Decided on July 08,1982



A.S.QURESHI - (1.)This is an appeal filed by the State of Gujarat against the order of acquittal passed by the learned Metropolitan Magistrate Ahmedabad acquitting the accused for the change levelled against him of having contravened the provisions of the Bombay Provincial Municipal Corporations Act 1949 (hereinafter referred to as the `Act) as regards construction of water closet etc.
(2.)The complaint against the accused was that although he was given notice dated 11-10-77 by the Ahmedabad Municipal Corporation for constructing a water closet in the premises in which he resided he failed to do so and thus he committed an offence punishable under the provisions of the Act. It appears that the parties thought it fit not to lead any evidence in the matter as in the opinion of the learned Advocates the matter required interpretation of sec. 178 sub-secs. (1) & (2) of the Act. The learned Magistrate came to the conclusion that in the facts and circumstances of the case sub-sec. (1) of sec. 178 was not attracted and only sub-sec. (2) of sec. 178 was applicable and therefore it required to be considered whether any offence was committed by the accused. After setting out the provisions of sub-sec. (2) of sec. 178 the learned Metropolitan Magistrate held that the word `may used therein must be construed to mean `shall in the context in which it occurs. The actual wordings of sec. 178(2) are as follows:
"178 In prescribing any such terms the Commissioner may determine in each case -

(a) whether the premises shall be served by the water-closet or by the privy system or partly by one and partly by the other- and

(b) what shall be the site or position of each water-closet or privy".
While granting permission under sub-sec. (2) of sec. 178 the Municipal Commissioner has to determine several things such as the question whe ther a particular premises shall be served by water-closet or by the privy system or partly by one and partly by the other and also he has to determine the site or position of each water-closet or privy. These are the inquirements of law where it is essential for the Municipal Commissioner to take decision one way or the other. He just cannot ignore these requirements and therefore when the legislature has used the word `may in the context it must necessarily mean must because if he choses not to determine this question the provisions of the section would not be carried out and therefore it must be held that the interpretation put by the learned Magistrate in holding that the word `may in the present context means `must is quite correct and must be upheld.
(3.)The learned Assistant Public Prosecutor has argued that once a notice is issued the recipient of the notice cannot just sit quiet and not carry out what he is required by law to do. The notice as it were was an invitation to him to make an application to the Municipal Commissioner for granting him permission to construct a water closet privy etc. and on his application being made the Municipal Commissioner may determine the questions required by sub-sec. (2) of sec. 178. There is considerable force in this argument of the learned Asstt. Public Prosecutor to which Mr. B. K Amin the learned Counsel for the accused has answered by saying that the notice is so vague that it does not clearly indicate as to where he is required to construct the water-closet. He is simply told that he should construct a water-closet according to the rules and bye-laws leaving out that portion of the house which is in road line and putting up the door of the latrine not facing the public street and that he must follow the Municipal rules and the bye-laws while constructing the said latrine without contravening any provisions of the Municipal Rules and Bye-laws. On the face of it it is quite clear that the notice is as vague as it could be. If a person has to be tried for criminal offence he must be told precisely what offence he has committed before he can be punished for the alleged commission of the offence. Apparently the Municipal authorities have not applied their minds to the facts and circumstances of the case and have apparently no idea as to how big or small the premises in question is or whether there is sufficient room for constructing a water-closet or not or whether there would be any land left out or remaining after the road line is put into effect. In the circumstances of the case it is difficult to say that the learned Metropolitan Magistrate has erred in acquitting the accused person of the alleged offence committed by him. The State appeal therefore fails and is dismissed. Appeal dismissed.

Click here to view full judgement.
Copyright © Regent Computronics Pvt.Ltd.