1. It does not appear whether the notice issued in this case was issuedunder Section 131 Ors. 135 District Municipal Act, (Bombay Act III of 1901). If it was issued under the former section which provides a penalty, Section 155 would not apply. That section might apply if the notice were under Section 135. The notice does not mention the section under which it was intended to be issued. If the notice was issued under Section 131, the opinion of the Municipality that the vegetation was rank and noisome would be an insufficient ground for conviction, since Section 131 renders the owner liable for non-compliance, not when the Municipality considers vegetation to be rank or noisome, but only when the vegetation is actually so. Thus before a conviction could be had for non compliance with a notice under Section 131 the prosecution would have to establish affirmatively the objectionable character of the vegetation. In the present case no such evidence appears to be on the record. Letters from the Municipal file have apparently been accepted in place of the evidence of witnesses which would have been subject to cross-examination. The Magistrate's judgment deals with the case only as if the offence consisted in noncompliance with a notice to remove the alloo vegetation. But the notice has reference to the filling up (sic) being the verb employed) of the alloo kanch or pit. The Magistrate has not given his attention to this aspect of the case, and, on a careful study of Section 135, it would be seen that before non-compliance with a notice under that section can form the subject of a conviction, it must be shown that there is some pool, ditch, tank, hole, water-ehannel, receptacle of foul water etc. of the kind mentioned in the section, the filling, cleansing, draining or removal of which the Municipality has directed by notice or with regard to which the Municipality has directed such measures to be taken as it considers necessary to abate or remove the nuisance.
2. The learned pleader, who appears in this case for the accused, states that there is nothing to which any of the terms pool, ditch, tank, hole, etc, can properly be applied and that there is a largo area covered with alloo vegetation and no other object in respect of which the Muniepality could exercise the powers con ferred by Section 135. If that is so, it is evident that the offence under Secction 135 could not have been committed by the accused. And as to the removal of the alloo vegetation, the offence under Section 131 could only be established on proof that the vegetation was rank or noisome.
3. The Magistrate has not found whether these essentials exist or not.
4. We must send the case back in order that after taking such further evidence as may be necessary, he may determine whether either or both or any of these essentials exist.