1. In this case the petitioner is the owner of a bustee known as No. 6, Creek Lane. He has been convicted and sentenced under Section 574 read with Section 108 of the Calcutta Municipal Act in respect of his non-compliance with the requirements of a notice served upon him. on the 3rd of January 1916 under the provisions of Section 408.
2. The notice direoted him, inter alia, to construct a certain portion of a road or passage marked C.C. in the standard plan and an underlying 6 inches sewer, also to extend the unfiltered water-supply throughout the bustee, to construct cement surface drains, to build a connected latrine and thereafter to remove two privies.
3. It is admitted in the affidavit that has been filed on behalf of the Corporation that on receipt of a certain sum of money and of an undertaking from one Sital Chandra Banerjee [the owner of the adjoining bustee No. 6 (1)] and of a further undertaking from the petitioner that he will pay the compensation awarded to tenants in respect of the removal of a certain hat, the Corporation has agreed to acquire the necessary land, to construct the road C.C., lay the 6 inches sewer, and an unfiltered water main, and generally do all the work connected with the road or passage C.C.
4. It is also admitted that up to date nothing in this connection has yet been done.
5. Now the notice served upon the petitioner required him to construct his surface drains as indicated in the plan, that is to say, as falling into the sewer underlying C.C. That not having been yet brought into existence by the Corporation, it is obviously impossible for the petitioner to comply with the requisition as regards surface drains.
6. For connected privies a connection both with a sewer and with an unfiltered water main is necessary. It appears that there is a sewered drain to the east of the bustee No. 6, but until the main has been laid by the Corporation along C.C., unfiltered water can be obtained only from the Sankaritolla Lane, say 115 feet from the site of the proposed latrine or from the eastern extremity of C.C. at a distance of some 90 feet.
7. Now when the main is laid along C.C., the distance of the latrine from this main will be about 40 feet only and the contention of the petitioner is that he should not be required to construct the connected latrine until the main along C.C. has been laid. But there is no such proviso in the notice, there is also no physical impossibility, and we cannot say that it is unreasonable on the part of the Corporation to insist on the abatement without further delay of the nuisance created by the two existing privies.
8. We may now briefly notice the contentions in law advanced by the petitioner.
9. It appears that in the first instance the notice under Section 408 was served on the 11th March 1915, and that on receipt of this notice the petitioner on the 22nd May 1915 served on the Corporation a notice under Section 419 intimating that he proposed to remove the land from the category of bustee land. The six months referred to in Sub-section (3) of that section having expired, the present notice was served on the 3rd January 1916, the period allowed being three months. On this, the petitioner on the 10th of March served a second notice under Section 419, and on the 20th March took certain objections under Section 598. At the hearing of these objections the period of three months was extended to six months. On the 27th of July the Corporation applied for a summons, but when it was eventually discovered that the period of the notice was therein erroneously stated to be three months the Magistrate declined to take action upon it, and the application on which the conviction has ensued was made on the 31st July. On these facts the petitioner contends that under Section 419 (3) he should have been allowed a second period of six months from the 10th of March, that the extended, period of six months should be held to run from the 20th of March and not from the 3rd of January, and that the Magistrate's action on the application of the 27th July was a bar to this prosecution. He further contends that by reason of the negotiations and arrangements regarding the road C.C. and the hut standing on the petitioner's land, it should be held that the requirements of the notice in respect of the connected latrine and the privies became unenforceable. In our opinion there is no substance in any of these contentions.
10. We, therefore, affirm the conviction but having regard to the facts set out in the earlier part of this judgment, we reduce the fine from Rs. 20 to Rs. 10. The excess over Rs. 10, if paid, will be refunded.