Skip to content


Goverdhan Sinha and anr. Vs. the Queen-empress - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata
Decided On
Judge
Reported in(1885)ILR11Cal570
AppellantGoverdhan Sinha and anr.
RespondentThe Queen-empress
Cases ReferredCalcutta Gazette Goverdhan Smha v. The Queen
Excerpt:
embankment - addition to existing embankment--notification, publication of, under bengal embankment act--bengal act ii of 1882 (bengal embankment act), sections 6, 76, clause (b) and 80. - .....the bengal embankment act, 1882. the facts proved against the petitioners are, that they have repaired existing embankments so as to make them higher, and probably broader, than they were before, and it was also proved that they did these acts without taking the previous permission of the collector as required by clause (6) of section 76. it is further found by the magistrate that under section 6 of the act, the lieutenant-governor, by a notification, declared that the tracts within which these embankments exist, are tracts within which the provisions of clause (b) of section 76 shall take effect. it is stated in the affidavit, and not contradicted in any way, that no proclamation and general notice of this declaration under section 6 was published in the manner prescribed in.....
Judgment:

Mitter and Norris, JJ.

1. In these two cases the petitioners before us have been convicted under Section 76,* Clause (b) of Beng. Act II of 1882, called the Bengal Embankment Act, 1882. The facts proved against the petitioners are, that they have repaired existing embankments so as to make them higher, and probably broader, than they were before, and it was also proved that they did these acts without taking the previous permission of the Collector as required by Clause (6) of Section 76. It is further found by the Magistrate that under Section 6 of the Act, the Lieutenant-Governor, by a notification, declared that the tracts within which these embankments exist, are tracts within which the provisions of Clause (b) of Section 76 shall take effect. It is stated in the affidavit, and not contradicted in any way, that no proclamation and general notice of this declaration under Section 6 was published in the manner prescribed in Section 80 of the Act.

2. There is no finding in the Magistrate's judgment that any such proclamation and general notice were published in accordance with Section 80.

3. Two points have been taken before us. In the first place, it is contended that the Magistrate has erred in construing the words, 'shall add to any existing embankment' in Clause {b) of Section 76, as including a repair of the kind found in this case. It is contended that these words mean an addition to an existing embankment in the sense that such embankment is extended in its length.

4. The second objection is that, supposing the construction put upon the section in question by the Magistrate is correct, still, the conviction is bad, because no proclamation and general notice of the fact that Clause (b) of Section 76 would take effect in that part of the country where these embankments exist had been published in accordance with Section 80 of the Act. We are of opinion that the conviction must be set aside upon both these grounds. We agree with the learned Counsel that the words, 'shall add to existing embankments,' are not intended to mean any repair to an existing embankment, even if the effect of such repair be to make the embankment higher or broader. These words only mean an extension in the length of an existing embankment. If the construction which has been put by the Magistrate were correct, it would be almost impossible to carry out the provisions of the Act. Certainly, it cannot be contended that any ordinary repair to an existing embankment would be included within the words, 'shall add to an existing embankment,' and if any ordinary repair is not included, how is the line of demarcation to be drawn?

5. Then, again, these words, if construed in the way in which the Magistrate has construed them, would be meaningless in applying them to the provisions of Section 79, which says : 'Whenever any person is convicted of an offence under either of the three last preceding sections, the convicting Magistrate may order that he shall remove the embankment or obstruction, or repair the damage, in respect of which the conviction is held, within a period to be fixed in such order.' If throwing additional earth on an embankment means an addition to an existing embankment within the meaning of Clause (6), it would be almost impossible for the convicting Magistrate to define the quantity of earth to be removed from the embankment, in order to carry out the provisions of Section 79*. We are, therefore, of opinion that the construction put upon the words of Clause (b) of Section 76 is not correct, and that the construction for which the learned Counsel contends is the right one.

6. Then, as regards the other point, we are of opinion that under Section 80 it was necessary to publish the general notice mentioned in Section 6 of the Act in the way prescribed by Section 80. In this view we are supported by an unreported decision of this Court in Criminal Motion No. 297 of 1884, dated 12th September 1884. The words, 'every proclamation and general notice by this Act required to be issued or given,' used in Section 80, are sufficiently wide to include the notice referred to in Section 6.

7. Upon both these grounds, therefore, we are of opinion that the convictions in these two cases are wrong. We accordingly set aside the convictions and sentences in these two cases. The fines, if realized, will be refunded.

*[Penalty for unauthorized interference with embankments or drainage.

Section 76 (a)-Every person who, in any of the territories to which this Act extends, without the previous permission of the Collector, shall erect, or cause or wilfully permit to be erected, any new embankment, or shall add to any existing embankment, or shall obstruct or divert, or cause or wilfully permit to be obstructed or diverted, any watercourse, if such act is likely to interfere with, counteract or impede any public embankment or any public watercourse;

Penalty for unauthorized interference with embankments or drainage in prohibited tract.

(b) every person who, within the limits of the tract included in any prohibitory notification under Section 6, without the previous permission of the Collector, shall erect or cause or wilfully permit to be erected, any new embankment, or shall add to any existing embankment or shall obstruct or divert, or cause or watercourse; willfully permit to be obstructed or diverted, anyand.

Penalty for abetment of such acts.

(c) every Person wn0 shall abet any such act as is mentioned in Clauses (a) and (b), shall be liable, on conviction, to a fine not exceeding five hundred rupees, or in default of payment to imprisonment of either description for a period not exceeding six months.

The words 'shall add to any existing embankment' in Clause (b), Section 76 of Bengal Act II of 1882, are not intended to mean any repair of an existing embankment, even if the effect of such repair be to make the embankment higher or broader, but only mean an extension in the length of an existing embankment. The notification referred to in Section 6 of the Act must be published in the manner provided by Section 80, and it is not sufficient for such notification merely to be published in the Calcutta Gazette Goverdhan Smha v. The Queen-Empress I.L.R. 11 Cal. 570.

* [Obstructions to be removed and damage repaired.

Section 79: Whenever any person is convicted of an offence under either of the three last preceding sections, the convicting Magistrate may order that he shall remove the embankment or obstruction, or repair the damage, in respect of which the conviction is held, within a period to be fixed in such order. If such person neglects or refuses to obey such order within the fixed period, the engineer may remove such embankment or obstruction, or repair such damage; and the cost of such removal or repair shall be levied from such person in addition to any other penalty in the manner provided in Sections 386, 387 and 389 of the Code of Criminal Procedure, 1882.]


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //