JUDGMENT 1. THIS is an application under Section 439 of the Code of Criminal Procedure by one Bhabataran Chatterjee accused petitioner who has been found guilty under Section 513 read with Section 500 of the Bengal Municipal Act, 1932, convicted and sentenced under those sections to pay a fine of Rs. 40/- and in default to suffer simple imprisonment for a week by the Judicial Magistrate, first class, Chandernagore on 25. 11. 1969. The revisiorial application has been opposed by the opposite partychandernagore Municipal Corporation through the complainant Dinanath duttaan employee. The learned magistrate found that one Bejoy Gopal chatterjee is the owner of the house situated in the revisional survey plot no. 865 of Mouza Chandernagore. Contiguous to the south of his house runs rabindra Nath Thakur Road within R. S. plot No. 888. The accused is one bhabataran Chatterjee son of Bejoy gopal Chatterjee and he is neither the owner nor the occupier of plot No. 865 the case of the prosecutionchander--nagore Municipal Corporation was that there exists a katcha drain imme diately to the north of Rabindra Nath thakur Road which passes in betweem the said road and the premises of Bejoy gopal Chatterjee within R. S. plot No. 865. After describing the course of the drain the learned Magistrate observed in his judgment as follows : "It passes in front of the house of the father of the accused to fall in another pucca drain situated contiguously to the east of the house of the father of the accused. The prosecution case is that the accused filled up the katcha drain, situated in front of his house with rubbish and earth. As a result filthy water of the house situated contiguously to the West of the house of the accused started coming down upon the Rabindra Nath thakur Road. There was a complaint in this regard (Ext. 9 and 1), and ultimately Dinanath Dutta conservancy supervisor under Chandernagore Corporation was duly ordered by the Municipal authorities to clear up the drain (Ext. 1|2 and 1|3 ). Shri Dutta (P. W. 1)went to the spot on 4. 7. 1967 along with three coolies, of whom Laldhari Bhuniya was one to clear up the passage of the drain. He was obstructed by the present accused in discharging his duties. 1|2 and 1|3 ). Shri Dutta (P. W. 1)went to the spot on 4. 7. 1967 along with three coolies, of whom Laldhari Bhuniya was one to clear up the passage of the drain. He was obstructed by the present accused in discharging his duties. The accused, as it is alleged, abused him in filthy language and threatened him with dire consequences if he proceeded with clearing up of the passage of the drain. As a result Shri Dutta had to go back without doing the needful in this regard and he lodged a complaint before the Administrator of the municipality detailing all the facts therein. " 2. SO the Criminal case No. 995 of 1967 was filed over the occurrence by the Municipality under Section 513 of the Bengal Municipal Act before the court of the learned Magistrate. The prosecution examined P. W. 1 Dinanath dutta, P. W. 4 Laldhari Bhuniya, P. W. 5 ushanath Chatterjee and P. W. 6 Gui-ram Pal and other prosecution witnesses, 8 in all in number. The defence examined one witness D. W. 1. The defence of the accused was that no drain existed at the locale. To support this came one Debendra Nath guhad. W. 1 a surveyor. The learned magistrate found relying on the evidence of Dinanath Dutta, Chaitanya mallik and Laldhari Bhuniya that in fact the drain existed at the locale as the prosecution contended. As the existence of the drain the learned Magistrate referred to an application Exhibit 4 and the plan Exhibit 5 which one bejoy Gopal Chatterjee presented before the municipal authorities for permission to construct a house on the land in R. S. plot No. 865. The learned Magistrate found that on the plan there was no signature of the father of the accused. So the worth in evidence of the plan exhibit 5 could not impress the Magistrate but still relying on the oral evidence he found the existence of the drain. The accused in defence examined D. W. 1 to impress upon him that the drain did not exist. Considering the evidence of this witness the learned Magistrate observed as follows: "He claims to have relayed the plot. He has prepared no case map, no field book. He admits that correct result cannot be arrived at without two fixed points. His re'ayment is quite unreliable. " 3. Considering the evidence of this witness the learned Magistrate observed as follows: "He claims to have relayed the plot. He has prepared no case map, no field book. He admits that correct result cannot be arrived at without two fixed points. His re'ayment is quite unreliable. " 3. SO the defence evidence through d. W. 1 having been considered by the learned Magistrate he could not persuade himself to accept such evidence as true. Considering the trend of the cross-examination of the prosecution witnesses, the learned Magisrate observed as follows: "The trend of cross-examination of P. Ws. will show that the accused claims the land wherein the alleged drain exists. " 4. CONSIDERING the oral evidence of! the prosecution witnesses who are the neighbours of the accused and of the municipality the learned Magistrate found that it had been positively proved that the accused did not allow the complainant (P. W. 1) to excavate out, the rubbish from the drain on 4. 7. 67 and the accused threw away the spades and threatened with injury. The learned. Magistrate then observed as follows "Having regard to the evidence on record I have absolutely no doubt that the accused obstructed the municipal, employees to do their lawful duties. " The accused contended that no notice under section 512 (c) of the bengal Municipal Act, 1932 was served. The learned Mgaistrate found that the drain being a municipal drain section 512 (c) of the Municipal Act was not attracted. A point of Limitation Act was raised in defence under Section 533" of the Bengal Municipal Act which the learned Magistrate did not accept. Hence there was the conviction and the sentence as already pointed out earlier in this judgment. 5. THE learned Counsel for the accused petitioner submitted that there was a claim of a bona fide dispute of civil right regarding the land over which the drain exists and as such, the magistrate had no jurisdiction to proceed with the case. The drain, according to the learned Counsel, never existed at the locale, and even if it existed, as the. learned Counsel submitted, it was within the plot No. R. S. 865. The revisional survey Khatian shows that the R. S. plot 865 belongs to one Bejoy gopal Chatterjeee and,does not belong to the accused. Therefore, the contention raised by the learned counsel has no substance. learned Counsel submitted, it was within the plot No. R. S. 865. The revisional survey Khatian shows that the R. S. plot 865 belongs to one Bejoy gopal Chatterjeee and,does not belong to the accused. Therefore, the contention raised by the learned counsel has no substance. Next the learned Counsel submitted that the most important evidence of D. W. 1 has not been considered by the learned Magistrate but the learned Magistrate's judgment speaks for itself. I have already observed what the learned Magistrate did with the evidence of D. W. 1. The learned Counsel then submitted that the evidence of all the prosecution witnesses particularly P. Ws. 1, 3 and others had not been considered. The evidence of these witnesses had been considered as I have already observed. The learned Counsel submitted that there is no municipal map to show that the drain if it existed at the locale was a public drain and as such, there was no drain at the locale not to speak of a public drain. I am sorry I cannot accept that submission. The learned Magistrate has found that there is a drain at the site in question between the public road Rabindra Nath Thakur Road and the plot No. 865 belonging to one Bejoy gopal Chatterjee, who is the owner of the house situated on that plot, but not the accused petitioner. Then my attention was drawn by the learned counsel to Section 514 of the Bengal municipal Act the learned Counsel submitted once that his client was not either the owner or the occupier of the site of the drain. But he again submitted that his client was the owner. That submission cannot be accepted in view of the entries in the R. S. Khatian and the learned Magistrate found that the premises on plot No. 865 belonged to a person other than the accused. Section 514 of the Bengal Municipal Act has no application. So all the witnesses examined by the prosecution and one witness examined by the defence were considered by the learned Magistrate. The submission of the learned Counsel that the material witnesses and the material documents had not been considered by the learned Magistrate could not impress me and I find that all the material witnesses and material documents had been considered by the learned Magistrate. The submission of the learned Counsel that the material witnesses and the material documents had not been considered by the learned Magistrate could not impress me and I find that all the material witnesses and material documents had been considered by the learned Magistrate. The learned Magistrate was required to find whether the drain in question is attached to the public street. He found that the drain in question is attached to the public street, that means Rabindra nath Thakur Road. Public street in section 3, Clause (44) reads as follows : "Public Street" means any street, road, lane, gully, alley, passage or square which is not a public street as defined in this Section. . . . (e) the drains attached to any such street, public bridge or causeway, and where there is no drain attached to any such street, shall be deemed to include also, unless the contrary is shown, or land upto the boundary wall, ail, hedge, or pillar of the premises if any abutting: on the street, or if a street alignment has been fixed, then upto such alignment. 6. SO the only question is whether at the site there is a drain. The question is not whether it appertains to the municipal street plot No. 888 or to the plot No. 865. It may appertain to plot no. 865 but the accused is neither the owner nor the occupier of the plot No. 865. He cannot have any pretence, not even fair pretence of a claim for a right in regard to plot No. 865. Therefore the first question will be whether there exists the drain at the site. The learned Magistrate found that the drain exists. I accept that finding. The next question is whether the drain is attached to Rabindra Nath Thakur Road which has been proved to be a public street belonging to Chandernagore Municipal Corporation. The word "attach" occurs at page 118 of the Shorter oxford English Dictionary Volume 1, 1969 edition. In 1859 the expression came to be known in England as "joined functionally". Now the public street has certain functions to do. It is usable by all and sundry for either human or vehicular traffic or for both. The drain attached to the public street means that it is functionally attached to the user of the street. The word "attached" in English language, since 1859, carries that sense. Now the public street has certain functions to do. It is usable by all and sundry for either human or vehicular traffic or for both. The drain attached to the public street means that it is functionally attached to the user of the street. The word "attached" in English language, since 1859, carries that sense. Therefore, if a drain is attached as it is understood in English language, to a public street, it is functionally a part of the public street. Therefore, it is a public street. Therefore, the drain at the site even if it appertains to plot No. 865 has been found by the learned Magistrate sandwiched between the "public street" in plot No. 888, and the plot No. 865. Absence of entry in a settlement record of right raises no presumption under section 44, sub-section (4) of the West bengal Estate Acquisition Act. Whether the drain at the site has not been recorded as appertaining to any of the r. S. plots being a negative aspect has no value. If it was recorded as appertaining to plot No. 865, still it is attached, to the public street. If it was recorded within plot No. 888, then it would be: part of the public street. The Legislature with due caution and circumspection used the expression "attached" to the public street but not within or "part of" the public street. The reason is not far to seek. Sub-clause (e) of clause 44 of Section 3 of B. M. Act' 932 contains amongst other things the following words : "Where there is no drain attached to any such street, shall be deemed to include also, unless the contrary is shown or land upto the boundary wall, ail hedge or pillar of the premises, if any abutting on the street, or if a street alignment has been fixed then upto such alignment. " So, the expression "attached to a public street" gets a further stretched meaning in the words I have just now quoted. The drain "attached to a public street" is a public drain. If the drain is not attached to such public street, the public street shall be deemed to include also unless contrary is shown or land upto the boundary wall, ail, hedge or pillar of the premises, if any abutting on the street. The drain "attached to a public street" is a public drain. If the drain is not attached to such public street, the public street shall be deemed to include also unless contrary is shown or land upto the boundary wall, ail, hedge or pillar of the premises, if any abutting on the street. The emphasis is on the word "abutting" on the street one is attached to the street and the other is abutted on the streetthus appear with reference to the "public street". Therefore, the learned Magistrate's finding that the drain at the site is attached to the public street, has led him to find the drain to be a "public street". Now the learned Counsel relying on Section 464 of the Bengal municipal Act said as there was no municipal plan showing the existence of the drain so it must be presumed that there was no drain. The finding of fact is that there is the drain. The section does not say that if there is no property of the Municipality shown in the municipal plan, the property shall not be of the Municipality. I asked the learned counsel as to when the drain was excavated whether after the preparation of the Municipal plan or before ? He found no answer. The drain as the learned magistrate found lies between the premises on plot No. 865 and the public street plot No. 888. The owner of the premises is one gentleman who is not the accused. The learned Magistrate made a colossal error of law when he rejected the application and the map. The application was filed (Exhibit 4)along with the map. On the basis of the application the applicant got permission to build on the site approved by the Commissioners of the Municipality, and the building has been on the site approved by the Municipality on the application Exhibit 4 that was accompanied with a map of the site and the proposed building (Exhibit 5 ). Whether that map bore the signature of bejoy or any other person who was the owner or has been the owner of the plot is of no moment. The application exhibit 4 bears the signature of the applicant. Whether that map bore the signature of bejoy or any other person who was the owner or has been the owner of the plot is of no moment. The application exhibit 4 bears the signature of the applicant. Therefore, if I accept the learned Magistrate's finding that the map having had not borne the signature of the applicant could not be looked into, the person who got the plan sanctioned on the basis of the application and the plan (Ext. 4 and 5)had not therefore obtained any sanction of the plan for the building he had built on the site. It is a fallacy of reasoning which if accepted would make the owner of the building an offender against the law since he has built the building without the sanctioned plan and without the permission of the municipality. His building is liable to be demolished by the Municipality. I am sorry to observe that such argument before the learned Magistrate was illogical and illegal. Therefore, I hold on consideration of the questions raised that the learned Magistrate's order must be confirmed and it is, hereby, confirmed. In the result, the Rule is discharged and the revisional application is rejected.