EMPEROR Vs. ONKARDAS KISHOREDAS WANI

JUDGEMENT

(1.) This is an application in revision which raises a question under the Bombay District Municipal Act (Bom. III of 1901). The petitioner is the owner of a house in Nandurbar. The western wall of his house was in a bad state of repair, and the Municipality of Nandurbar issued a notice to the petitioner to take it down. The petitioner thereupon removed the wall and applied to the Municipality for permission to rebuild. That application was properly made under Section 96(1) of the Bombay District Municipal Act. The Municipality gave the permission subject to the condition that the wall should be set back a certain specified distance from the street. The petitioner, however, reconstructed the wall without complying with this condition, and was prosecuted for so doing under Section 96(5) of the Act, was convicted and fined Rs. 10. He appealed to the District Magistrate of West Khandesh and the appeal was dismissed. The petitioner now applies in revision.

(2.) The question turns primarily, I think, on the application of Section 91A(i) of the Bombay District Municipal Act. That section was incorporated, by amendment of the original Act, for the first time in the year 1914, and as originally drafted the added section provided that- it shall be the duty of every Municipality to prescribe a line on each side of every public street within the municipal district and the Municipality may from time to time prescribe a fresh line in substitution for any line so prescribed....

(3.) Then Sub-section (3) provided: Except under the provisions of Section 113, no person shall construct, or without the permission of the municipality under Section 96 reconstruct, any portion of any building within the regular line of the public street. In the year 1920 the Municipality of Nandurbar did prescribe a regular line of the public street in which the petitioner's house is situate, and the building which he has erected does infringe that regular line. But in 1924, by Act IV of that year, Section 91 A of the Act was amended in this sense. It was provided that in Sub- section (1) of Section 91A of the said Act for the word "Municipality" where it occurs for the first time the words "City Municipality and of such other Municipality as may be notified by Government in this behalf" shall be substituted. The effect of that is that after 1924 the duty of prescribing a regular line of street was imposed only upon a City Municipality or a Municipality notified by Government. The Municipality of Nandurbar is not a City Municipality and it was not notified by Government until December 1927. So that between 1924-1927 it was not a Municipality referred to in Sub-section (1) of Section 91A. Then in 1930 Section 91A was again amended in respect of Sub-section (3), the relevant amendment being to provide that a person required to set-back his building with a view to part of his land being added to the street should be entitled to compensation. The Municipality of Nandurbar have not yet prescribed a regular line of the street since 1927 when they were notified under Section 91A of the Act, and it is contended, therefore, by the petitioner that Section 91A does not affect him because at the time when he was prosecuted the Nandurbar Municipality were in fact not within that section.