Debabrata Mookerjee, J.
1. This appeal by special leave is brought by the Corporation of Calcutta from an order of acquittal made by a Municipal Magistrate on the 4th June, 1956 under Section 537/271 of the Calcutta Municipal Act. The respondent was alleged to have been the owner of a private market at 70, Benlapukur Road where he used or allowed to be used unfiltered water without the written permission of the Commissioner of the Corporation of Calcutta. The case was that the owners of the stalls in the market used the unfiltered water for washing the articles to be sold in the market, and for cleansing the alleys and passages of the market.
2. The defence was that the notice that had been served upon the owner under Section 560 was not a good and proper notice and that being so, the respondent could not be convicted of the charge brought against him. The learned Magistrate found substance in this contention put forward on the respondent's behalf.
3. Section 271 provides that unfiltered water may be used free of charge for flushing privies and urinals on private premises connected with sewers, for flushing drains on private premises, for cleansing garages, stables, cattle-sheds and sheds occupied by animals which are not kept for profit or hire and for washing vehicles or animals kept therein which are not kept for profit or hire. Sub-section (3) of the section forbids the use of unfiltered water for other purposes without the written permission from the Commissioner in that behalf. The Corporation's case was that there was no written permission in this case. No permission was applied for and none was given.
4. The gravamen of the offence against the respondent was that he had used or permitted use of unfiltered water for a purpose other than those mentioned in Clauses (1) and (2) of the section without the written permission of the Commissioner in that behalf. It is not the case of the respondent that written permission was asked for and obtained; but the learned Magistrate seems to have entirely misconceived the position in thinking that the notice with which the respondent had been served was bad and therefore the respondent was entitled to an acquittal. I am afraid the learned Magistrate misdirected himself. Section 271 of the Calcutta Municipal Act provides for a prosecution under Section 537 where service of notice is not a previous or preliminary requirement. The table attached to Section 537 shows that for prosecution in certain cases mentioned in the table, notice is required to be served as a prerequisite and it is the failure to comply with the requisition that constitutes the offence. Section 271 is not one of those sections.
5. On behalf of the respondent it has been contended that the notice, such as it was actually issued by the Corporation was a bad notice. We propose to say nothing about the notice inasmuch as for a prosecution under Section 271 service of previous notice is not necessary. If the Corporation went put of their way to issue a notice that would not have the effect of changing the law. The clear words of Section 271 forbid use of unfiltered water for any purpose other than the purposes mentioned in Sub-sections (1) and (2) of the section except with the written permission of the Commissioner. That is the offence with which the respondent was charged. It appears to us that the learned Magistrate misconceived the position and we think that it would be right and proper to send the case back for a new trial to be had by a senior Municipal Magistrate. We direct accordingly.
6. The appeal is accordingly allowed.
7. I agree.