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Bala Prasad, Secy. Municipal ... vs Muzammil Husain

High Court Of Judicature at Allahabad|29 November, 1933


ORDER Niamatullah, J.
1. This is a criminal reference made by the District Judge of Jalaun, recommending that the order passed by a Magistrate, Third Class, of that district, acquitting Muzammil Hussain of an offence under Section 185, U.P. Municipalities Act, be set aside. It appears that Muzammil Hussain, who is a wood contractor, erected what is described by the trying Magistrate as "a temporary shed" and by the District Magistrate as a "chappar," without the permission of the Municipal Board of Oral. It is not disputed that the site, on which the shed or chappar stands, is within the limits of Oral Municipality. The accused was prosecuted by the Municipal Board, but was acquitted by this Tahsildar Magistrate of Oral on two grounds namely, (1) that the shed did not abut or was not adjacent to a public street, or place or property vested in His Majesty or in the Municipal Board, and (2) that the shed in question cannot be considered to be a building within the meaning of that word, as defined in Section 2(2), Municipalities Act.
2. The Municipal Board moved the District Magistrate in revision and relied upon a certain bye-law which made it necessary that persons desirous of erecting any "building" within the Municipal limits should give notice contemplated by Section 178, Municipalities Act, regardless of the fact that the proposed building does not abut or is not adjacent to a public street or place, or property vested in His Majesty or in the Board. The Beard also impugned the view of the trying Magistrate on the question whether the shed in. question is a building, as defined in the Act. It was argued that the "chappar" of the kind erected by the accused is a. "building," as defined in _Section 2(2). Both contentions found favour with the District Magistrate, who has made the present reference.
3. The learned advocate for Muzammil Husain has referred to a number of decisions of this Court and of other High Courts, which have laid down the rule of practice that ordinarily an order of acquittal, though erroneous, will not be interfered with in revision. Moat of these cases however contain a reservation to the effect that the High Court may and does interfere in case s of an exceptional nature. For the reasons which will be presently-stated I am of opinion that this case is of an exceptional nature. The order of the-trying Magistrate proceeds on a supposition that a certain bye-law doss not exist, though in fact it does. The question involved in the case is one which is likely to arise frequently, and it is highly desirable, in the interest of the public of Oral that no uncertainty should exist on such a question. Section 178, Municipalities Act, provides that before beginning, within the limits of a Municipality, to erect a new building, a person shall give notice of his intention to the Board. Sub-section (2) of that section explains that the notice referred to in Sub-section (1), as required in the ease of a building, shall only be necessary where the building abuts on or is adjacent to a public street or place, or property vested in His Majesty or in the Board, unless by a bye-law applicable to the area in which the building is situated, the necessity of giving notice is extended to all buildings.
4. The Trying Magistrate was under the impression that no bye-law which ex. Sends the application of Section 178 to all buildings erected within the Municipality had been made by the Board. His attention does not appear to have been drawn to a bye-law which was published in the Government Gazette of 17th March 1929 and which provides that the Board hereby requires with reference to Sub-section (2), Section 178 that notice be given in the case of all buildings wheresoever situated within the Municipal limits.
5. It is quite clear that if the Trying Magistrate had been aware of the bye-law referred to above, his decision would have been otherwise, at any rate so far as the first ground on which it is based is concerned. The learned advocate, who appears to oppose the reference, has contended that notice required by 8. 178, Municipalities Act, was not necessary, as the shed in question is not a building as denied in Section 2(2) of that Act. The only question therefore is whether the shed erected by Muzammil Husain should be considered to be a "building" as defined in Section 2(2) of the Act, according to which that term means a house hut, shed, or other roofed structure for whatsoever purpose and of whatsoever material constructed, and every part thereof, but shall not include a tent, or other such portable and merely temporary shelter.
6. The record does not give an accurate idea of the shed which is in question in this case. It appears that the accused has recently acquired a piece of land 30x30' on the "band" of a "pacca" tank in mohalla Gopalgauj Parao in the town of Oral. The shed or chappar, whatever it is, stands on that piece of land. The District Magistrate does not appear to have inspected the locality. The Trying Magistrate, who did so, has described it as a "shed for keeping wooden materials." He has considered the definition of the word "building" referred to above and' held that it should be regarded as a "portable and merely temporary shelter." His judgment however gives some indication of his reason on which that view is based. The learned Magistrate seems to be of opinion that as the shed is meant only for" the summer season and is intended to be removed afterwards and to be reported again next summer, it should be considered to be a "portable and temporary shed." I do not think this is the right test. The definition makes it perfectly clear ' that a hufe or a shed or other roofed structure is a "building" for the purposes of the Act, while a tent or other such portable and merely temporary shelter is not. The words "other such portable and merely temporary shelter" should be taken ejusdem generis with what precedes, viz., tent. Though it is not strictly necessary for the exception to apply that the shelter should be made of cloth or canvas, e.g., a roof consisting of nothing but a reed screen (sirki ka pal) spread over bamboo poles cannot be a building. Shed made of straw and slanting on either side, supported on four poles cannot invariably be considered to be a "building" as defined in Section 2(2); but what is ordinarily called a "chappar" in this country may be a "building," if its dimensions are sufficiently large. In the case before me there is. nothing on the record to indicate the precise character of the shed. If the whole-or a major part of the site, which is 30' by 30', is covered by the chappar in question , though it may be supported on poles, it should be considered to be building, as defined in Section 2(2). Having regard to the purpose for which it has been erected, there is no reason to believe that it is so big as not to be easily portable without materially affecting its condition. It is meant to afford protection from sun and rain to the wooden materials belonging to the contractor. It cannot be like an ordinary hut one frequently cornea across in fields put up by agriculturists temporarily for a season. As the Magistrate's order of acquittal proceeds on a misconception of law on both the material points in volved in the case, I am inclined to set aside the order of acquittal and order a retrial. The Trying Magistrate should record fuller details of the shed in question in dealing with the case afresh and then arrive at a conclusion as to whether the shed is a "building" as defined in the Act.
7. For the reasons stated above, I accept the reference,set aside the order of acquittal and direct that the accused Muzammil Hussian be retried for an offence under Section 185, Municipalities Act.
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Bala Prasad, Secy. Municipal ... vs Muzammil Husain


High Court Of Judicature at Allahabad

29 November, 1933