M.U. Shah, J.
1. These are two companion appeals which are directed against the judgment and order of acquittal of the second respondent in each appeal who were Managers respectively of the Mahendra Mills at Kalol and the Bharat Vijay Mills at Kalol. The respondent No. 2 in Criminal Appeal No. 274 of 1972 is the manager of the Mahendra mills who was tried in Summary Case No. 1261 of 1971 for the offence punishable under Section 193 of the Gujarat Municipalities Act in so far as the Kalol Municipality had filed a complaint that the mill was draining dirty water out of the mill and the manager had thus committed the offence punishable under Section 193 of the said Act. The respondent No. 2 in Criminal Appeal No. 275 of 1972 is the manager of the Bharat Vijay Mills, he was tried in Summary Case No. 1260 of 1971 for allowing the dirty water of the Mill to be drained out of the Mill and to be collected in the open space outside. The gravamen of the charge in both the cases was identical, viz. that the Mills had allowed to drain out dirty water upon the open space outside and had thus committed offence punishable under Section 193 of the said Act. The offence in both the cases was alleged to have been committed on the same day, viz. 19th March 1971, and the complaint was filed by one Sumanchandra Bothalal, Food-cum-Sanitary Inspector of the Kalol Municipality, on 24th March 1971 in each case. The manager of the Bharat Vijay Mills was tried in Summary Case No. 1260 of 1971 for the said offence. The evidence in the two summary cases was led separately and the two criminal cases were rightly not consolidated. But, the evidence is identical and so is the judgment and an order of acquittal in both the cases. The learned Judicial Magistrate has by two separate judgments delivered in two cases acquitted the accused in each case on his taking the view that if one collects the water on one's own land or premises and does not allow it to drain or to collect upon municipal streets or upon open space, his act is not covered by the provisions of Section 193 of the Gujarat Municipalities Act, 1963. He has found that there was no proof that the mill drained its dirty water on any part which was either municipal street or open space. He has further found that the place where the dirty water was allowed to be collected was on the boundary of the town and in the Sim area of village Saij, and that there was no evidence on the point that the place where it was drained and collected was within the municipal limits. In this view of the matter, the learned Magistrate has found the accused in each case to be not guilty of the offence punishable under Section 193 of the Gujarat Municipalities Act and has acquitted the accused in each case under Section 245(1) of the Criminal Procedure Code, 1898. The original complainant, viz. the Food-cum-Sanitary Inspector of the Kalol Municipality, has filed Criminal Appeals against the acquittal of the accused viz. the manager of the Mahendra Mills, Kalol, and the manager of The Bharat Vijay Mills, Kalol, in the respective cases as aforesaid. Although these are two separate appeals dealing with the offences committed by two different accused persons, as the evidence is identical and as the question involved is also identical, I would appropriately dispose of both these appeals by this common judgment and this is with the consent of the learned Advocates of the parties.
2. Mr. M.I. Patel, learned Advocate appearing on behalf of the appellant in each appeal, has contended that the learned Magistrate was in error of law in finding that the word 'open space' occurring in Section 193 of the Gujarat Municipalities Act, 1963, mean only the open space of the Municipality. In Mr. Patel's submission, the open space may be owned by a private individual or a company and need not necessarily be the Municipal space and if a private owner or if any occupant allows any water to run or drain upon any open space, may be of the Municipality or may be of the same occupant, it would be a mischief envisaged by Section 193 of the Act and an offence under Section 193 must be held to have been committed in such a case. As against this, Mr. A.C. Gandhi, learned advocate appearing on behalf of the Mahendra Mills and Mr. C.B. Naik, learned Advocate appearing on behalf of the Bharat Vijay Mills, have contended that the word 'open space' occurring in Section 193 of the Act must necessarily mean the municipal open space and, therefore, no offence could be said to have been committed if the water is allowed to go or drain in such open space which is owned by a person other than the Municipality.
3. Now, Section 193 of the Gujarat Municipalities Act, 1963 (which will hereafter be referred to as 'the Act') read:
Whoever causes or allows the water of any sink or sewer or any other liquid or other matter which is or which is likely to become offensive, or water in such quantity as is likely to remain stagnant, from any building or land under his control, to run, drain or be thrown or put upon any street or open space, or to soak through any external wall, or causes or allows any offensive matter from any sewer or privy to run, drain or be thrown into a surface drain in any street, without the permission in writing of the chief officer or who fails to comply with any condition prescribed in such permission, shall be punished with fine which may extend to one hundred rupees,
Section 193 finds its place in sub-head (7) under the caption 'Powers for the prevention of nuisances' occurring in Chapter XI of the Act. Chapter XI deals with 'Municipal Powers and Offences' and is dealt with under 14 distinct heads. The seventh Head under which the section falls deals with the different powers of the Municipality for the prevention of nuisances. Sac. 192 deals with depositing dust, etc. amounting to committing of nuisance. Sub-section (1) of Section 192 provides that 'Whoever deposits or causes or suffers any member of his family or household to deposit any dust, dirt, dung, ashes, refuse, or filth of any kind or any animal matter or any broken glass or earthenware or other rubbish or any other thing that is or may be a nuisance, in any street or in any arch under a street or in any drain beside a street or on any open space or on any quay, etc. etc. x x x x x and whoever commits or suffers any member of his family or household to commit nuisance in any such place as aforesaid, shall be punished with fine which may extend to one hundred rupees.' Sub-section (2) of Section 192 provides that 'whoever throws or puts or causes or suffers any member of his family or household to throw or put any of the matters described in Sub-section (1) except night-soil or, xxx xxx xxx as to pollute the same, shall be punished with fine which may extend to one hundred rupees.' Section 194 deals with non-removal of filth, etc. Section 195 deals with removal of night-soil and the offence connected. Section 196 deals with filthy buildings, etc. Section 197 deals with buildings or rooms in buildings unfit for human habitation. Section 198 gives power to the competent officer of the municipality to inspect all buildings and lands after due notice and to direct sanitary improvements for sanitary reasons. It is not necessary to set out Sections 199 to 206 which also deal with the power of the Municipality to take appropriate steps to prevent nuisance. Sub-head (7) of Chapter XI thus deals with the powers of the Municipality which are in the nature of preventive powers to be exercised for the purpose of avoiding nuisance and with an eye to sanitation of the people. It is a function of the Municipality in the sphere of public health and sanitation to look into such matters as provided by Section 87 of the Act. Nuisance is defined in Clause (15) of Section 2 of the Act as including any act, omission, place or thing which causes or is likely to cause injury, danger, annoyance or offence to the sense of sight, smelling or hearing, or which is or may be dangerous to life or injurious to health or property. The word 'street' is defined in Section 2(25) as including any road, footway, square, court alley or passage, accessible whether permanently or temporarily to the public, whether a thoroughfare or not; and includes every vacant space, notwithstanding that it may be private property and partly or wholly obstructed by any gate, post, chain or other barrier, etc. etc. but does not include any part of such space which the occupier of any such building has a right at all hours to prevent all other persons from using as aforesaid. The word 'public street' has been defined in clause, (22) of Section 2 of the Act i meaning any street-(a) over which the public have a right of way or (B) heretofore levelled, paved, metalled, channelled, sewered or repaired fetei of municipal or other public funds; or (c) which under the provisions of Section 147 or 148 is declared by municipality to be, or under any other provisions of this Act becomes a public street;', 'Private street' has been defined in Section 2(23) of the Act as meaning a street which is not a public street. The definition clauses show that the street may be a public street, may be a private street or may be a street which is not a public and a private street and still a street within the meaning of Clause (25) of Section 2 of the Act and may include every vacant space, but does not include any part of space which the occupier of any such building has a right at all hours to prevent all other persons from using as aforesaid. Thus, the Legislature has clearly defined the words 'public street, 'private street' and 'street' in the Act. But the words 'open space' has not been defined. Having regard to the dictionary meaning of the 'street', 'private street' and 'public street' as supplied by Section 2 of the Act, it is clear that the word 'open space' which occurs in Section 193 and in some other sections of the Act, under sub-head (7) of Chapter XI of the Act has a meaning other than the one which is envisaged in the concept of 'public street' 'private street' and 'street.' The Legislature thus intended that an open space may be one which may, be a public street, private street or street as defined in the Act. That is why the Legislature has in its abundant wisdom purposefully used the words 'any street or open space' in juxtaposition in Section 193. The legislative intent clearly is to give power to the Municipality to prevent nuisance. The nuisance may be committed by a person or persons in its own property, which is enclosed or may be its own property which is outside and which may be an open space. Section 193 of the Act provides that 'whoever causes or allows the water of any sink or sewer or any other liquid or other matter which is or which is likely to become offensive, or water in such quantity as is likely to remain stagnant, x x x x '. It means that it must be shown that person has allowed to run the water which is offensive or which is likely to remain stagnant and which may become offensive. Such water may be allowed to run, drain or be thrown or put upon any street or open space. Such water may be allowed from the land or building of any person. Thus the legislative intent clearly was to confer power upon the Municipality to control acts of persons who allow the water which is likely to become offensive or stagnant to run or drain from any building or land or put upon any street or open space. The open space envisaged under Section 193 need not be an open space belonging to the Municipality. It may belong to the individual or to a public or private limited company. Ownership of the open space is not decisive of the matter. The gist of the matter is that offensive water or stagnant water which is likely to be offensive is allowed to be collected in a street as defined in the Act which may be a public street, private street or a street as defined in Clauses (22), (23), and (25) of Section 2 of the Act and also upon an open space, which is open and which is outside the constructed part of the building of the owner is guilty of allowing such offensive or stagnant water to be drained out, run out or thrown out or to be put upon any space. In my opinion., there is no reason why a restricted meaning should be given to the words 'open space.' The legislative inteflt has to be borne in mind while interpreting the section. As aforesaid, the legislative intent was to give powers to the municipal officers to prevent nuisance. A nuisance may be committed by an owner in his own building or in his own open land. Such a nuisance which is an actionable nuisance would certainly affect the health of the residents nearby may be of the whole area in a given case. That is why the words 'open space' have been advisedly put in juxtaposition with the words 'any street' occurring in Section 193. If the legislative intent was merely to prevent nuisance on the Municipal land, it would have said so. In my opinion, the words 'open space' occurring in Section 193 include also the open space owned by an individual or a person or a Corporation. The learned Judicial Magistrate was thus not right in taking a restricted view of the matter and finding that the open space on which the offensive water was collected or drained must belong to the Municipality and as in the two cases before me, the said open space was not shown to have been of the ownership of the Municipality, no offence was created.
4. But, in order to bring the offence within the meaning of Section 193, it has got to be proved (i) that the accused is a person who has the building or land under his control; (ii) that he allowed the water to run upon or drain upon any street, land or place; (iii) that the water was or likely to become offensive. It must also be shown that the open space, although not of the Municipality was within the Municipal limits and that is the basis of the jurisdiction which the municipal authorities have to prevent nuisance. In the instant two cases, the first three ingredients are satisfied. But, unfortunately, there is no evidence to show that the open space on which the offensive water was drained by the Mahendra Mills in the one case and by the Bharat Vijay Mills in the other case was drained in an open space which fell within the limits of the Municipality of Kalol. The evidence, on the contrary, is that the open space in question falls in the Sim area of village Saij and the water is being drained and collected in the Sim area of village Saij. The learned Magistrate was right when he has found that there was no proof on the point that the place where the water was being drained and collected was of the Municipality. I wish to emphasise that what I mean here is that the open space must be situated within the limits of the municipality and not that the open space must belong to the municipality, It may not belong to the municipality and still, the offence may be committed within the meaning of Section 193. It is unfortunate that whoever initiated the two complaints and whoever prosecuted the accused did not take care to lead evidence to show that the open space in question was situated within the municipal limits of Kalol. It was necessary for the prosecution to have established that the open space in question where the offensive water was drained and collected and which had remained stagnant was within the Municipal limits. Ordinarily, in such a case, the municipality should show what is the municipal area and that would not be difficult for the municipality. It can as well have shown that the open space fell within that area. It should also be shown with certainty that the water which was drained or allowed to run in the open space was an offensive water or was stagnant and would thus become offensive, I am making these observations in order that in future case of these types, where such acts of nuisance are sought to be prevented by the Municipality, proper evidence is led and no loopholes are left for these Mill-owners or Mill-Managers to get out of the penal provisions of the Act. It is unfortunate that although it is shown that the offensive water had been drained and collected in the open space and although it is shown that it has come out of the Mill premises, it is not shown that offensive water fell within the Municipal limits of the Kalol municipality. It is unfortunate that it is on this technical ground and because of the lapse of the Municipal authorities to lead proper evidence that the offences are going unpunished. But, in the state of evidence before me, it is doubtful whether the Sim area of Saij is included within the municipal limits of + Municipality. This is thus a case of doubt and instead of giving a clean acquittal to the two accused persons in the two different appeals who are the two respondents, I would give them the benefit of doubt. I would emphassise that, in future, the Municipality should take more care to see that proper evidence is led in such cases and such offences which endanger human life and safety, should not be repeated. I also wish that the Mills concerned would see that no such offensive or stagnant water is allowed to remain either in the compound of the Mill or may be outside the Mill on the open space so that sanitation of the town is not affected and nuisance is created. The Mills also have a duty to perform. I understand from the record that the Calico Mills have made a suitable arrangement at Kalol. It has constructed a purification plant. The advice of the Central Public Health Engineering, Research Institute of Ahmedabad Zonal Centre is available to, the Mills concerned as appears from Ex. 19 which is a letter addressed by the Under Secretary to the Government of Gujarat, Panchayat and Health Department, to the Scientist-in-Charge, Central Public Health Engineering, Research Institute, Ahmedabad Zonal Centre, Sewage Farm Road, beyond Calico Mills, Ahmedabad-22, that adequate safety measures can be taken in the matter. I only wish that the Mills would see that it has also a duty to discharge to the public and that the health of the village people does not suffer any longer.
Appeals are dismissed.