1970 P Cr (PLP)

This is a Reference under section 438 of the Code of Criminal Procedure made by the learned Sessions Judge, Dinaj pur recommending to set aside an order of conviction dated 4-5-68 passed by Mr. M. A. Hamid, Magistrate Ist Class, Dinajpur in Case No. 1737-C of 1967 under section 115/116 of the Municipal Administration Ordinance, 1960 (hereinafter called the Ordinance). The Municipal Committee, Dinajpur brought a case against the accused on the allegations that they constructed a Kutcha latrine and were using the said objectionable latrine in Municipal area to the detriment of the health of the 'local people. A Sanitary Inspector of the Municipality held local enquiry into the matter and served notices upon the accused under section 45(3) (c) of the Municipal Administration Ordinance, 1960 asking them to remove the objectionable latrine within 15 days from the date of the receipt of the notices and on their failure to comply, he submitted the prosecution report under section 115/116 of the said Ordinance. The accused asserted tat they were tenants under Maqsood Alam Khan and Mahfooz Alam Khan and had been using the latrine for long years. The notices for removal of the latrine should be served on the owners of the holding. They were occupiers and not owners and they could not be held responsible for the owner's liability. A number of witnesses were examined in the case. The learned Magistrate who tried the case summarily, convicted the accused under section 115% 116 of the said Ordinance and sentenced them thereunder to pay a fine of Rs. 75 each, in default to simple imprisonment for six weeks each. The learned Sessions Judge has recommended to set aside the above order of the learned Magistrate on the ground that section 45(3) (c) of the Ordinance relates to the liability of the owner' and the act is to be performed by the owner and not the tenant. The accused who are tenants cannot be held liable for removal of the latrine and as such their conviction under section 115/116 of the Ordinance is bad in law. Section 45(3) of the Ordinance runs as follows: - "Where any premises are without privy or urinal accommoda tion, or without adequate privy or urinal accommodation, or the privy or urinal is on any ground objectionable, the Municipal Committee may by notice require the owner of such premises- (a) to provide such or such additional, privy or urinal accommodation as may be specified in the notice ; or (b) to make such structural or other alterations in the existing privy or urinal accommodation as may be so specified ; (c) to remove the privy or urinal ; and (d) where there is an underground sewerage system, to sub stitute connected-privy or connected-urinal accommodation for any service-privy or service-urinal accommodation." It is apparent from the above provisions that sub section (3) (c) of section 45 of the Ordinance speaks of owner's liability and not of the tenant or occupier. This subsection provides that the Municipal Committee may by notice require the owner to remove the privy and the notice for removal of such privy or urinal shall be served on the owner of the premises. The accused who are tenants cannot be directed to remove the privy. Removal of the objectionable latrine being the liability of the owner, the occupier cannot be punished under section 115/116 of the Ordinance for the owner's burden, due to non-compliance with the notice. The above provision of law, no doubt, lays down that a tenant or occupier cannot be held responsible for the owner's liability. But a question may arise here who will be responsible for removal of the objectionable latrine if it is constructed by the occupier? Can the owner be directed to remove latrine constructed by the tenant? If a tenant or occupier cannot be punished for the owner's burden then why an owner will be responsible for the tenant's laches. The section does not make any clear provision for such a con tingency. But it follows there from as a corollary that if the tenant cannot be held responsible for the owner's burden, the owner cannot be held guilty for the tenant's liability. In my opinion, in cases where the privy or urinal is constructed by the owner of the premises, the owner shall be responsible for its removal but where the latrine or urinal is constructed by the occupier or tenant then the occupier or tenant will be responsible for its removal. If the tenant constructs the privy for urinal at his own accord, behind the knowledge of the owner, then the privy or urinal in question is the personal property of the tenant and not of the owner and so the owner of the holding cannot be held responsible for its removal. Notice for removal of the privy shall be served on the owner of the alleged construction and not on the owner of the premises. Mr. A. T. M. Aft al learned Advocate appearing for the State has, in this connection drawn my attention to the case of Khairunnessa Bibi v. The Corporation of Calcutta (1) wherein, Jack, J. of the Calcutta High Court held: "Where, therefore, the owner of the land is not the owner of the structures standing thereon, the requisition under section 271 should be served in the first instance upon the owner of the structures built upon the land and not upon the owner of the land. Hence when the requisition is served only on- the owner of the land, he cannot be convicted for non-compliance with it." I agree with the view expressed above and hold that if the objectionable latrine is constructed by the occupier then it is the property of the occupier and the occupier will remove the same. B The notice .for its removal shall be served on him and in case of non-compliance with it, he will be liable for punishment according to law. In the instant case, it appears from the notices under section 45(3) (c) the prosecution report and the evidence on record that the accused themselves constructed the objection able latrine. The learned Magistrate did not, however, consider this aspect of the case in his judgment nor recorded up any clear finding in that respect. Without a clear, finding as to whether the accused themselves constructed the objectionable lartine, they cannot be held responsible for its removal nor found guilty under section 115/116 of the Ordinance for non- compliance with the notices. The order of conviction is, therefore, liable to be set aside. For the reasons stated above and the reasons recorded by the learned Sessions Judge this reference is accepted and the impugned order is set aside. It is directed that the case should go back on remand to the original Court for retrial in accordance with law, in the light of the observations made above. The point raised in the case has some public importance and the Legislature may consider the desirability of suitably amending the law accordingly to meet such contingency. Reference accepted. Case remanded for retrial.