BALA PRASAD, SECY MUNICIPAL BOARD Vs. MUZAMMIL HUSAIN

JUDGEMENT

(1.) This is a criminal reference made by the District Judge of Jalaun, recommending that the order passed by a Magistrate, Third Class, of that district, acquitting Muzammil Hussain of an offence under Section 185, U.P. Municipalities Act, be set aside. It appears that Muzammil Hussain, who is a wood contractor, erected what is described by the trying Magistrate as "a temporary shed" and by the District Magistrate as a "chappar," without the permission of the Municipal Board of Oral. It is not disputed that the site, on which the shed or chappar stands, is within the limits of Oral Municipality. The accused was prosecuted by the Municipal Board, but was acquitted by this Tahsildar Magistrate of Oral on two grounds namely, (1) that the shed did not abut or was not adjacent to a public street, or place or property vested in His Majesty or in the Municipal Board, and (2) that the shed in question cannot be considered to be a building within the meaning of that word, as defined in Section 2(2), Municipalities Act.

(2.) The Municipal Board moved the District Magistrate in revision and relied upon a certain bye-law which made it necessary that persons desirous of erecting any "building" within the Municipal limits should give notice contemplated by Section 178, Municipalities Act, regardless of the fact that the proposed building does not abut or is not adjacent to a public street or place, or property vested in His Majesty or in the Board. The Beard also impugned the view of the trying Magistrate on the question whether the shed in. question is a building, as defined in the Act. It was argued that the "chappar" of the kind erected by the accused is a. "building," as defined in _ Section 2(2). Both contentions found favour with the District Magistrate, who has made the present reference.

(3.) The learned advocate for Muzammil Husain has referred to a number of decisions of this Court and of other High Courts, which have laid down the rule of practice that ordinarily an order of acquittal, though erroneous, will not be interfered with in revision. Moat of these cases however contain a reservation to the effect that the High Court may and does interfere in case's of an exceptional nature. For the reasons which will be presently-stated I am of opinion that this case is of an exceptional nature. The order of the-trying Magistrate proceeds on a supposition that a certain bye-law doss not exist, though in fact it does. The question involved in the case is one which is likely to arise frequently, and it is highly desirable, in the interest of the public of Oral that no uncertainty should exist on such a question. Section 178, Municipalities Act, provides that before beginning, within the limits of a Municipality, to erect a new building, a person shall give notice of his intention to the Board. Sub-section (2) of that section explains that the notice referred to in Sub-section (1), as required in the ease of a building, shall only be necessary where the building abuts on or is adjacent to a public street or place, or property vested in His Majesty or in the Board, unless by a bye-law applicable to the area in which the building is situated, the necessity of giving notice is extended to all buildings.