, for the passage of water). It has been sufficiently shown that the action of the petitioners both in respect of making repairs which in fact added to the bandh and in making a sluice therein render them liable to conviction and punishment u/s 76(b).

It is beside the point that, such additions to or cuts in the old bandh had frequently been made before: 1930--previous permission of the Collector should since 1911 have been, obtained in respect of each of them. Ordinarily permission is readily available but in the area in question, as the prohibitory order u/s 6 implies, it is essential that the Collector should be approached before an embankment is interfered with, even on the plea of public benefit and should give his authorisation. The sentences of fine are not severe. The application is accordingly without merit and the rule is discharged.