1. The complainant, who is the Sanitary Insp ector of the Municipality of Igatpuri, charged the accused with an offence under Section 155 of the Bombay District Municipal Act III of 1901, on the ground that the accused had disobeyed a notice from the Municipality inasmuch as he did not remove a cess-pool and took no notice of the Municipality's requirements.
2. Section 155, under which the charge is brought, provides that--'Whoever disobeys or fails to comply with any lawful direction given by any written notice issued by a Municipality under any power conferred by Chapter IX shall be punished in the manner provided by the section.'
3. We have, therefore, to ascertain whether the accused has disobeyed or failed to comply with any lawful direction given by written notice. It is alleged that he has failed to comply with a written notice given under Section 107(2) of the Act which provides that the Municipality may by written notice demolish any cess-pool. It is alleged that the accused has a cess-pool which is disapproved of by the Municipality and that in consequence of their disapproval they sent him a notice stating that the cess-pool was a nuisance and that, therefore, within seven days from receipt of the notice the pipe and the drain of the cess-pool should be removed, and that, if no steps were taken as directed within the times aforesaid, steps would be taken according to law.
4. It is to be observed that the notice is in terms of an alternative. It provides that within seven days the causes of offence should be removed and that if no steps were taken within that time steps would be taken according to law. There is no direct requisition upon the addressee to remove the causes of offence. Possibly the notice was couched in those terms on account of the curious wording of Section 107(2), under which it purported to be issued, for, that section does not, like Section 106(3), provide that the Municipality may by written notice require the owner or occupier to do a certain thing but it provides that the Municipality may by written notice do the thing themselves.
5. It is quite possible that there may be, as is contended on behalf of the Municipality, some omission such as the words 'require the owner or occupier to 'but it is not for us to read words into the Act which are not there. It is also possible that instead of the word 'by' the word 'on'should be read. Then the section would be 'the Municipality may on written notice demolish or close any cess-pool.' However that may be, there is no power given to the Municipality to lawfully direct an owner or occupier to demolish or close a cess-pool himself, and, therefore, there has been no disobedience of any lawful direction.
6. We, therefore, set aside the conviction and direct that the fine, if paid, be refunded.