1. The Municipal Board permitted one Gangu to construct a drain in Mohalla Kishoripura within the Municipal limits of Bindraban. While the drain was being constructed by a contractor of the Municipality on the application of Gangu, Gangaram and Mt. Koka prevented the contractor from working on the ground that the land which was being dug up for the construction of the drain belonged to them. These two persons and one Chhitaria were prosecuted under Section 295 for obstructing a person employed in contract with the Board in the performance of his duty. They were convicted by a Magistrate and the District Magistrate has made this reference for the setting aside of the conviction on the ground that the contract-was not given according to the Act. It was argued here on behalf of the Municipality that it is not the business of the Court to enquire into the antecedents of the contract. This argument is incorrect. It is definitely stated in Section 295 that the obstruction should be of a person employed under contract with the Board under this Act. The words 'under this Act' have the significance that the Municipal Board must have acted according to directions given in the Act. No contract arbitrarily given by the Municipality in contravention of the provisions of the Act can render obstruction thereof liable to penalty.
2. The next question is whether the contract was given under the Act. It was argued on behalf of the Municipality that the contract was given under Section 192 and that the provisions of Section 193 did not apply. This argument also is incorrect. It is definitely stated in para. 2 of Section 192 that if a person is obstructed in constructing a drain over the land of another that person should take action under Section 193 of the Act. Gangu was directed to construct a drainage under the land of Ganga Ram and it was his duty to take action under Section 193. No such action was taken. No notice was issued to Ganga Ram. The contract given by the Municipality therefore was contrary to the terms of the Act.
3. Finally, it was questioned whether Ganga Ram was the owner of the lane through which the drainage was to be constructed. There is a report of the Secretary that the lane was not of the Municipality but the private lane of some persons who objected to the construction of the drain. Having regard to this report the presumption is that the lane by the side of which Ganga Ram's house is situated as is shown in the plan on the record belongs to Ganga Ram.
4. The reference is accepted. The conviction and sentence of Chhitaria, Ganga Ram and Mt. Koka are set aside, and it is directed that the fine if any recovered shall be refunded.