M.C. Ghose, J.
1. In this case petitioner Lakshmi Narain Auddy of Joraghat, Chinsurah, has been convicted Under Section 76(b), Bengal Embankment Act 2 of 1882, and sentenced to a fine of Rs. 25, in default, to imprisonment for one month. He made a petition Under Section 435 to the Sessions Judge and the Sessions Judge has sent a letter of reference recommending that the conviction be sat aside on the ground that the trying Magistrate was wrong to hold that the river Ganges came within the prohibited area notified by the Government in its notification No. 28-I of 5th September 1929. Mr. N. K. Basu has appeared in support of the reference.
2. The grounds taken by Mr. Basu on behalf of the petitioner are (1) as stated by the Sessions Judge, that the notification of 5th September 1929 does not apply to the river Ganges at Hooghli; (2) that the conviction is wrong inasmuch as Section 76 does not apply to this part of the river having regard to the provisions of Section 91, Bengal Embankment Act. That section provides:
Nothing in this Act shall apply to any embankment land or water course which is under the operation of any of the following Acts: the Bengal Drainage Act 1880, the Bengal Irrigation Act 1876 and the Bengal Act 5 of 1864.
3. The facts in short are that in 1930 the petitioner who has a house on the bank of the river Ganges at Hooghli obtained from the Khas Mahal Department a piece of land on the foreshore. The khas mehal offices demarcated the boundary down the slope of the bank up to the point which was leased by the Government to the petitioner and according to the boundary pointed out by the khas mehal officer the petitioner's peon put down small posts to demarcate the boundary. Afterwards a fencing was erected with high posts at the place and when the river got swollen up in the rainy season the fencing became completely covered with water. At one time when the river was swollen the fencing was as much as 12 feet under water and thereby obstructed navigation. The Collector issued a notice to him to remove the fencing and on his refusal to do so the present prosecution was instituted in June 1932. The original conviction dated 15th December 1932 was set aside by this Court and a re-trial was ordered whereupon the present conviction was obtained on 7th August 1933.
4. The facts which appear clear are that the fencing in question is in the portion of the river between the lowest low water line and the high water line and that it actually caused obstruction to navigation at the place. The question is whether on the grounds urged the conviction can be set aside. The learned advocate Mr. Basu urges that the notification of 5th September 1929 does not apply to the river Ganges at Hooghli, The relevant portion of the notification refers to obstruction or diversion of any water course within the tracts. The learned Sessions Judge thinks that the river itself does not come within the notification inasmuch as the obstruction of the mid-stream between the two lowest low water lines is not prohibited. The reply is that the portion of the river between the two lowest low water lines comes under the Canal Act. It is the portion between the highest water line and the lowest water line which is under the protection of the Embankment Act. There is no question that the term 'water-course' includes the river Ganges at Hooghli. The definition of 'water-course' in the Embankment Act includes a line of drainage, weir, culvert, pipe or other channel, whether natural or artificial, for the passage of water. It is to be noted that the definition is not exhaustive. It only mentions certain items by the word 'includes.' In ordinary language every river is a water-course.
5. It has been strenuously urged that the conviction is illegal in view of Section 91, Bengal Embankment Act. It was pointed out that the Bengal Irrigation Act, 1876, was applied by notification to the District of Hooghli. It is urged therefore that Section 91, Bengal Embankment Act, cannot apply to the river Ganges at Hooghli but that the Irrigation Act must apply and that the conviction under the Bengal Embankment Act is therefore illegal. There is no doubt that if the river Ganges at Hooghli comes within the operation of the Bengal Irrigation Act it cannot, at the same time, coma within the operation of the Bengal Embankment Act having regard to the provisions of Section 91, Bengal Embankment Act. But on the perusal of the relevant sections of the Bengal Irrigation Act it appears that the river Ganges at Hooghli does not come under the Bengal Irrigation Act. That Act makes provision for the construction and maintenance of canals for the supply of water therefrom and unless a river is canalised or a canal is dug from it or unless it is notified Under Section 6 of the Act a river does not come within the operation of the Bengal Irrigation Act. It therefore appears that the river Ganges at Hooghli does not come under the Bengal Irrigation Act. Nor does the area where the obstruction is made come within the operation of the Canal Act.
6. The last argument made by Mr. Basu was that the prosecution did not prove that the petitioner acted without the previous permission of the Collector. This point appears clear from the evidence of the Deputy Collector who made the complaint that, a notice was sent to the petitioner to remove the offending fencing, but he declined to do so and thereafter the Collector directed his prosecution. In the result this reference is rejected, and the conviction and sentence are upheld.