1. This is an appeal by Government against the acquittal of the accused Byram Khodadad Irani who was tried by the Presidency Magistrate, First Additional Court, Mazagaon, for an offence under Section 471 (b) of the City of Bombay Municipal Act read with Section 305 of the Act.
2. The accused is the owner of premises which abut on a small street leading into the main Girgaum Road near Kennedy Bridge. It is the case of the Municipality that this street is a private street. Section 305 of the Act empowers the Municipal Commissioner, with the sanction of the standing committee, to require the owners of premises fronting or adjoining any private street to level, metal or pave, drain and light the street in such manner as he shall direct. Section 471 of the Act provides a penalty for failure to comply with a notice in this connection. The accused was served with a notice requiring him to level, concrete, drain and light the street in a manner specified in the notice and he failed to comply. His case is that the street is not a private street within the meaning of the Act, and the whole case depends on this simple question of fact.
3. 'Street' is defined in Section 3(W) of the Act. It is not disputed that this is a street. Section 3(x) says 'public street' means any street heretofore levelled, paved, metalled, channelled, sewered or repaired by the Corporation and any street which becomes a public street under any of the provisions of this Act. Clause (y) says 'private street' means a street which is not a public street. Therefore it has got to be shown here that the street in question is not a public street, that is to say, has not been levelled, paved, metalled, channelled, sewered or repaired by the Corporation prior to the date when Act III of 1888 came into operation, i.e. September 14, 1888. It is not suggested that the street has become a public street under any of the provisions of the Act. 'Corporation' is defined in Section 3.(b) as the Municipal Corporation of the City of Bombay. There was a Municipal Corporation of the City of Bombay under the prior Act III of 1872. The Act previous to that was Act II of 1865. Under that the Justices of the Peace for the City of Bombay were made a body corporate. The work of public drainage and other matters of that kind were entrusted by that Act to the Municipal Commissioner. But as all these works had to be carried out at the expense of the Corporation, it would be reasonable to say that drainage works, carried out by the responsible authorities under Act II of 1865 as well as those carried out when Act III of 1872 was in force, were works carried out by the Corporation within the meaning of Section 3(x) of the present Act. We have to be satisfied therefore that in the case of the street in question there were no drainage works, for it is only drainage works that we are concerned with, carried out while those two Acts were in operation.
4. The principal witness examined on behalf of the Municipality was an Assistant Engineer and the gist of his evidence may be said to be that there is no record to show that any works were carried out by the Corporation in this street before 1888. It appears, however, in the evidence, and it is not disputed by the learned Advocate General on behalf of the Municipality, that extensive drainage works were carried out by the Municipal authorities in the relevant period from 1865 onwards. It is argued that there is nothing to show that any such works were carried out actually in this street, though the documents on record, for instance a report by one Mr. Tullock in 1872 and a history of the Drainage and Sewerage of Bombay by Mr. Arbuthnot in 1897, do certainly show that there were drainage works carried out in the Girgaum area, that is to say in the locality where this street is. Moreover we can say rather more than that. The oldest map which is available is the map of Laughton's Survey which was made between the years 1865 and 1873. The sheet of Laughton's map which shows the street in dispute, or rather that portion of it which was in existence at that time, also shows that the houses at the side of it had privies and presumably some arrangement must have been made to carry away the sewerage from these: privies.
5. It is usually; a matter of some difficulty to prove a negative. But the learned Advocate General has frankly and we think quite correctly admitted that as no definition is given of a private street, except a negative definition, and as this is a criminal trial, it is incumbent on the Municipality to prove, at any rate prima facie, the negative proposition that no works of the necessary kind have been carried out in this street prior to September 14, 1888. It is said that the Municipality has produced all the records which are available to it and it has been argued that they cannot be expected to do any more than that. It seems, however, that more definite evidence might have been available if only it had been preserved. It has been proved that certain drainage and sewerage work in this locality and actually in the street in question was carried out by contract in 1888. The contract for this purpose was signed on May 17, 1888, which was before the present Act came into force. But the Assistant Engineer has deposed (and his statement on that point is not contradicted) that the work under this contract was not started until November, 1888, and was completed in May, 1891. The contract entered into at that time has been produced. It shows that it was realised at the time that there might be existing drains in the area in which new work: was to be carried out under the contract and Clause (66) of the contract provided that existing drains were to be maintained by the contractor and Clause (145) provided that he was to take up and clean the existing pipes and charge for that in his bill. So that, if the documents relating to this contract had been preserved, it would have been clear whether at that time any existing drains or pipes were found. Unfortunately, however, there are no such documents available and the Municipality's principal witness has had to admit in cross-examination that he cannot say whether there was any sewerage arrangement in this street before the houses were sewered under this contract between November, 1888, and May, 1891.
6. The Municipality maintains lists of public and private roads, exhibit G dated 1891 and exhibit H dated 1918. But they are of no assistance because the disputed street is not shown either as a public or a private one.
7. After considering all the evidence in the case the learned Magistrate came to a positive conclusion that there were drains in this street which carried sewerage and storm water prior to 1888. He does not say in so many words that he concluded that these drains were provided by the Corporation, but apparently that was his opinion. We ourselves are not prepared to go as far as that. We think the evidence makes it extremely probable and indeed practically certain that there was a drainage system in the locality. We think it is also probable, though not by any means so nearly certain, that there were drains actually in the street. We think, however, that the evidence is not sufficiently clear to make it possible to come to a definite conclusion one way or the other, and in particular we think that it remains doubtful whether, if there was any system of drainage, it had been constructed by the Corporation. However, the fact remains that as the evidence on record and available is not sufficient to enable us to come to any definite conclusion and as the burden of proof is admittedly on the Municipality, we are not prepared) to differ from the view taken by the learned Magistrate that this criminal offence has not been established. That being so we must dismiss the appeal.