EMPEROR Vs. CHHAGANLAL MOTIRAM MEHTAJI

JUDGEMENT

(1.) In this case, the applicant has been convicted of a breach of Sub-section (5) of Section 96 of the Bombay District Municipal Act, 1901 (Act III of 1901) and sentenced to pay a fine of Rs. 121. That conviction was confirmed on appeal by the Sessions Judge of Surat. Our interference is sought on various legal points.

(2.) The first point urged is, that the prosecution was barred by limitation, in view of the proviso to Sub-section (1) of Section 161 of the Act. That proviso says, that "no prosecution for an offence under this Act shall be instituted except within six months next after the commission of such offence." The material facts in this case as regards this building are, that the accused gave notice about wanting to build on March 31, 1924. The Municipality made various demands for particulars, which need not be now specified; but, without the Municipality having given any permission to build, the applicant began digging for the foundations of the proposed building. That was in December 1924. The foundations were filled up sometime in July 1925. Then two walls were built. One on the north was completed sometime in October 1925, and one on the south was begun in November 1925. The complaint was filed on December 19, 1925. The contention that has been put before us by Mr. Thakor for the applicant, is that the foundations were actually begun in December 1924, that that was the starting point of the building, and as the prosecution was in regard to a building without permission, which was first begun in December 1924, the prosecution that began about a year later is time-barred. On this point, both the Magistrate and the Sessions Judge hold that digging the foundations, or filling up those foundations, did not constitute making a building, having regard to the definition of a building in Clause (7) of Section 3 of the Act, and they held that, as the north and south walls were built within six months of the complaint being filed, the prosecution was in time. Clause (7) of Section 3 says: " Building shall include any hut, shed or other enclosure, whether used as a human dwelling or otherwise, and shall include also walls, verandahs, fixed platforms, plinths, door-steps, and the like." The Magistrate points out that the word foundation is not in this definition and considers the word plinths clearly indicates that only the structure above the ground level is contemplated. The Sessions Judge says that the Magistrate has rightly held; that digging the foundation, or filling it in, did not constitute making a building, as that term is defined in the Municipal Act; also that it is only when the wall to the north was built that the petitioner infringed the provisions of Section 96, and that the first indication of this construction was, he says, given on October 20, 1925, when the northern wall was constructed. Accordingly, he agreed with the Magistrate that the prosecution was in time. With regard to this reasoning it must, at the outset, be remarked that the definition in Section 3(7) does not use the word means but the word includes : therefore, the definition is not intended to be an exhaustive definition. No doubt, it has been held that the word include can be equivalent to mean and include : see, for instance, Dilworlh V/s. The Commissioner of Stamps [1899] A.C. 99, 106. But, in the present case, there is no scope for any such view. The definitions in this Section 3 use the word mean when that is the intention, for instance, all the definitions in Clauses (1) to (5) use the word mean ; then the next two use the word include instead of mean ; and consequently, there is a clear indication of an intention that the word include should not be equivalent to the word mean. There is, 1 think, a clear danger in holding that a building should not be held to include its actual foundations. Primarily, the word building is quite wide enough to include the foundations, which, in fact, are an essential part of a permanent building. It seems to me absurd, on the face of it, to say that the foundations are not therefore in-eluded in the word building and the Municipal Act, 1901, in my opinion, clearly shows that foundations are intended to be covered. Thus in Section 48(1)(n) we find power given to the Municipality to make by-laws regulating, among other things, the structure and dimensions of plinths, walls, foundations, roofs and chimneys of new buildings. Again, Section 96(1)(6) requires the person proposing to make the new building to furnish a plan showing, among other things, the foundation of such building, and information can be required about drains and sewers, which would ordinarily be below the ground level. The Surat Municipality by-laws, which refer to Section 96, in fact include by-laws relating to the foundations of a building. Nos. 12 and 15 at p. 60 of the book of by-laws deal with the case of foundations. No. 15 refers to Section 96(6) about inspecting the building from time to time, and prescribes for inspection of the building at different stages of the erection of the building, such as (1) digging for foundations, (2) filling in foundation, and (3) construction of plinth. If the Sessions Judge's view is correct, then it would be open to question, whether these by-laws are legal, with reference to Section 96, though in fact they are covered by the express provisions of Clause (n) of Sub- section (1) of Section 18. In my opinion, the lower Court's view is erroneous and cannot be regarded as a proper basis for holding that the prosecution is in time.

(3.) But it does not follow from this that the whole prosecution is time-barred. Section 96(5) says, "whoever begins or makes any building", etc. If the complaint in the present case was merely that the building was begun without permission, then, no doubt, it can be said that the foundations were laid beyond the six months of the complaint, that is required by the proviso to Section 161, But, it is clear that the actual complaint also covered the building of the two walls without permission, for instance, the Magistrate in his judgment at p. 15 of the paper book speaks of the building of the south wall, and adds, "for which this complaint has been lodged". The facts alleged in the complaint, as reproduced in the Magistrate's judgment, clearly covered the building of these two walls, and therefore the prosecution is not only one in connection with the "beginning" of the building, but also with regard to the "making" of a building such as is referred to specifically in Sub-section (5). It is obvious that the erection of a wall of a building is a distinct stage from the stage of laying its foundations; and it has been ruled by this Court that house-walls, as well as compound walls, are covered by the word building in Section 96: cf. Emperor V/s. Ramrao (1921) I.L.R. 45 Bom. 1151, 1153: s.c. 23 Bom. L.R. 831. Therefore, the making of the building in question in regard to the north and south walls can clearly be said to have been begun within six months of the date of the complaint, and prima facie the prosecution, so far as it related to that particular part of the building, is in time. I think that due effect should be given to the words or makes in Section 96(5). They show that it is not only the mere beginning of a building that is punishable, but its continuance even to completion without the requisite permission, or in defiance of legal orders. I may observe that the wording of this sub-section follows English precedents, e.g., the Public Health Acts Amendment Act, 1907, (7 Edw. VII, c. 58), Section 13, which penalizes a person who " begins or erects" a temporary building without the prescribed permission. (See Halsbury's Laws of England, Vol. XXIII, Art. 828, at p. 425), If a person is making a building in any contravention of the kind specified in Section 96(5) on any particular day, he is, in my opinion, committing an offence, although the making may have begun on a previous day. In other words, it is a continuing offence, and it has, in fact, been held in England that continuing to build in contravention of Municipal by-laws can be a continuing offence (Cf. foot-note (d) at p. 425 of Halsbury's Laws of England, Vol. XXIII, Art. 828).