EMPEROR Vs. HAZARI LAL

JUDGEMENT

(1.) HAZARI Lal a resident of Allahabad, has been convicted of disobeying a written notice lawfully issued by the Municipal Board of Allahabad, under the powers conferred upon it by the United Provinces Municipalities Act of 1900. He comes to this Court in revision, and the one substantial point raised by him is that the prosecution has not proved that the notice which he is alleged to have disobeyed was a notice lawfully issued by the Municipal Board of Allahabad, under the powers conferred upon it. If this were a point taken for the first time in revision, I am not certain that I should have considered it my duty to go into it. I find, however, that this defence was in substance taken before the court below and that the trying Magistrate refused to entertain it. The Magistrate was of opinion that, if he had entered into this defence, he would be permitting the accused before him to contravene the provisions of Section 152 of the Municipalities Act. That section, however, applies to a notice issued by the board, and the point taken in the present ease is that the accused had received no notice issued by the board under the powers conferred upon it by the Act. The paper which was served upon HAZARI Lal on the 28th of August, 1913, contained a direction with which he admittedly failed to comply within the period prescribed by it. It did not purport on the face of it to be a notice issued by, or by order of the Municipal Board, but on behalf of the member in charge of ward no. 4, and it was signed by a single member of the board. The notice was one covered by the provisions of Clause 5 of Section 87 of the Municipalities Act, that is to say, it was a notice such as the Municipal Board was empowered to issue under the abovementioned provision of the law. The only question, therefore, was whether the board had issued this notice or not. The powers conferred upon the Municipal Board by (his section are important, and the legislature found it necessary by the Amending Act No. I of 1907, to make special provision for the circumstances under which alone these powers could be delegated. I think the accused in this case was entitled to set up the defence that the paper served upon him was not a notice issued by the Board or by the authority of any person to whom the powers exercisable by the Board as a whole had been lawfully delegated. The defence having been set up, the Magistrate ought to have inquired into it and called upon the prosecution to produce evidence sufficient to satisfy him on this point. I, therefore, set aside the conviction and sentence in the case and return the record to the court below with the following directions. The Magistrate will take up the case at the point at which it stood when the accused entered his defence, and will require the prosecution to produce evidence to satisfy him, if possible, that the notice served upon HAZARI Lal on the 28lh of August, 1913, was a notice issued by the authority of the Board or by the authority of persons to whom the powers of the Board under Section 87, Clause 5, of the Municipalities Act of 1900 had been lawfully delegated.