BRIJNANDAN PROSAD Vs. EMPEROR THROUGH MUNICIPAL BOARD

JUDGEMENT

(1.) This is an application in revision by one Brijnandan Prasad who was convicted under Section 210, Municipalities Act, and sentenced to pay a fine of Rs. 50. Although the Sessions Judge did not agree that an offence under Section 210 had been established, holding that the Magistrate had committed an error in convicting the applicant under this section, nevertheless he maintained the conviction. The trial was a summary one. The record shows that the offence complained of was under Section 185 read with Section 210. Section 185 refers to the illegal erection or alteration of a building; Section 209 refers to the giving of sanction by the board to projections over streets and drains; Section 210 provides the penalty for such constructions made without permission.

(2.) The case against the applicant proceeded rather on the assumption that the offence complained of was one under Section 185 than one under Section 210. It has, however, been submitted in this application that there was an offence under Section 210, and I may therefore dispose of this submission first. The construction under consideration was that of a chabutra in front of the applicant's house. It has been contended that this construction was over a drain. There is on this point the evidence of the Overseer, Ibne Ali, an dthe Executive Officer, Mr. Sardar Ahmad. The overseer said that the accused had encroached on municipal land, but this does not necessarily mean encroachment over a street or drain. He further said that the land in suit adjoined municipal drains which rather suggests that the encroachment is not actually over a municipal drain. The Executive Officer said that there was a kharanja on the land in suit, but whether this was a municipal drain or not is not disclosed.

(3.) The only evidence on the point which directly supports the contention is that of a municipal peon whose final statement in cross-examination, it appears, to be the statement of the peon, Alay Ali though it is shown as the cross-examination of Ibne Ali, is that the accused constructed a chabutra on the road. This evidence bearing on the question whether the accused committed an offence under Section 210 does not appear to have been considered at all by the Courts below. But it seems to me to be impossible to hold on this vague and conflicting evidence that there was such an offence. I am not prepared to hold that the evidence of the municipal peon is sufficient to prove that the construction amounted to a projection over a street.