EMPEROR Vs. DAHYABHAI SAVCHAND JHAVERI

JUDGEMENT

(1.) THIS is a reference made to us by the Additional Sessions Judge of Ahmedabad, wherein he suggests that the conviction of the accused under Section 123(7) of the Bombay Municipal Boroughs Act, 1925, is illegal and ought to be quashed.

(2.) THE facts are not in dispute. On May 26, 1938, the accused gave notice under Section 123(1) of the Act that he desired to make certain additions to his house, and permission was granted to him. But then on May 1, 1939, he gave a further notice that he desired to make certain other additions, one on the west side and one on the south side, and on June 9 a reply was sent to him by the Municipality saying that the projection in the west shown in the plan should be removed, and thereafter arrangements would be made for the permission. That was certainly not a refusal of permission to make the erection on the southern side, although no permission was actually given. THE accused afterwards made the erection on the southern side, and he was prosecuted under Section 123(7) and convicted and fined Rs.10.

(3.) MR. Shah for the Municipality says that the building in question is a projection over a street, and is, therefore, prohibited by Section 143. The learned Magistrate seems to have inspected the premises, but there is no finding as to whether the building projects over a public street, and there is no evidence before us on the subject. Therefore, the question arises whether the burden is upon the Municipality to show that the accused's act is inconsistent with any other provision of the Act, or whether the burden is upon the accused to show that his building is not inconsistent with any provision of the Act.