MUNSHI LAL Vs. EMPEROR

JUDGEMENT

(1.) This is a reference made by the Additional Sessions Judge of Aligarh with the recommendation that the order of conviction passed by a Magistrate under Section 307, United Provinces Municipalities Act, 1916, be quashed. The applicant, whose application has been approved by the Additional Sessions Judge, is in possession of one of the plots which have been cased out by the Municipal Board of Etah on payment of tahbazari or ground cess from day to day. On this plot there is a chabutra which has cither been built by the applicant or, as he contends, has been standing on the plot for some years. Neither of the Courts has come to a definite decision on the question of whether the chabutra itself, which is a masonry construction, is an old or new one; but the reason why the Board took action was that he recently set up a shed on the chabutra, and the Board there-tore issued a notice to him, under Section 186 of the Act on 7 July 1932 to remove the chabutra and the shed. He did not do so, and he was therefore prosecuted and fined under Section 307 of the Act. One of the points to which the Judge has referred, and which has been pressed in argument before me, is that as the Board sent to the applicant a second notice on 16 July, directing the applicant to quit the land it had waived the first notice of 7 July. I have not however been able to understand how the second notice could operate as a waiver, for it appears to deal with a separate and distinct matter. The applicant, as I have said, was in possession of the plot on payment of a tahbazari dues. He might be able to remain in possession of the plot even if he had to remove the chabutra, and although the Board may have issued a notice to him to quit on account of his failure to comply with their direction to remove the chabutra, it does not appear to me that by directing him to quit the Board waived their right if indeed such a right exists to have the chabutra removed.

(2.) The real crux of the problem is whether the chabutra with the shed erected on it is a "building" as defined in Section 2 of the Act. The notice given, by the Board was issued under Section 186 under which it has authority to direct the owner or occupier of any land to stop the erection, re-erection or alteration of a building or part of a building in any case where the Board Considers that such erection, re- erection, alteration, construction or enlargement is an offence under Section 185 and may in a like manner direct the alteration or demolition, as it deems necessary, of a building, part of a building or construction as the case may be. It has not been suggested that, if the construction is a building, the Board was not justified in considering that the erection or alteration & etc., was an offence under Section 185,. but it has been strongly contested that the construction is not a building. A building is defined in Section 2 of the Act as: a house, hut tiled or other roofed structure for whatsoever purpose and of whatsoever material-constructed and every part thereof but shall not- include a tent or other such portable and merely temporary shelter.

(3.) The Magistrate without considering in great detail the definition of the word "building" held that as the applicant was only entitled to possession, of the plot from day to day, he had no right to execute a work of a permanent character, and that as he had been repairing the chabutra and had put a shed upon it, he certainly had been executing a work of a permanent character. The Judge, on tire other hand, held that: the mere putting of pal for temporary shelter from the sun would not make it a shed or a building.