EMPEROR Vs. HASANBHAI REHMATBHAI VINAWALA

JUDGEMENT

(1.) 1.This is an appeal by the Government of Bombay against the order of acquittal passed by the Honorary Second Class Magistrate of Nadiad in a case in which the accused Vora Hasanbhai Rehmatbhai Vinawala was prosecuted for erecting without the permission of the Nadiad Municipality a fence six feet in height consisting of wooden planks attached to posts embedded in the earth on the northern and southern boundaries of an open piece of ground to the east of his house situated within the Municipal limits.

(2.) THE appeal raises the question whether the said construction is a building within the meaning of Section 3, Clause (2), of the Bombay Municipal Boroughs Act (Bom. XVIII of 1925). It seems the accused had made an application to the Nadiad Municipality on April 19, 1940, for permission to build a compound wall with doors in it in survey Nos. 509A and 509B. Comprised in those survey Nos. is the vacant land in question to the east of the accused's house. That permission was refused by the Chief Officer of the Municipality because the open land was "street land" and the consent of all the persons residing in the street was not obtained. Against that refusal the accused appealed to the general body for redress. That appeal was rejected by that body in July, 1940, on the same grounds as those given by the Chief Officer. THEreafter the accused made the construction in question which is the subject-matter of the charge against him. THEre was a complaint against the accused's act from the residents of the street to the Municipality on or about July 29, 1940, upon which the Municipality directed the prosecution of the accused under Section 123(7) of the Bombay Municipal Boroughs Act.

(3.) IT has been argued that the fence in question could be regarded, in view of its height, as an enclosure and therefore offending against the provisions of the statute. Such a suggestion was not accepted in Emperor v. Ranchodlal. There the Court held that the word "enclosure" referred to in the definition of 'building' must be interpreted as ejusdem generis with the preceding words 'hut' and 'shed', that is to say, must be taken to refer to some fabric or structure or thing built in the more popular acceptance of the word. Notwithstanding that judicial pronouncement, the legislature has not thought it fit to make any alteration or amendment in the definition of the term 'building', and it may be presumed that it accepted that interpretation as correct. Merely because the wooden fence screens off completely the outer view, it could not, in our opinion, be regarded as an enclosure.