Rampartap Lal vs Barh Municipality

Jwala Prasad, J.—This is an application against the conviction of the accused u/s 271 of the Bengal Municipal Act (Act III of 1884).

On an application, dated the 26th of February, 1921, made by Saukhi Lal of Barh and on a report drawn by the Sanitary Inspector, dated the 2nd of March, 1921, a notice, dated the 4th of March u/s 224 of the Municipal Act was served upon the petitioner to remove a new latrine which he had constructed upon his premises without the permission of the Municipality within 15 days. On the 7th of March, the petitioner filed an objection (Exhibit 7) before the Municipality against the said notice, and on a report of the Sanitary, Inspector and the Vice-Chairman, the Chairman recorded the following order upon the back of the petition :-

" Please prosecute the man if you are satisfied that the privy is objectionable and erected without permission."

On the 28th of April, the Vice-Chairman passed the following order (Exhibit 8) :-

" Instruction was given to him to settle the matter amicably, but he failed. The privy was built without permission. However, prosecute him."

This order is said to have been verbally communicated to the petitioner by the Vice-Chairman. The petitioner was thereafter prosecuted and convicted. He has been directed to pay a fine of Rs. 15 for not having pulled down the privy within 15 days of 4th of March, 1921, that is, within the 19th of March, 1921, and annas 2 for every day subsequent to that till the said privy is removed. This order has been passed u/s 271 of the Bengal Municipal Act.

Mr. Yunus contends that his objection filed on the 7th of March, was not disposed of in terms of Section 178 of the Act, nor was any time specified within which the requisition was to be carried out. On the other hand, the Magistrate holds that the order of the Chairman, dated the 6th April, and of the Vice-Chairman, dated the 28th of April, had the effect of making the requisition absolute and that the time of 15 days mentioned in the first requisition was a sufficient compliance with the requirements of Section 178.

It is, however, conceded that no order in terms of Section 178 was recorded and the orders of the Chairman, dated the 6th of April, and of the Vice-Chairman, dated the 28th of April, cannot be construed to be a record of the disposal of the objection of the petition filed by the petitioner. Even if those orders can be construed as such they should have specified the time within which the requisition was to be carried out. The fact that 15 days time was mentioned in the original notice served on the 4th of March does not absolve the Municipal authorities from the obligation of again specifying, after the disposal of the objection u/s 178, the time within which the requisition shall be complied with.

The original notice of the 4th of March spent itself on the 19th of March and became nugatory after the objection of the 17th of March was filed by the petitioner u/s 178. The objection u/s 178 may be withdrawn by recording a formal order, and if made absolute the person affected thereby is entitled to a fresh time within which to comply with the order of the Municipality.

He objected to the first notice and the right of the Municipality to require him to demolish his latrine, and therefore, he did not comply with that notice. The law permits him not to comply with the notice in the circumstances, that is, when he files an objection. If the objection is decided in his favour, then the notice is cancelled. If, on the other hand, it is decided against him, then the decision cannot have the retrospective effect of punishing him for the default committed by him with respect to the first notice and imposing a fine with retrospective effect from that date, as has been done in the present case.

It is also clear from the concluding words of Section 271 of the Act, which imposes a daily fine during the continuance of the default after the service of requisition on him. If no objection is made, then the default after the service of notice will bring him under this clause. If, on the other hand, he makes an objection, then the default after the service of a fresh requisition and after the disposal of the objection, will make him liable for the disobedience of that requisition. Therefore, the contention of Mr. Yunus appears to be substantial, though I fully agree with the view of the Magistrate that it is a technical one.

The conviction and the sentence are set aside. The Municipality will be at liberty to proceed afresh after the service of notice u/s 178 and after recording a formal order.