Lallubhai Shah, A.C.J.
1. The only question in this application is whether the notice given by the Municipality under Section 107 (1) of Bombay Act III of 1901 is valid. By that notice the petitioner was called upon to do two things: first to put up new sinks and to arrange to have water therein discharged into the drainagecess-pool with reference to the shops of the ground-floor, and secondly as regards the two sinks on the first story he was called upon to repair them so as to discharge waste water into the diainage cess-pool. The learned Magistiate has held that the notice is invalid, so far as it reliesto the fiist part, because the act which the petitioner is required to do falls, properly undersection 101, Sub-section (1), and according to the bye-laws of the Municipality a legal notice under Section 101, Sub-section (1), could be given only by the Chief Officer, and not by the Health Officer of the Municipality. The notice in question has been given by the Health Officer. He, therefore, held the notice to be invalid as regards that part of it. As regards the second part which relates to the two sinks A and B on the second floor the learned Magistrate was of opinion that the notice was valid and properly given under Section 107, Sub-section (1).
2. It has been argued before us by the petitioner in person that even as regards that part, it properly falls under Section 101, Sub-section (1), and if that is so, it is clear that the whole notice is invalid because it has not been given by an Officer who is authorised according to law to give such notice. In determining this question we must look to the substance and not to the mere form of the notice. In form it requires the petitioner, to repair the two sinks so as to discharge the waste water into the drainage cess-pool. The meaning of it, however, is made clear by the learned Magistrate in his judgment. The petitioner is required to connect the two sinks with the gully trap. It may be a small matter, but it requires him to do something which appropriately falls, in my opinion, under Section 101, Sub-section (1). In substance this part of the house is not drained to the satisfaction of the Municipality, and therefore, he is required to supplement the diains to as to discharge sullied water into the main drain of the Municipality through the gully trap. It is difficult to lay down with precision the scope of Section 107, Sub-section (1), and it may not be always easy to draw the dividing line between orders falling under Section 101, Sub-section (1), and those falling under Section 107, Sub-section (1). But taking this particular notice as a whole and having regard to the fact that one part of it distinctly falls under Section 101, Sub-section (1) it seems to me that the proper construction of this notice is that the act which the petitioner is called upon to do with reference to the two sinks A and B on the second floor appropriately falls under Section 101, Sub-section (1). The notice is, therefore, wholly bad. It would be open to the Municipality to get the, petitioner to do what it wants him to do by a properly framed notice to be given by an officer who has the power to give such notice. We might have overlooked in this case the reference to Section 107 and treated the notice as given under Section 101, Sub-section (1), if it had been given by an officer authorised by law to give notice under that section. But the difficulty in the wray of the Municipality is that it is given by an officer who has not the power under the rules to give such a notice. We have come to the conclusion, not without regret, that the notice which was given so far back as January 1922 must be held to be invalid.
3. We make the Rule absolute, set aside the conviction and sentence, and direct the fine, if paid, to be refunded.
4. Kajiji, J.--I agree.