BAIJNATH RAM Vs. EMPEROR

JUDGEMENT

(1.) This is an application in,, revision by one Baijnath Ram, a resident of Ghazipur, against his conviction by a Magistrate of two separate offences-under Secs.210 and 307, Municipalities Act, (Act 2 of 1916), which has been upheld by the Additional Sessions Judge of Ghazipur. He has been fined Rs. 10 for each offence. The prosecution of the appellant in this case was launched in, rather peculiar circumstances, from which it would appear that the Municipal authorities at Ghazipur did not fully realize their responsibilities in dealing with these civic affairs. The, applicant owned a double storeyed house-abutting on public road running through a market with a drain on each side. The house having been considerably damaged by the earthquake in January 1934, the applicant decided to pull it down and to retract a new one instead. Accordingly, on 15 February 1934, he gave a notice-to the Municipal Board under Section 178,. Municipalities Act, attaching thereto a. plan of the proposed building, as required by the Rules. It is admitted that the plan showed a balcony or projection, on the upper storey and a structure over the drain in the lower storey. The-Chairman of the Board, who received the notice, called for a report in the ordinary course from the Municipal Health Officer, who inspected the locality and objected to the structure over the drain on sanitary grounds.

(2.) In spite of that objection the Chairman proceeded to pass an order on 25 May 1934 sanctioning the proposed building in accordance with the plan submitted by the applicant with the direction that the structure over the drain should be so constructed as not to obstruct the cleaning and flushing of the drain. This sanction was endorsed on the back of the plan submitted by the applicant and was conveyed to him on 28 May 1934. A very important point to be noted about this endorsement is that it was signed not only by the Chairman but also by the Executive Officer. Armed with this sanction, the applicant forthwith started the construction of the building in accordance with the approved plan. On 5 July 1934 some employee of the Municipal Board made a report to the Executive Officer drawing his attention to the fact that in building the new house the applicant had constructed a balcony or projection on the upper storey and had also made some structure over the drain on the margin of the road. On this report, the Executive Officer, who, as noted above, had put his signature on the sanction accorded to the applicant by the Chairman proceeded to pass an order on 18th July 1934 directing that a notice be issued to the applicant asking him to remove the balcony or projection. A notice was accordingly issued on 23 July 1934, but it was not served on the applicant until 2 August, 1934. This notice was confined to the balcony or projection in the upper storey, and the applicant was directed to remove it. Another notice was however issued on 2 August, and was served on the applicant on the same date referring both to the balcony or projection and the structure over the drain and directing him to stop the construction of the front portion of his building. The fact that these notices were duly served on the applicant but he did not comply with them is not denied, though with reference to the latter notice directing him to stop further construction of the front portion of the building it is contended-and not without some force that by the time it was served on him the construction of that portion had already been completed. On 11 August 1934, a third notice was issued to the applicant asking him to show cause why he should not be prosecuted for failing to comply with the notices already served on him and why the balcony and the structure over the drain, which he had constructed without obtaining a proper sanction, should not be demolished. In answer to that notice, which was served on him on 13 August, the applicant protested that the construction in question had been made in accordance with the plan sanctioned by the Board and had been completed long before. The Executive Officer then proceeded to file a complaint against the applicant under Secs.210 and 307, Municipalities Act, which ultimately resulted in his conviction as mentioned above. The applicant's defence, which has been rejected by both the Courts below is, firstly, that the construction in question having been made in accordance with the sanction of the Board duly obtained by him he cannot be held guilty of an offence under Section 210 of the Act, and, secondly, that the Board being bound by its own sanction had no power to get those constructions demolished, and hence the notices issued by the Board were not valid notices under the Act. With reference to one of those constructions, viz., the structure over the drain, it is further pleaded that the Board had no right of action, inasmuch as the drain was the private property of the applicant.

(3.) The trial Court found (1) that having regard to the nature of the construction in dispute, the sanction obtained by the applicant was not a proper one, inasmuch as it was his duty, under Section 184(2) of the Act, to make a separate application for sanction in respect of those constructions which fell within the purview of Section 209, and his failure to do so made him liable to the penalty provided for in Section 210 and (2) that in view of the definition of "street" as contained in Section 2(23), it must be presumed that the drain in question was part of the public road on which the applicant's house abuts, and that presumption had not been rebutted by the oral and documentary evidence produced by the applicant to support his alleged title.