P L D 1963 Dacca 728 (PLP)

"194. (1) The Board at a meeting may, by a general order, prohibit in the whole or any part of the Municipality the making of excavations for the purpose of taking earth or stone therefrom, or for the purpose of storing rubbish or offensive matter therein, and the digging of tanks or pits without special permission previously obtained from it. (3) Any person who contravenes an order under sub section (1) shall be liable, for every such offence, to a fine not exceeding twenty‑five rupees." The resolution of the Municipal Board by which the provisions of section 194 were adopted runs as follows: "Resolved that the provisions of section 194 of Assam Act 1, of 1923 (Assam Municipal Act) regarding excavations be brought into force in this Municipality."

7. The learned Additional Sessions Judge thinks that the resolution by which the provisions of section 194 were brought into force did not declare any prohibition. According to him, there must be a specific decision of the Board as to the prohibitions to create an offence under subsection (3) of section 194, I cannot agree with the learned Judge. Once the provisions of section 194 are adopted by a Municipality, the prohibitions mentioned in the section come into force within the A area of that Municipality and no further declaration is necessary in regard to the prohibitions mentioned in the section and the resolution.

8. The learned Advocate appearing in support of the Reference has urged that, as the Municipality did not prove that the resolution was published as required by subsection (2) of section 194, the resolution had no binding effect. This question was not raised at the trial, and being a mixed question of law and fact cannot be gone into now.

9. The second ground urged in making this reference, however, appears to be of substance. Subsection (1) of section 194 speaks of two kinds of prohibitions. The first is "the making of excavations for the purpose of taking earth or stone there from, or for the purpose of storing rubbish or offensive matter therein," and the second is "the digging of tanks or pits". The resolution in question speaks of the provisions of section 194 regarding "excavations" but does not say anything about "digging". It is, therefore, clear that the first kind of prohibition was introduced and not the second. Mr. Sayem who appears for the Munici pality to oppose the Reference however contends that the term "excavations" includes "digging of tanks or pits" also. I cannot agree. In the section both the expressions "excavations" and "digging" have been used, and if the resolution speaks of the first and not the second, it cannot be construed to have meant) both.

10. The reference, therefore, is accepted. The conviction and sentence of Dewan M. H. Obedur Raja Chowdhury under section 194 of the Act are set aside and he is acquitted of the charge under that section.

11. In the revision case, the only point that has been raised is that the drain in question is not a public drain inasmuch as it admittedly runs through same land belonging to the petitioner and the obstruction in question was on his own land. According to section 3, subsection (6), of the Act, "Drain" includes a sewer, a house drain, a drain of any other description, a tunnel, a culvert, a ditch, a channel and any other device for carrying off sullage, sewage, offensive matter, polluted water, rain water, flood‑water or sub‑soil water. Section 55 of the Act provides that all public drains situated within the Municipality shall vest in and belong to the Board and shall be under its direction, management and control. It is contended that the portion of the drain which runs through the land of the petitioner could become the property of the Municipality provided it was taken over as contemplated in section 57 of the Act. Reliance in this connection has been placed on the decision in the case of The Chairman, Howrah Municipality v. Khettra Kristo Mitler (10 C W N 1044). This decision, in my view, instead of supporting the petitioner, goes counter to his contention. To illustrate my point, I would quote a passage from the judgment which is to the following effect: "It is perfectly true that a dedication of land to public purposes need not necessarily be expressed, but may be implied from the conduct of the owner. Where the owner sets apart land for the use of the public and formally declares that such is his intention, or where he conveys land to a Municipality or to trustees to hold for the use of the public, the dedication is an express one. An implied dedication arises by operation of law from the acts of the owner and is really founded upon the principle of estoppel ; it proceeds not upon the principle that a grant has actually been made, but rather on the principle that owner having allowed the public to enjoy the user, for any particular purpose, is estopped from denying the right of the public to the enjoyment of such user." There is positive‑evidence of the existence of the drain for more than 30 years and its maintenance by the Municipality. The trial Court has accepted this evidence and I cannot, therefore, agree with the learned counsel that it is not a public drain. Section 75 contemplates taking over the Municipality of a drain belonging to a private person. A drain which runs through private land but is used for public purposes and maintained by the Municipality is a public drain within the meaning of section 55 of the Act and rule 62 of the Bye‑Laws. The decision in the case of The Chairman of Municipality Commissioners of Howrah v. Hari Das Gupta and others (20 C W N 613), followed the decision reported in 10 C W N 1044. The facts of the case of Nando Lal Neogy v. Bejoy Chandra Chatterjee (22 C W N 599) are distinguishable. In that case the petitioner was convicted under section 217 of the Bengal Municipal Act for encroaching on a public road. The conviction was set aside as the land over which the road was made belonged to him and was used as a road temporarily to go to trenching ground which after sometime was closed. The decision in the case of The Chairman, Howrah, Municipality v. Khettra Kristo Mitter came up for consideration by a Full Bench of the Calcutta High Court, consisting of five Judges, in the case of Nirod Chandra Mukherjee v. Chairman, Kamarhati Municipality (40 C W N 1070). The following two questions were referred for decision of the Full Bench: "(1) Do roads, over which the public have a right of way in a Municipal area, vest in the Municipal Commissioner? (2) Was the case Chairman, Howrah Municipality v. Haridas Gupta correctly decided?" Mukherji, Mitter and Patterson, JJ., answered the question in the following manner "(1) Roads over which the public have a right of way, if they are not private property, vest in the Municipality under section 30 of the Act III of 1884 as amended by Act IV of 1894. (2) Yes, in so far as it is a decision on the question of construction of the aforesaid section." Jack and Ghose, JJ., however answered them thus "(1) Roads over which the public have a right of way in a Municipality vest in the Municipal Commissioners." (2) The case, Chairman, Howrah Municipality v. Haridas Gupta was rightly decided in so far as it held that under section 30 of the Bengal Municipal Act, 1884, as amended by Act IV of 1894, private path‑ways do not vest in the Municipality. But it was wrongly decided in so far as it held (p. 135) that a road within the meaning of section 6, clause (13) of the Act, that is a road over which the public have a right to go" does not vest in the Municipality under section 30 of that Act."

12. The suit out of which the appeal arises in the above case was for declaration of title and for permanent injunction restraining the defendant Municipality from interfering with the possession of the plaintiffs in respect of a strip of land claimed by the Municipality as a part of a road. All the learned Judges unanimously found that, though the road was made over the land of the plaintiffs, they were not entitled to the reliefs asked for in the suit. To concede the right of a private citizen to interfere with the public user of a road or drain on the ground that the land over which it runs belongs to him, will lead to dangerous results. The public or private character of drain, in my view, within the meaning of the Act, will depend upon the answer to the question as to who use it. If it is used by the public in general a section of it the drain is public but if it is used by the owners thereof exclusively, it is a private drain.

13. The Rule, therefore, is discharged. The conviction and sentence of the petitioner under rule 62 of the Bye‑Laws are upheld.

14. The petitioner will now pay the fine, or, in default, undergo the terms of imprisonment imposed in lieu thereof. K. B. A. Rule discharged.