STATE OF BIHAR Vs. ISHRI BHAGAT

JUDGEMENT

(1.) This is one of a batch of six appeals preferred by the State of Bihar under Section 417, Criminal P. C against the acquittal of the respondent by Mr. K.P. Dubey, Magistrate with second class powers at Bhagalpur, which have been heard together for the sake of convenience as they involve more or less identical questions of law. The respondent was prosecuted under Section 180, Clauses 2, 3 and 4, of the Bihar and Orissa Municipal Act, being Act 7 Of 1922, for "keeping a pucca platform in his building No. 85 situated in Bazar Road, Ward No. 2 Mohalla Bazar within the limit of Colgong Municipality in the year 1949-50 and also for not paying the license fee in respect of the aforesaid platform for the said year, and also for not renewing the license fee for the same platform in the said year." A petition of complaint, Ex. 8, was filed before a Magistrate at Bhagalpur by Sri S.N. Mukherjee, M. O. in-charge, bearing date 31-3-1950. It contained also a reference to the fact that prosecution was sanctioned by the Chairman, Col-gong Municipality.

(2.) The Municipality put in evidence the necessary documents to prove that the respondent kept the platform as alleged during the period in question (Exs. 1, 2 and 2/1) and the relevant resolutions passed by the Municipal Board on various dates (Exs. 3, 4, 5, 6 and 9) and a copy of memo from the Senior Deputy Collector to the Chairman, Colgong Municipality, dated 25-12-1947 (Ex.7) to show compliance with the formalities and the requirements of law before prosecution could be launched by the Municipality against the respondent.

(3.) The respondent raised a number of pleas against the prosecution case to show that no offence was committed. The main plea, however, was that the respondent derived his interest in the house in holding no. 85, and the platform appertaining thereto from Ram Charan Sahu, who executed a kabuliyat in favour of the Colgong Municipality on 11-7-1902 by which he was authorised to construct the platform or arches over the drain on condition of paying an annual rental of Re. 1/-. It was provided in that kabuliyat that the executant would have no objection to the arches being demolished if they were disapproved at any time by the Government or the officers, and the Municipality would have absolute right to undertake the demolition. Accordingly, it was urged on behalf of the respondent that it was not necessary for him to take out any license for the maintenance of the platform or arches in question, nor was it necessary for him to pay any fee for the purpose, over and above the amount mentioned in the kabuliyat as the annual rental.