EMPEROR Vs. HAR PRASAD

JUDGEMENT

(1.) This is a reference by the learned Sessions Judge of Mainpuri recommending that a conviction and sentence passed by a Magistrate under Section 307, U.P. Municipalities Act, 1916, be set aside. The facts are that there was a certain plot 2357 situated within the limits of the Mainpuri Municipality.

(2.) In this plot there is a nallah through which the drainage of that locality passes. The accused Har Prasad alias Lallu is alleged to have started making a certain construction which encroached upon the nallah, partly blocking it up and interfering with the drainage. The Municipal Board issued a notice to him under Section 186, Municipalities Act, which was served upon him on 30 October 1928, requiring him to stop immediately the construction which he was making without permission. The accused did not comply with this notice which admittedly was served upon him.

(3.) On 21 June 1929, a second notice was served upon him by the Municipal Board under Section 211 ordering him to remove the construction, which was encroaching upon the public drain, within one month. The accused neglected to comply with this notice also. The Municipal Board thereupon instituted the prosecution under Section 307, for failure to comply with the two notices. The case was tried summarily. It was proved and admitted that the accused had been served with the two notices issued by the Municipal Board. It was also proved that he had not complied with the notices. The accused maintained that he had not made any encroachment on the public drain and therefore the Municipal Board had no jurisdiction to issue the notices. This was his only ground of defence. The trial Court held, that, as the accused was entitled under the Municipalities Act, to appeal to the District Magistrate under Section 318, if he had any objection to complying with the notices served upon him, and as he had failed to avail himself of that remedy, the criminal Court was precluded under Section 321 from considering the question whether the notices were valid or invalid. The result was that the accused was fined Rs. 15 for each offence.