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Birendra Chandra Banik Vs. Adhir Chandra De - Court Judgment

LegalCrystal Citation
Subject;Criminal
CourtGuwahati High Court
Decided On
Judge
AppellantBirendra Chandra Banik
RespondentAdhir Chandra De
Excerpt:
.....cannot call upon a man to d0 a thing which is not within his control and they cannot prosecute a man for his failure to do so. p-7 had complained of the nuisance on account of the smell emanating from the latrine. 11. the learned sessions judge did not see the provision of section 280 of the municipal act, which has been referred to by the magistrate in his judgment it provides that in case of any doubt arising as to whether the owner or occupier of a house will enjoy the rights or perform the responsibilities under the act, or the rules or bye-laws framed thereunder, the commissioner after necessary enquiry shall decide the matter. actually there was evidence before the magistrate that there was no such enquiry by the commissioner and that the municipal health officer under the..........sessions judge has referred to section 253 of the act and has stated that as an occupier of the house notice under the act could be served on him. but a perusal of that section which prescribes the manner in which notices are to be served certainly does not show that for any unauthorised action of the owner, notice can be served on the occupier and the latter made liable for it.11. the learned sessions judge did not see the provision of section 280 of the municipal act, which has been referred to by the magistrate in his judgment it provides that in case of any doubt arising as to whether the owner or occupier of a house will enjoy the rights or perform the responsibilities under the act, or the rules or bye-laws framed thereunder, the commissioner after necessary enquiry shall decide.....
Judgment:

T.N.R. Tirumalpad, J.C.

1.The Petitioner was convicted by the first class Magistrate, Agartala under Section 297 of the Tripura Municipal Act and sentenced to pay a tine of Rs. 25/- and in addition to pay a daily fine of Rs. 5/- from 26-6-1958 until the removal of the latrine unauthorisedly built in his house without the permission of the Agartala Municipality. He filed a revision against the conviction and sentence before the Sessions Judge but it was dismissed. Hence he has come forward in revision to this Court.

2. The facts leading to this application are as follows:

On 18-1-1955 one Kalyani Banik got a lease from the Maharaja of Tripura of a plot of land in the Palace Compound and she built a house therein. The Petitioner is the husband of the said Kalyani Banik and they have been living together in the house ever since. Nripendra Chandra Paul, P. W. 4 was the lessee of the neighbouring plot and had his house thereon. On 22-6-1956 Nripendra Chandra Paul put in a petition Ext. P-7 to the Health Officer of the Agartala Municipality stating that Kalyani Banik has built a kutcha latrine in her compound without the permission of the Municipality and that it was emanating foul smell and causing inconvenience to him and that action should be taken against her.

The petition was sent by the Municipal Health Officer to the Sanitary Inspector for enquiry and report. The Sanitary Inspector made a report that the Petitioner, the husband of Kalyani Banik was using the kutcha latrine without the permission of the Municipality as a result of which Nripendra Chandra Paul was suffering badly and that a notice should be served to remove the same immediately. Thereupon the notice Ext. P-6 was given to the Petitioner by the Sanitary Inspector stating that he was causing inconvenience to the public by the construction of the kutcha latrine and that it should be removed within 24 hours.

The notice appears to have been served on, the Petitioner's nephew Chunilal Banik on 4-7-1956. The Petitioner then put in a petition on 6-9-1956 agreeing to construct a sanitary latrine and asking for time. Time was given by the Administrator of the Municipality till the end of December, 1956. But he did not remove the latrine on 9-2-1957 the Health Officer submitted a report to the Administrator that the latrine should be removed without delay. He stated in addition that the site was not suitable for the construction of even a sanitary latrine. On this report, the Administrator passed an order that the latrine should be removed by 15-2-1957 or action would be taken according to law. But the Petitioner did not remove the latrine and he was prosecuted.

3. In the trial which followed, one of the contentions of the Petitioner was that he was not the owner of the premises and that he did not put up the latrine and that he was not therefore liable for its removal and the Municipality had no right to prosecute him. Various other defences were also raised by him. All the contentions of the Petitioner were rejected by the Magistrate and he was convicted and sentenced as stated above. The Sessions Judge in revision also rejected the pleas of the Petitioner and refused to interfere or to make a reference to this Court. Hence the Petitioner has come up in revision.

4. I heard arguments only on this one question as to whether the Petitioner was liable for prosecution for his failure to remove the latrine (which belonged to his wife) on receipt of a notice from the Municipality. The learned Magistrate treated this defence as a minor one. He found that the lease deed for the site was in die name of Kalyani Banik the wife of the Petitioner. But the learned Magistrate did not consider the effect of the lease being in the name of Kalyani Banik. He accepted that, in law, Kalyani Banik was the owner of the house and the latrine. But he took into consideration the fact that the Petitioner was living in the house along with his wife and that when the Sanitary Inspector visited the house for enquiry it was the Petitioner who had discussions with him and not kalyani Banik.

The Magistrate thought that in a case of this nature the interests of the wife and husband were inseparable and that it was the accepted principle of law to permit one to represent the other to fight out the issue in Courts. He found that the offence arose out of real property and that the punishment provided was confined to fines and not imprisonment. Further Section 280 of the Tripura Municipal Act provided that if any doubt arose as to who among the proprietors or occupants would enjoy the rights or discharge the responsibilities under the

Tripura Municipal Act, the Commissioner was to determine it after holding the necessary enquiry.

He thought 'that the section did not therefore exclude the occupiers of the premises from the enjoyment of the rights and from the discharge of the duties and reciprocal consequences arising out of the same'. He found however that there was no evidence as to whether any doubt arose in the present case and whether it was determined or not by the Commissioner after an enquiry. Even in the-absence of such evidence, the Magistrate held that the prosecution of the Petitioner who was admittedly an occupier of the house was valid.

5. The learned Sessions Judge in revision agreed with this finding of the Magistrate though for different reasons. According to him, under the Municipal Act notices prescribed thereunder could be served either upon the owner or upon the occupier and that even though the Petitioner was not the owner, he was an occupier and notices were served on him and he appeared before the authorities and disregarded the directions for the removal of the latrine. He held that if notices under the law-could be served upon the Petitioner, it followed that he could as well be punished for disregarding the notices.

6. I am afraid that neither the learned Magistrate nor the learned Sessions Judge understood the position correctly so far as the liability of the petitioner is concerned. Both the Courts accepted die position that Kalyani Banik, the wife of the Petitioner took the house site on lease from the Maharajah and that she built the house and the unauthorised kutcha latrine. The Petitioner, no doubt, has been living in the house along with his wife and it is quite possible that he was also using the latrine as an occupier of the house. We have thus to start with the position that Kalyani Banik was the owner of the house and latrine while the Petitioner was only an occupier of the house along with his wife, the owner.

The very first petition to the Municipality --Ext. P-7 by P. W. 4 Nripendra Chandra Paul Was also to the effect that it was Kalyani Banik who built the kutcha latrine in her compound without the permission of the Municipality. Thus, the Municipal authorities knew full well that Kalyani Banik was the owner. The trouble in this case arose because the Sanitary Inspector submitted a report on the petition Ext. P-7 that the Petitioner was using the kutcha latrine without permission as a result of which Nripendra Chandra Paul was suffering badly and that therefore a notice should be served on the Petitioner to remove the same immediately.

Even this report did not show that the Petitioner was the owner of the latrine. The complaint against him by the Sanitary Inspector was only that he was using the latrine without permission. As far as I understand the Tripura Municipal Act, no permission of the Municipality was necessary to use a latrine. Section 150 of the Tripura Municipal Act provides that no one shall be entitled without the written permission of the Commissioners in a meeting to construct or keep in existence a Methor service latrine. he objection under that section is for constructing the latrine without permission and not for using the latrine. It follows that the liability under that section was on the person, who constructed and not on the person who used the latrine.

7. This distinction between construction and use does not appear to have been understood by Municipal authorities. When the report of the Sanitary Inspector about the use of the latrine by the Petitioner reached the Health Officer, he submitted a report that the Petitioner constructed the service latrine without permission from the Municipality. There is no doubt now that this was a wrong statement.

It was on this mistaken assumption that the entire proceedings against the Petitioner followed. The notice was served on the Petitioner on the basis that he constructed the latrine and he was called upon under Section 152 of the Municipal Act to demolish the latrine. Actually, the Petitioner has no legal right to demolish a latrine constructed by his wife. It may of course be that he may be able to persuade his wife having regard to the marital relationship between them. But that is not the point. The Municipality cannot call upon a man to d0 a thing which is not within his control and they cannot prosecute a man for his failure to do so.

8. When we come to the actual complaint tiled in this case by the Sanitary Inspector on 4-3-57, we find that the complaint was under Sections 150 and 152 of the Municipal Act stating that the Petitioner constructed the semi-pakka latrine without permission, as required under Section 150 of the Act and that he was given notice under Section 152 of the Act, to dismantle and remove the latrine, but that he has not complied with the same.

It follows that the complaint itself was based on the wrong assumption that the Petitioner was the owner of the house and that he had constructed the latrine. I am emphasising this because I wish to make it clear that he was not being prosecuted as the occupier of the house and latrine, but as the owner thereof and because both the lower Courts have punished him as the occupier of the house. One fails to see how he can be convicted as the occupier, when the prosecution was on the ground that he was the owner.

9. The Municipality could have proceeded against the Petitioner under Section 232 of the Act on the ground that as an occupier of the house he was committing nuisance by his use of the latrine and thereby causing annoyance to the residents of that place or on the ground that the use of such a latrine was a menace to public health. Actually, P. W. 4 in his petition Ext. P-7 had complained of the nuisance on account of the smell emanating from the latrine. Section 232 of the Municipal Act has prescribed the procedure to be adopted in a case where such nuisance is committed either by the owner or occupier of a house. It has to be made clear that the said procedure was not followed and the prosecution did not proceed under Section 232 but under Section 150.

10. There is no doubt that, as far as Section 150 is concerned, the prosecution can only be against the person who constructed die latrine. If it was the owner who constructed the latrine, then the Municipality can proceed against the owner or if it was the occupier then the notice under Section 152 and the prosecution has to be against the occupier. There is no doubt that when the latrine has been constructed by the owner of the house, no prosecution can be launched against the occupier. This is all the more so when the owner who constructed the latrine is himself or herself in occupation of the house.

No doubt Section 152 states that the Commissioner shall be entitled to give notice to the owner or occupier of a house to direct the dismantling of any latrine. But it is clear that the notice can only be to the person whether owner or occupier who constructed the latrine. That is the only reasonable construction which can be put on the section. Otherwise we will land ourselves in difficulties. If a latrine has been constructed by the owner and the Municipality proceeds against the occupier and gives him notice to dismantle the latrine, the occupier will not be in a position to conform to the terms of the notice as he has no legal right to demolish any structure put up by another person.

In the same way, if it was the occupier who had constructed the latrine, the owner will not be in a position to demolish it Thus if one of them is prosecuted for the construction made by the other without permission and punished as in this case with daily fine until the demolition is effected the position will be utterly ridiculous. Courts must be careful to pass only such orders as a person is in a position to perform. The learned Sessions Judge has referred to Section 253 of the Act and has stated that as an occupier of the house notice under the Act could be served on him. But a perusal of that section which prescribes the manner in which notices are to be served certainly does not show that for any unauthorised action of the owner, notice can be served on the occupier and the latter made liable for it.

11. The learned Sessions Judge did not see the provision of Section 280 of the Municipal Act, which has been referred to by the Magistrate in his judgment It provides that in case of any doubt arising as to whether the owner or occupier of a house will enjoy the rights or perform the responsibilities under the Act, or the Rules or bye-laws framed thereunder, the Commissioner after necessary enquiry shall decide the matter. This section is intended for the Commissioner in case of doubt to decide as to whether the notice should be given to the owner or occupier. But as far as the present case is concerned, there was no such doubt at all, as the very first petition Ext. P-7 made it clear that Kalyani Banik, the owner built the latrine which meant that she was liable to perform the responsibilities under the Act.

The occupier has no concern whatsoever with the matter. The mistake, as I said, arose because the Health Officer was under the wrong impression that the Petitioner built the latrine, even though the Sanitary Inspector only reported that the Petitioner was using the latrine built by the owner.

12. The only other question which remains is whether, as stated by the learned Magistrate, the fact that the Petitioner happens to be the husband of the owner created any special responsibility in him and whether the Municipality was authorised to serve notice on the husband to comply with any directions under the sections of the Act which have to be complied with by the wife. There is nothing in the Tripura Municipal Act which creates such special responsibility or authorises the Municipality. Under Article 19 of the Constitution every citizen has the right to acquire, hold and dispose of property.

The learned Magistrate committed a sorry error in thinking that it was an accepted principle of law to permit a wife or husband to represent the other to fight out the issue in Courts. That is a meaningless statement. Under Indian Law, the wife has every right to have her own separate property and she alone will be liable to perform the duties arising out of the ownership of such property. The further statement of the Magistrate that because the punishment provided for under Section 297 of the Municipal Act was confined to fines only, the husband could be fined for the acts of his wife is another absurd proposition which does not require any comment.

The learned Magistrate again erred in stating that because there was no evidence before him whether the Municipal Commissioner held any enquiry under Section 280 of the Municipal Act to decide whether the owner or occupier was liable the benefit of such lack of evidence should go in favour of the prosecution. It was the duty of the prosecution to prove that an enquiry was held as provided under Section 280 and that it was decided after the enquiry that the Petitioner as occupier was liable to dismantle the latrine. Actually there was evidence before the Magistrate that there was no such enquiry by the Commissioner and that the Municipal Health Officer under the mistaken impression that the Petitioner has constructed the latrine had recommended his prosecution. The Magistrate and the Sessions Judge failed to see that the Petitioner was being prosecuted as owner and not as occupier.

13. It was pointed out by Mr. Chowdhury appearing for the Respondent that the Petitioner accepted the notice issued by the Municipality, that he not only did not raise any protest that he was not the owner and hence not liable, but that he got the time extended by the Municipality for dismantling the latrine and that he should not be heard to contend when prosecution was launched against him that he was not the person to be proceeded against. There would have been some point in this argument it the notice issued to the Petitioner had shown whether it was in his capacity as owner or as occupier. But the notice is silent about it. Hence, the Petitioner has every reason to think that he was being proceeded against as occupier. What he has tried to show before me is that as occupier he was not liable. He has succeeded in proving that to me.

14. There is no doubt therefore that the conviction cannot stand in this case. If it is allowed to stand it will mean that the Petitioner will have to be paying the fines so long as his wife does not dismantle the latrine. It is a most meaningless order on the part of the Magistrate and it has to be set aside. The conviction and sentence are therefore set aside and the Petitioner is acquitted. Fine, if any collected will be refunded.


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