VYRA MUNICIPALITY Vs. FULCHAND GANPATLAL SHAH

JUDGEMENT

(1.) This is an appeal by the Municipality of Vyara under Section 417(3) of the Code of Criminal Procedure against an order of acquittal passed by the Judicial Magistrate, First class, Vyara, District Surat. At the instance of the Vyara Municipality the respondent Fulchand was tried before the Judicial Magistrate, First Class, Vyara, for an offence under section 96(5) of the Bombay District Municipal Act. The learned Magistrate acquitted the accused and against the order of acquitted the accused and against the order of acquital the Vyara Municipality has obtained special leave to appeal to this court.

(2.) The facts which give rise to the complaint are briefly these. The respondent is the owner of a building No. 1657 in the town of Vyara. He desired to repair the building and to construct a Kitchen. A bath room and a lavatory at the rear of the building. He, therefore submitted an application to the Municipality of Vyara for permission to carry out the repairs and to put up the proposed construction. With the application the respondent submitted the plans required by the rules framed by the Municipality. The Municipality granted sanction to the respondent to carry out the repairs and to make the construction subject to three conditions (I) that the respondent should not put up any construction in the area which the Municipality had shown in red colour in the plan, exhibit, 7. Submitted by the respondent (ii) that all the construction was to be made in the area to the west of the blue line shown in the plan (iii) that the construction should be carried out in accordance with the plan which was sanctioned by the Municipality. The respondent ignored the first annd the second conditions imposed by the Municipality and put up a structure on the area ``shown in red colour'' in the plan. This breach having come to the notice of an Inspector of the Municipality, a complaint was an filed against the respondent for an offence under Section 96(5) of the Bombay District Municipal Act. 3 of 1901 in the court of the Judicial Magistrate. First Class, Vyara. The respondent contended interalia that a sanction to prosecute him as required by S. 161 of the Bombay District Municipal Act was ot granted by a competent authority, that the complaint was barred because it was not filed within six months from the date on which the offence was alleged to have been committed, and that the conditions imposed by the Municipality refusing permission to build upon the area show in red colour in the plan exhibit 7, were illegal and not binding upon him and accordingly in putting up a construction upon that area he did not contravene the provisions of the Bombay District Municipal Act. The learned trial Magistrate upheld the contentions raised by the respondent about the validity of the sanction and the right of the Municipality to impose the impugned conditions and acquitted the respondent.

(3.) The Vyara Municipality is governed by the Bombay District Municipal Act 3 of 1901., Section 96 of the Bombay District Municipal Act provides by the first sub section, in so far as it is material: