1. These are two references made by the Second Additional Sessions Judge, Poona, in a case arising under the Bombay Provincial Municipal Corporations Act, 1949. As the question raised is of some importance, it would be necessary to mention some relevant facts.
2. A house in Poona, bearing No. 78, Budhwar Peth, belongs to one Vishwas Shamburao Datar. A portion of the house is in the occupation of his sister, Mrs. Kusum Krishna- rao Joglekar and another room in the remaining portion of the house has been let out to one B.D. Inamdar. It appears that there is a common bath room in that house which is meant for the use of the tenants and there is also a separate bath room which is available for use in respect of the block occupied by Mrs. Joglekar. It seems that Inamdar was allowed the use of that bath room for some time but in course of time he was prevented from using the same upon the ground that by keeping it open Mrs. Joglekar had lost some of her pots in the bath room. Accordingly, Mrs. Joglekar locked the bath room and prevented the Inamdar family from using the same.
3. Inamdar accordingly complained to the Poona Municipal Corporation and acting upon that complaint the Corporation prosecuted Datar and Mrs. Joglekar under Section 186(1)(a) and Section 186(2) read with Section 392 of the Bombay Provincial Municipal Corporations Act, 1949.
4. The accused denied that they had committed any offence and contended that Inamdar had no right to use the bath room because it was only as a matter of courtesy that the Inamdar family was allowed the use of the bath room for some time. It was admitted that Mrs. Joglekar had locked the bath room and disallowed its use to Inamdar, but her contention was that she had every right to do so.
5. Now, the learned trial Magistrate convicted Datar, who was accused No. 1, and also convicted Mrs. Joglekar, who was accused No. 2, and sentenced them respectively to a fine of Re. 1 and Rs. 10 under Section 126(1)(a) read with Section 392.
6. The matter was then taken before the Sessions Court, Poona, and the learned Additional Sessions Judge has made this reference asking that the order of convictions and the sentences passed upon the accused should be set aside.
7. Upon this reference, the learned Government Pleader has supported the reference. The learned advocate for the accused has also supported the reference. But Mr. Tarkunde appearing for the complainant has opposed the reference and his contention is that the language of Section 186(1)(a) is wide enough to include the case of an obstruction caused to an individual. Now, Section 186(1)(a), so far as material, provides that:
No person, shall-(a) in contravention of any of the provisions of this Act or rules or by-laws or of any notice issued, or direction given under this Act or without the 'written permission of the Commissioner,...obstruct, stop up,...or change, any drain, ventilation-shaft or pipe, cess-pool, water closet, privy, latrine or urinal or bathing or washing place....
Mr. Tarkunde says that although in this case the obstruction was not in respect of the bath room as such, the obstruction caused to the Inamdar family is an obstruction within Section 186(1)(a). In my opinion, this contention is not well founded. The obstruction or stoppage or change contemplated by Section 186(1)(a) is not in respect of an obstruction caused to an individual because what happened in this case was that Inamdar was prevented from making use of the bath room. There was no obstruction as such to the bathing place and the view which I am taking is supported by a decision of this Court in M.G. Gawade v. State. (1954) Criminal Revision Application No. 799 of 1954, decided by Gajendragadkar J., On September 3, 1954 (Unrep.). That was a case which arose under Section 258 of the Bombay Municipal Corporation Act. But the language of the two enactments is similar and the same construction must, therefore, be applied to both the enactments. In my view, therefore, the reference is justified.
8. The result is that both the references will be accepted, and the order of convictions and the sentences passed upon accused No. 1 and accused No. 2 will be set aside and the fine, if paid, shall be refunded to the accused.