1. This Rule was issued on the District Magistrate of Noakhali to show cause why the conviction of the petitioners for having obstructed a channel should not be set aside on the ground that there is nothing to show that the channel in question is in the control and under the administration of the District Board.
2. No one appears to show cause; but the District Magistrate has submitted a statement by the trying Magistrate in which it is pointed out, that there is on the record the evidence of the Overseer to the effect that the District Board has the channel on its books and has spent some money on its upkeep. We doubt whether that is sufficient to bring the channel, which is admittedly the private property of the petitioners landlords, under the control and administration of the District Board for the purposes of the Bengal Local Self-Government Act of 1885.
3. Under Section 76 of that Act, a District Board may agree with the person in whom the property in any channel is vested to take over the property therein, and after such agreement may declare, by notice in writing put up therein or near thereto, that such channel has been transferred to the District Board. Thereupon the property in the channel becomes tested in the District Board and it has in future to be repaired and maintained out of the District Fund. In this way only, so far as we can see, can a private channel be brought under the control and administration of a District Board under the Act.
4. Now, there is nothing on the record before us to show that there has been any such arrangement between the owners of this channel and the District Board, and it seems to us that, in these circumstances, it is scarcely possible toy maintain that the petitioners have by erecting weirs and fishing in the channel with the permission of the owners committed an offence against the District Board bye-laws.
5. The Rule must, therefore, be made absolute and the fines, if paid will be refunded.