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The Municipal Corporation of Greater Bombay Vs. the State of Maharashtra - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai High Court
Decided On
Case NumberCriminal Revision Application No. 641 of 1966
Judge
Reported in(1967)69BOMLR649
AppellantThe Municipal Corporation of Greater Bombay
RespondentThe State of Maharashtra
Excerpt:
.....one year within corporation limits sometime prior to reception order.;under section 62-e of the bombay municipal corporation act, 1888, the municipal corporation is liable for the maintenance charges of lunatics who have been residing within the corporation limits for at least one year immediately prior to the reception order. the municipal corporation cannot be held liable for such charges merely because sometime in the past they happened to reside for one year within the corporation limits, but had not resided within such limits for the prescribed period immediately before the date of the reception order. - section 3: [s.b. mhase, d.s. bhosale & a.s. oka, jj] offences of atrocities - complaint under held, merely because the caste of the accused is not mentioned in the fir stating..........bombay municipal corporation it was enough to establish that the lunatic resided in bombay for one year prior to the reception order, but this period of one year need not necessarily be immediately preceding the reception order. in view of this conclusion, he confirmed the order passed by the learned magistrate and dismissed the revision application,2. mr. bhandare, who appears for the bombay municipal corporation, submits that although there is some distinction in the wording of the two sections mentioned above, the object with which these two provisions are enacted is the same. mr. bhandare submits-in my opinion rightly-that the object in enacting such a provision is that the muncipal corporation should be made liable for the maintenance charges of lunatics who have been residing.....
Judgment:

Chitale, J.

1. The facts giving rise to this revision application are: one Tarabai Tukaram Kumbhar was admitted to the Central Mental Hospital at Poona en July 1, 1964. Admittedly her husband's annual income is Rs. 1,416. It is also not disputed that if the income of the lunatic or his or her guardian is less than Rs. 2,160 per year, the liability to maintain the lunatic falls either on the Municipal Corporation or on the State Government. The facts found, which are not disputed before me, are that the lunatic's husband resides, in Bombay and is employed in Bombay. His wife-the lunatic-resided with him from June 1958 to December 1959. Thereafter she resided either at Shewari which is her husband's village, or at Saswad which is her father's place. After passing the reception order, the Judicial Magistrate, First Class, Poona, issued notice to the Bombay Municipal Corporation asking it to produce evidence with regard to the income of the lunatic and her husband. The Bombay Municipal Corporation conceded that the annual income of the lunatic's husband was Rs. 1,416, the lunatic herself having no income of her own. On receipt of this information, the learned Magistrate held that the Bombay Municipal Corporation was liable to pay the maintenance charges of the lunatic. Against this order, the Bombay Municipal Corporation preferred a revision application to the Sessions Court, Poona. The learned Additional Sessions Judge, who heard the revision application, compared the wording of Section 62-E of the Bombay Municipal Corporation Act with that of Section 65 of the Bombay Provincial Municipal Corporations Act and came to the conclusion that under Section 62-E of the Bombay Municipal Corporation Act in order to fasten the liability on the Bombay Municipal Corporation it was enough to establish that the lunatic resided in Bombay for one year prior to the reception order, but this period of one year need not necessarily be immediately preceding the reception order. In view of this conclusion, he confirmed the order passed by the learned Magistrate and dismissed the revision application,

2. Mr. Bhandare, who appears for the Bombay Municipal Corporation, submits that although there is some distinction in the wording of the two sections mentioned above, the object with which these two provisions are enacted is the same. Mr. Bhandare submits-in my opinion rightly-that the object in enacting such a provision is that the Muncipal Corporation should be made liable for the maintenance charges of lunatics who have been residing within the Corporation limits for at least one year immediately prior to the reception order. In my opinion, it would be wholly unreasonable to hold the Municipal Corporation liable for such charges merely because at some time prior to the reception order-although it may be several years ago-the lunatic happened to reside for one year within the Corporation limits, even though the lunatic was not residing within the Corporation limits-on the date of the reception order or even for several years prior to that date. The Legislature could not possibly intend to make the Municipal Corporation liable for the maintenance charges of non-resident lunatics merely because some time in the past, howsoever distant it may be, they happened to reside for one year within the Corporation limits. In any case, there is nothing in the wording of Section 62-B of the Bombay Municipal Corporation Act to indicate any such intention on -the part of the Legislature.

3. Mr. Gambhirwala for the State submits that the Legislature has deliberately made a distinction in the wording of the two sections, hence the view taken by the Courts below is correct. I am unable to accept this submission. There seems to be no logical reason why the particular provision for the Bombay Municipal Corporation should be different from that for the other Corporations outside Bombay. I think Section 65 of the Bombay Provincial Municipal Corporations Act, which is a subsequent piece of legislation, merely clarified what was intended even by Section 62-E of the Bombay Municipal Corporation Act, an earlier piece of legislation. In the absence of anything definite in the wording of the two enactments to indicate that a distinction in the two provisions was intended, it would be wrong to put upon Section 62-E of the Bombay Municipal Corporation Act a construction which would lead to a wholly unreasonable result, as indicated above. In my opinion, the view taken by the learned Additional Sessions Judge is wrong.

4. It is further urged that the ordinary residence of a wife must be presumed to be that of her husband, unless there is either judicial separation or divorce. That would be so provided there is no definite evidence to rebut such a presumption. There are cases in which husband and wife reside separately even in the absence of judicial separation or divorce for a variety of reasons. In the present case, it is unnecessary to raise such a presumption and consider whether it is rebutted. Application was made to the Judicial Magistrate, First Class, Poona, for getting a reception order on the footing that the lunatic was ordinarily a resident of Shewari or Saswad. In view of this allegation on which the reception order was passed and which is not effectively challenged by the State, it cannot be said that the lunatic was ordinarily resident of Bombay for one year immediately prior to the reception order. In any case, it is not disputed that in fact ever since December 1959, the lunatic has been residing at Shewari or Saswad, while her husband has been residing in Bombay. In the absence of any positive evidence to show that the lunatic's husband had kept her i.e. the lunatic temporarily at Saswad or Shewari, it cannot be held that the lunatic was ordinarily resident of Bombay for one year immediately prior to the reception order.

5. For reasons indicated above, I make the rule absolute, set aside the order holding the Bombay Municipal Corporation liable for the maintenance charges of the lunatic and hold that the State Government shall be liable* to pay the same, as provided by Section 86 of the Indian Lunacy Act.


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