Calcutta Municipal Corporation v. Shri Amar Sankar Goswami

Borough-II CMC on 12.8.99. He along with the VCS Mr. Satyajit Bera, VCM Mr Bablu Banerjee and VCM Md. Yakub went for inspection at Wann Hostel, 32/6 Beadon street Calcutta in Ward No. 16. On reaching there, they found three masonary tanks at ground level with plenty of Anopheles mosquito larvae appearing there within the hostel premise. There was a premise with No. 57B Karbala Tank Lane lying opposite to the hostel premises, where there were incidents of lots of P. falciparum malaria were detected. Seeing the breeding place of mosquitoes within the hostel premise, PW-1 requested case taken of hostel to vacate and clean the said tanks with mosquito larvae. However the hostel did not comply. PW-1 had prepared an inspection note on 12.8.99 on the spot. He requested care taker Vin Mohanti to put his signature on his inspection notice. The said care taker refused to sign on the inspection note. The said inspection note in the inspection diary in the handwriting of PW-1 with his signature was marked at Exhibit-

The certified copy of Exhibit 1 was duly verified and certified by Ex H.O, Dr. D.S. Das whose signature was known to PW-1. On

12.8.99, he issued notice on the spot upon Superintendent of the Hostel. However, as Superintendent of the Hostel was not available at the time so no notice was served upon him. PW-1 further stated that on 13.8.99, VCS Satyajit Bera served notice upon Superintendent of the Hostel at his instance. Notice was duly served upon Superintendent of the Hostel. The copy of the notice 7 bearing receiving signature of the Superintendent of the Hostel which was duly filled with signature of PW-1 was marked as Exhibit 2. On 21.8.99 he again visited the spot with VCS Mr S. Bera and two Mazdoors when the same situation persisted as detection of the earlier occasion was found again. PW-1 prepared an inspection notice on the spot and the said report with signature of the Caretaker of the Hostel, V. Mahanti was marked at Exhibit 3. The certified copy of Exhibit 3 was duly verified and certified by Ex H.O., Dr. D.S. Das whose signature was known to PW-1. He then reported the matter to Borough Executive H.O. Borough-II on

21.8.99 with the inspection note, who gave endorsement stating that the proceedings under Section 496 of the CMC Act was initiated. The said reporting to Borough Ex. H.O. Borough-II dated

21.8.99 with endorsement of Borough Ex HO Borough II was marked at Exhibit 4. The PW-1 stated he prepared the report on the spot. The petition of the complaint prepared and signed by Ex H.O of Borough-II was marked at Exhibit 5. PW-1 stated that the accused was present in Court the day he deposed, but did not find him present in the spot on both the occasions. He visited the spot twice. He states that there may have been several houses under the same mother premises number. It was not a fact that there was no hostel at 32/6 Beadon Street. Inmates of the hostel in question were affected by malaria, but he was unable to recall the names. However he urges it was not a fact that no inmates of the hostel in question were affected with Malaria. It was not a fact that he did not inspect the premises-in-question however he could not tell the 8 exact address of Wann Hostel Visited by him. He deposes that it was not a fact that Wann Hostel was free from breeding places of mosquitoes.

PW- 2 stated to have accompanied PW-1 for the purpose of inspection to Wann Hostel at 32/2 Beadon Street. He corroborated the testimony of PW- 1. He further stated to have served notice on the accused person who after signing received the same on

13.8.99. The signature of the accused appearing on the copy of notice was marked as Exhibit 2. He stated to have visited the premises on 21.8.99. During his cross examination he stated to have not gone for inspection at 32/8 Beadon Street.

PW-3, the executive health officer of Borough-II CMC had filed the complaint being contended with the report of PW- 1 which emphasised the spread of malaria in the locality due to mosquito breeding in the masonary tank of 32/6 Beadon Street, Wann Hostel. He identified the photographs with Negative depicting Wann Hostel to exist at 32/6 Beadon Street. The photograph with negative was marked as Exhibit 6.

PW-4, the photographer corroborated the deposition of PW-3 to have taken a photograph of Wann Hostel situated at 32/6 Beadon Street. The accused opposite party during his statement under section 313 of the Cr.P.C. stated that there hostel was situated at 32/8 Beadon Street and there was no Wann Hostel at 32/6 Beadon Street.

The accused deposed at DW-1 inter alia stated that he was the 9 Superintendent of Scottish Church College Wann Hotel located at Wann Hostel at 32/8 Beadon Street. He was not connected with 32/6 of Beadon Street for situation of a hostel of Scottish Church College, namely Wann Hostel. He deposes that none on behalf of CMC visited or inspected 32/8 Beadon Street, Wann Hostel at any point of time. There was no such masonary tanks at 32/8 Beadon Street, Wann Hostel sufficient for giving rise to the birth of mosquito larvae as they regularly cleaned and washed the tanks. The telephone bill of Wann Hostel was marked as Exhibit A. The electricity bill of CESC for Wann Hostel was marked as Exhibition B after the objection of the prosecution. The prospectus of Scottish Church College Hostel was marked at X and Y for identification. The photograph with negative of Wann Hostel was marked at Exhibit C. The photograph had been taken on the previous Saturday. To the Court he deposed that Wann Hostel was the property of Mission Scottish Church College used to pay tax on assessment for building with Wann Hostel. He could not tell if any license under Section 421 of the CMC Act was obtained for Wann Hostel for the year 1998-1999 and for the following year. He could not tell for which purpose the telephone was installed for. He stated that it is not a fact that the office of Wann Hostel exists at 32/8 Beadon Street and Wann Hostel itself exists at 32/6 Beadon Street. He stated that there was a Hostel called Duff Hostel at 32/8 Beadon Street under the same college. It was not a fact that in order to obtain an order of acquittal from the Court, the 10 photograph was surreptitiously prepared on last Saturday overwriting 32/6 Beadon Street as 32/8 Beadon Street.

Calcutta Municipal Corporation Act, 1980 stated as follows:

496. (1) When— (a) any well, pool, ditch, lank, pond, pit or marshy or undrained ground, or (b) any cistern, reservoir or waier-bull or any other receptacle or place where water is siored or accumulates, or (c) any waste or stagnant water, whether within any private enclosure or not, appears to the Municipal Commissioner to be or to be likely to become injurious to health or offensive to the neighborhood or in any other respect a nuisance, he may, by written notice, require the owner or occupier of the land or building in which such well, pool, ditch, tank, pond, pit, ground, cistern, reservoir, waier-bull, receptacle, place or water pertains to cleanse or to fill up the same or drain off or remove water there from or to lake such oilier action as the Municipal Commissioner may deem necessary. (2) No person shall keep or permit to be kept or maintained within any premises or land any collection or stagnant or flowing water which in the opinion of the Municipal Commissioner is, or is likely to become, a breeding place for mosquitoes, unless such collection of water is treated in such manner as may effectively prevent the breeding of mosquitoes.

The accused while deposing before the court as DW-1 through documentary evidence proved that Wann Hostel did not exist at 32/6 Beadon Street. DW-1 was the Superintendant of Scottish Church College, Wann Hostel was located at 32/8, Beadon Street. 11 The alleged masonary tank did not comprise the premises of 32/8 Beadon Street giving rise to accumulation of mosquitoes larvae to breed to the detriment of the human life spreading malaria. The documentary evidence produced by DW-1 in his examination in chief could not be controverted by the prosecution in the cross examination. In the absence of a tank to facilitate as the breeding ground for mosquitoes larvae to be infested and create unhygienic and unhealthy life threatening precarious disease like malaria to have been spread as alleged is out of question. Under such circumstances, the Learned Trial Court had rightly acquitted the opposite party and this court is not inclined to interfere with the same.

Lower court records along with a copy of this judgment be sent down at once to the Learned Trial Court for necessary action.

Photostat certified copy of this order, if applied for, be given to the parties on priority basis on compliance of all formalities. (Ananya Bandyopadhyay, J.)