Y.D. Desai, J.
1. This reference made by the learned Sessions Judge at Jamnagar arises out of an order passed by the Judicial Magistrate, First Class, Jamnagar, in Summary Case No. 1000/69 convicting one Anandlal Dosabhai for having committed offences Under Sections 177 and 193 of the Gujarat Municipalities Act, 19(53, hereinafter referred to as 'the Act', and sentencing him to pay a fine of Rs. 15/- under each count read with Section 227 of the Act. In default of payment of fine, Anandlal was to undergo rigorous imprisonment for five days.
2. Anandlal was the owner of house, bearing S. No. 829 in Ward No. 15, Digvijay Sheri No. 50, Jamnagar, and one Mohanlal Madhavji Vithlani was his tenant staying on the upper floor of the said house. As it was found by the Municipal Inspector that dirty water was thrown on the street which stagnated and created a public nuisance, a notice dated 16th October, 1968 was issued against the owner Anandlal directing that drain pipes be fixed on the two spouts from which the dirty water was being thrown on the street. He was also charged with having caused or allowed dirty water to flow spouts and stagnate on the public street causing a public nuisance. The prosecutions were filed on the ground that the owner as well as the tenant had failed to carry out the directions contained in the notice issued.
3. The contention of Anandlal was that he had purchased the pipes and tried to fix them by engaging a mason, but tenant Mohanlal Madhavji prevented him from entering the premises in his possession and from fixing the pipes. Therefore, he had not committed any offence Under Section 177 of the Act- With respect to charge Under Section 193 of the Act, he contended that he had not 'allowed' the water to be discharged from the spouts as he was not in the control of the premises occupied by the tenant and he was unable to prevent him from discharging dirty water from the spouts and therefore he was not liable to be convicted for the alleged offences. The learned Magistrate rejected the contentions of Anandlal and convicted him of both the charges.
4. Anandlal filed Criminal Revision Application No. 23 of 1970 in the Court of the Sessions Judge at Jamnagar, who held that Section 231 of the Act provided for the exigency when the occupier of any building or land prevented the owner thereof from carrying into effect any of the provisions of the Act in respect of such building or land and in absence of any notice having been given to the tenant and an application made to the Executive Magistrate as provided in Section 231 of the Act, the petitioner could not be exonerated with regard to the notice Under Section 177 of the Act and confirmed the conviction of Anandlal on that charge.
5. However, with respect to the offence Under Section 193 of the Act he was of the opinion that the petitioner could not have caused or allowed the dirty water from the floor to flow on the street as the tenant was in possession and the upper floor was not in his control. In short, he was of opinion that the petitioner could not be expected to have w allowed the thing to be done which was not in his power to prevent and referred the matter to the High Court recommending setting aside the order of the conviction and sentence passed against Anandlal so far as the offence Under Section 193 of the Act was concerned. Anandlal filed Criminal Revision Application No. 397 of 1970 against the order confirming his conviction for the offence Under Section 177 of Act. By a separate order, I have dismissed that revision application.
Section 193 of the Act provides:
Whoever causes or allows the water of any sink or sewer or any other liquid which is or which is likely to become offensive, or water in such quantity as is likely to remain stagnant, from any building or land under his control, to run, drain or be thrown or put upon any street or open space, or to soak through any external wall or causes or allows any offensive matter from any sewer or privy to run, drain or be thrown into a surface drain in any street without the permission in writing of the chief officer or who fails to comply with any condition prescribed in such permission, shall be punished with fine which may extend to one hundred rupees.
The case of the owner-accused is that the upper floor is in occupation of his tenant Mohanlal and he was illegally using these spouts fixed for drainage of rain water falling in the open gallery for discharging dirty water and there-lore he is the person, if any, who has allowed the dirty water to escape from these spouts. A person cannot be said to have allowed a thing to be done, which he has not power to prevent. Admittedly, the tenant was in the pos- session of the premises from where the dirty water was allowed to flow from the water spouts, and the landlord could not control or prevent what the tenant was doing. In short, he was not in control of the premises from which dirty water was being discharged. The prosecution, before it can succeed, must prove that the landlord was in a position to prevent the wrong doing before it can be said that he allowed the discharge of dirty water on street. The word 'allow' in Section 193 must, therefore be applied only to those cases where the person sought to be made liable is in control of the premises and further that he was in a position to prevent the wrong doing sought to be penalised.
6. In the ruling of Ismailbhai v. State, (1960) 62 Bom LR 543 the petitioners were the owners of certain stables which had been let out to tenants who kept milch cattle therein and sold the milk. The owners were prosecuted and convicted Under Section 394(1)(c)(iv) read with Section 471 of the Bombay Municipal Corporation Act, 1888. It was contended that as the animals were not kept by the owners or on their account by the tenants, whom they had no right to evict or stop from what they were doing. It was held that the word 'allow' in Section 394 (1) (c) (iv) must be applied only to those cases where the person sought to be made liable was in a position to prevent the doing of the thing and as the petitioners could not control or prevent what their tenants were doing, the conviction of the accused was not justified. The Calcutta High Court in Nanda Lai v. Corporation of Calcutta : AIR1931Cal337 also holds a similar view. In that case one Pradumna Misser, who was a tenant of the piece of land, accumulated offensive matter thereon and on the landlord being charged with having committed an offence punishable Under Section 478 of the Calcutta Municipal Act. 1889, has held that it was the tenant who had allowed the offensive matter to accumulate on the ground and that a person cannot be said to have allowed a thing a be done which it is not in his power to prevent. Similarly, in Emperor v. Cham paklal : AIR1941Bom156 where the Secretary of the Manekchowk Mills was charged with having allowed water to run upon a street which was likely to become offensive. It was held therein that it was the duty of the prosecution to prove that the Secretary was in control of the mills before he could be convicted of an offence Under Section 159 of the Bombay Municipal Boroughs Act, 1925 and that the Secretary of the mills not being in control of the mills could not be punished. Similar is the view in Emperor v. Dattatraya : AIR1939Bom95 in which a goat was kept on the premises rented to tenant and the owner was served with a notice to discontinue the use of the chawl for keeping the goat, and it way observed in the course of that ruling that 'It is obvious it cannot be in power of the owner to cause the use of the premises for any particular purpose to be discontinued by his tenant. Apart from a special covenant, he would not have authority over his tenant to prescribe manner in which they should use the premises demised and he can only comply with the section by evicting the tenants, which, in many cases, he might not be able to do'.
Mr. Mehta, however, contended that the landlord could have taken recourse to the provisions to Section 231 of the Act for carrying into effect any of the provisions of the Act, and as the necessary assistance available Under Section 231 of the Act had not been taken, it should be held that the landlord had allowed the flow of dirty water, which had proved a nuisance and that by resorting to those measures he could have prevented the discharge of dirty water by his tenant, since the word 'allow' had an extensive meaning which would mean 'permit' or 'not to prevent'. Now, the word 'allow' may tend to suggest that there is a right and capacity to prohibit or prevent. Since that right is not there the doing of a thing cannot be prevented. Relations between the petitioner and his tenant are those which exist between a lessor and a lessee, and as laid down in the ruling in Wilson v. Twamley, (1904) 2 KB 99 referred to in Ismailbhai's case : (1960)62BOMLR543 'the meaning of the words 'do or suffer to be done' is that they must involve the doing of some act or some abstention from action, by the covenant or himself, or by some person standing in the relation of agent to him, a relation which does not exist as between lessor and lessee.' The charge Under Section 193 of the Act relates to acts, complained of prior to the issue of notice. There is nothing to show that after the service of the same the landlord has allowed dirty water to be drained on the public street so as to cause a nuisance. There was, therefore, no question of taking recourse to the provisions of Section 231 of the Act. Before the provisions of Section 231 of the Act can be resorted to, it has first to be shown that landlord allowed the dirty water to flow from the spouts and was in control of the premises from where it was let out, and therefore, for the purposes of the Act it was necessary to take recourse to Section 231 of the Act. Holding as I do that the essential ingredient required to be proved of the premises being in control of the landlord not being proved it cannot be said that he has allowed the water to be drained on the public road; and in that view of the matter, Section 231 of the Act may not have any application. In view of the fact that the relations between the petitioner and Mohanlal being that of a landlord and tenant, the principles relied in the rulings of Linnett v. Commissioner of Metropolitan Police, 1946-1 KB 290 and Allen v. Whitehead. 1930-1 KB 211, which deal with the liability of a principal vis a vis criminal acts of his agent, do not stand to apply.
7. Mr. Mehta, in one breath, contended that the offence Under Section 193 of the Act was an absolute offence where proof of mens rea was not essential, and on the other hand contended that the offence was quasi criminal in nature. Reliance was placed on the decision in Sweet v. Parsley (1969) 2 WLR 470, which was a case in which one Miss Sweet was charged Under Section 5(b) of the Dangerous Drugs Act, 1965, and while interpreting the words 'is concerned in the management of any premises', it was held by the House of Lords that the guilty knowledge of rented premises being used for the purpose of smoking cannabis was required to be proved, and it was held that it was impossible to say that the statute under consideration had either clearly or by implication ruled out mens rea as a constituent part of the guilt, and set aside the conviction. We, have, in the present case, to look more to the question whether the landlord could, in fact, be said to be in control of the premises rented. If he was not, then, apart from the section requiring the proof of mens rea or otherwise, it must be held that the prosecution has failed to prove the necessary ingredient to bring home the charge Under Section 193 of the Act.
8. It has next been contended that the Act is not strictly penal sta- tute, but the penalties provided therein are for the enforcement of its provisions for the general benefit, particularly from the sanitation and health point of view, and therefore, should be liberally construed and a narrow construction of the word 'allow' as was done in Ismailbhai's case (1960) 62 Bom LR 543 could not be put. Mr. Mehta led me through several sections including Sections 182, 183, 192, 196 and 197 of the Act. But, it is unnecessary to go into them for the present purpose, since there is no doubt about the fact the provisions of Chapter VII of the Act have been enacted to prevent nuisances as would prove dangerous to public health. While appreciating this contention for the Municipality that such statute should be so construed as would advance the object of the statute and while holding that the rule of construction of the penal statute is not to be applied in all its rigour to municipal statutes, I fail to see how the purpose and object of the Act can be served by giving the provisions of Section 193 of the Act an extended meaning. As observed in Ismailbhai's case : (1960)62BOMLR543 'Even if the landlord is punished he is powerless to prevent the nuisance. Even in ordinary times, he could not have turned out the tenants without recourse to ordinary law. If he had done so, he would have been liable for trespass criminally and civilly. His difficulties are many more now because of the Rent Acts. To punish him for the conduct of the tenants would be doing injustice and purposeless, since the tenants would continue to do what they were doing. In these circumstances, I would apply the words used only in those cases where the person sought to be made liable is in a position to prevent the doing of the thing. I respectfully adopt the reasoning of the learned Judge.
9. It has also been contended that as the landlord failed to provide for the installation of drain pipes he had allowed the filthy water to be discharged on the street. For the purposes of Section 177 of the Act, only the' landlord could be held liable for not carrying out the directions of the Municipality. With respect to charge Under Section 193 of the Act, the offence is qua the person occupying the premises and for the purposes of proof of charge Under Section 193 of the Act, one cannot mix up with the other and it is only when it is proved that the land-lord was in control of the building or land regarding which the offence alleged Under Section 193 of the Act is committed that it can be held that the landlord has allowed the dirty water to be discharged and not otherwise. It is also argued that the landlord allowed the dirty water to be drained out from the spouts which he could have sealed off from outside without entering the premises or otherwise disturbing the possession of the tenant. But owing to strained relations between the lardlord and the tenant, it would perhaps be doubtful whether the tenant had allowed the petitioner to seal off the spouts or to have allowed and the drain pipes to be so fixed as would effectively drain the water from the premises in possession of the tenant. Perhaps, such a conduct on the part of the landlord may amount to interfering with the rights of the tenant to let off rain water from those spouts, which he was legitimately entitled to drain out from them.
10. Lastly, it has been contended that Under Section 23 of the Bombay Rent Act, it was the duty of the landlord to keep the premises in good and tenantable repairs. If the landlord neglects to do so, some rights arise in the tenant under that section. It is contended that in view of this provision, it could be said that the landlord would be in control of the premises. This provision relied on is intended to reduce the evils of bad housing and to protect tenants from improper conditions of the premises. It only appears to provide for the liability on the landlord rather than anything else.
11. In my opinion, therefore, the prosecution has failed to prove the important ingredient of Section 193 of the Act, namely that it was possible for the landlord to prevent the nuisance committed by the tenant; that in fact he was prevented from doing so, as the defence evidence goes, and adopting the principle laid down in Ismailbhai's case, referred to above, it cannot be said that the landlord allowed the dirty water to flow from the spouts. It is clear that he could not control or prevent what his tenant was doing. In my opinion, therefore, the reference must be accepted and petitioner Anandlal acquitted of the charge Under Section 193 of the Act.
12. Reference is accepted. The conviction of petitioner Anandlal Under Section 193 of the Gujarat Municipalities Act, 1963, passed by the Judicial Magistrate, First Class, Jamnagar, is set aside, and he is acquitted of that charge. Fine in relation to this charge, if paid be refunded to petitioner Anandlal Dosabhai.