EXECUTIVE OFFICER, MUNICIPAL BOARD Vs. HARSARAN DAS

JUDGEMENT

(1.) This is a reference by the learned Sessions Judge of Meerut. It arises out of a case under Section 148, U.P. Municipalities Act, in which one Lala Harsaran Das was prosecuted upon a complaint made by the Municipal Board of Ghaziabad. It appears that up till the end of 1937 for a period of more than 12 years Lala Harsaran Das was himself a member of the Municipal Board of Ghaziabad and during this period on two occasions he was the Chairman of the Board for two years. The second occasion was in the years 1936-37. During this period it appears that a vote of non-confidence was moved against him. It is not quite clear from the record whether any motion of non-confidence was actually made with success or whether there was only an attempt on the part of some members to make such a motion. One thing is however clear that in this proceeding one Mr. Ramanuj Dayal took a prominent part and he ultimately became the Chairman of the Board some time early in the year 1938. The complaint which is the basis of the prosecution launched by the Board against Lala Harsaran Das was filed on 19 April 1938, that is, shortly after Mr. Ramanuj Dayal came to occupy the office of Chairman of the Board. The complaint is signed by him as well as by the Executive Officer of the Board. The case set up against Lala Harsaran Das was that on 2 April, 1937 he had made an application to the Board for permission to make certain constructions with a view to enlarge some houses belonging to him and to convert them into a godown. This application was granted by the Board on 17th April 1937 and thereafter he made the necessary constructions but failed to give a notice to the Board within 15 days from the date of completion of those constructions or from the date of occupation of the building as required by Section 148(1), U.P. Municipalities Act, and was consequently liable to punishment under Section 148(2) of the Act which runs as follows: Any person failing to give notice required by Sub-section (1) shall be punished upon conviction with a fine which may extend to Rs. 50 or ten times the amount of tax payable on the said building or enlargement for a period of three months whichever is greater.

(2.) In his defence Lala Harsaran Das admitted the fact that he had made certain constructions after obtaining the necessary sanction from the Board but had failed to give the notice required by Section 148(1) of the Act. He pleaded however that the prosecution launched against him was merely the outcome of personal ill-feeling between him and Mr. Ramanuj Dayal and took shelter behind the fact that the Municipal Board had never before insisted upon a compliance with the provision of Section 148(1) of the Act on the part of house owners who obtained the sanction of the Board for making new constructions or enlarging old ones. He alleged that no case of this kind had ever before been launched by the Municipal Board and that it was a settled practice that the Tax Inspector of the Board used to make periodical reports regarding constructions and enlargements and the Board used to revise its assessment of house tax on the basis of those reports. It may be mentioned here that the buildings which Lala Harsaran Das enlarged in the circumstances stated above were assessed to a tax of Rs. 5-1-0 per annum and that the enlarged building was let out on rent by him to the Crossway Motor Company for use as a godown at a rent of Rs. 50 per mensem with effect from 1st April 1937. On behalf of the prosecution it was suggested that Lala Harsaran Das had deliberately omitted to comply with the requirements of Section 148(1) of the Act because he dishonestly wanted to evade the higher assessment of house tax which was bound to follow if he had given the necessary notice to the Board. The case was tried by a Magistrate of the Second Class who acquitted Lala Harsaran Das on the ground that though the practice upon which he had relied could not modify the law, yet there was nothing to show that he had any dishonest intention in failing to give the required notice to the Board. The learned Magistrate's judgment which is quite brief may conveniently be set out in extenso as follows: Babu Harsaran Das has been prosecuted for giving no information to the Municipal Board of Ghaziabad about the completion of his house as required under Section 148, Municipal Act. The accused has stated that as it was not the practice he gave no information of it to the Board and the Tax Inspector did this duty. It is true as urged by the prosecution that codified law cannot be modified by practice and it can be no defence. But it is to be seen how far he is at fault when it has not been the practice with the owners of the buildings to inform the Board soon after the completion of their buildings. The prosecution has not proved that the allegation is wrong and owners complied with the provisions of Section 148, Municipal Act. It is found from the statements of the Municipal employees who appeared on behalf of the prosecution that the owners of the buildings did not inform the Board of their completion but the Tax Inspector did this duty. In view of this fact, I do not find any mala fide on the part of Babu Harsaran Das and he is not guilty of the charge brought against him. He is acquitted.

(3.) Against this order of acquittal the Municipal Board filed a revision before the learned Sessions Judge of Meerut who has made this reference with the recommendation that the finding of acquittal should be set aside with a direction for retrial of the case by another Magistrate. There cannot be the slightest doubt upon the facts of the case that Lala Harsaran Das committed a breach of law and was consequently punishable under Section 148(2), U.P. Municipalities Act. The finding of acquittal recorded by the learned trying Magistrate cannot but be set aside because it is based upon a wholly wrong principle of law. It appears from the judgment of the learned Magistrate as well as from the explanation submitted by him that he was obsessed with the idea that dishonest intention was an essential ingredient of an offence under Section 148(2), U.P. Municipalities Act. This is obviously quite wrong. Any person who constructs or enlarges a building after obtaining the necessary sanction from the Municipal Board but fails to give notice of completion of such construction or enlargement within the period fixed by Sec. 148(1) of the Act renders himself liable to the penalty prescribed in Section 148(2) of the Act irrespective of his motive, knowledge or intention. In order to establish an offence under Section 148(2) of the Act it is not necessary at all for the prosecution to establish some bad motive or guilty knowledge or dishonest intention on the part of the accused person. I have therefore no hesitation in setting aside the finding of acquittal recorded by the learned trying Magistrate. But the question remains whether having regard to all the circumstances of the case it is proper and advisable to direct a retrial.