Patna High Court
Shiv Dutt Ray vs Babu Satish Chandra Ghosh on 29 May, 1919
Equivalent citations: 52IND. CAS.386, AIR 1919 PATNA 490
JUDGMENT Jwala Prasad, J.
1. This is a Referenda by the Judicial Commissioner of Chota Nagpur under Section 438 of the Code of Criminal Procedure, recommending that the conviction of the accused under Section 273 of the Bengal Municipal Act, III of 1884, by the Deputy Magistrate of Giridih by his judgment, dated the 10th February 1919, be set aside. The reference is opposed by the learned Assistant Government Advocate.
2. Mr. Yunus appears in support of the reference. The principal ground upon which the recommendation has been made by the learned Judicial Commissioner is that the place where the building in question is alleged to have been created by the accused is situate in a village called Pachamba adjoining the Giridih Municipality, to which the Building Regulations made by the Municipality of Giridih under Section 241 of the Bengal Municipal Act, and sanctioned by the Local Government under Clause 2 the section, do not apply. This ground does not commend itself to us. The Municipality of Giridih was created some time in the year ]902 and thereupon the Bengal Municipal Act, III of 18S4, applied to and had its effect in the area declared to be within the Giridih Municipality by virtue of Section 8 of the Act.
3. Under Section 220 of the Act the provisions of Part VI only apply to a Municipality when it is expressly extended thereto by the Local Government in the manner provided by the succeeding sections. In November 1902 some time after the creation of the Giridih Municipality, Part VI of the Act was extended to the Municipality by Notification No. 2703 (M). This Part VI deals amongst other matters with rules relating to the erection and re erection of buildings within a Municipality. Section 241 in that part provides for 'rules to be made by Commissioners at a meeting to regulate the erection of houses, not being huts, within the Municipality in respect of all or any of the matters enumerated therein. For the first time certain rules under this section were framed by the Giridih Municipality in the year 1918, which received the sanction of the Local Government under sub-section 2 of the section on the 20th May 1918. Two days later, that is, on the 22nd May 1918, Pachamba was included within the Giridih Municipality by Notification No. 6867 (M) made and published under sub-section 2 of Section 9 of the Act, From the date of the aforesaid notification the area included within what is called Pachamba village became part of the Giridih Municipality, and by virtue of Section 9, Clause (c), read with Section 7 the Bengal Municipal Act applied in its entirety and with full force to the added area Pachamba from the said date. No doubt the Commissioners at a meeting are empowered to recommend to Government for excluding from a Municipality any local area comprised therein or to withdraw any Municipality, from the operation of the Act; but so long as this is not done, all ' the provisions of the entire Act in force in a Municipality, at the time when its area is extended, apply to the newly added area. It has already been shown that Part VI as well as the Building Regulations framed by the Giridih Municipality and sanctioned by the Local Government under Section 241 of the said part were in full force two days before Pachamba was included within the Giridih Municipality and hence they would apply to the added area Pachamba, within the ambit of which the site on which the accused is said to have commenced the erection of the building in question is situate. Under Clause (3) of the section, the building rules and regulations acquired the force of law from the 20th May 1913, when they received the sanction of the Local Government. The accused was amenable to and would have been liable for any contravention of the said rules in erecting the building in question. Had the reference rested solely upon the ground stated by the Judicial Commissioner, that Part VI or Section 241 did not apply to the added area Pachamba. we would have had no hesitation in rejecting it and upholding the conviction of the accused by the Deputy Magistrate.
4. It appears, however, that the accused committed no offence at all under Section 241 of the Act. The Magistrate has convicted him under Rule 13, Clauses 1 and 2 of the Building Regulations published in the Bihar and Orissa Gazette, dated the 20th May 1918.
5. Under Clause 1 of that rule no building is permitted to be erected within two feet of a public road, lane or drain. Under Clause 2 the distance between the perpendicular from the eaves of a house to the nearest boundary of the holding on which such house has been or is about to be erected must be three feet and such place must b9 kept 'free from all obstructions.
6. None of the Clauses 1 and 2 of Rule 13 apply to the present case, as there is nothing to show that the accused in any way contravened the requirements of these clauses, inasmuch as the building has not been constructed and there is no building in existence. The evidence on behalf of the prosecution shows that the accused had only laid the foundation a few feet below the ground level, the brickwork of which had not even reached the plinth level. There is nothing to show on behalf of the prosecution what kind of building the accused was going to construct and whether the main building would be two feet from the public road, or where the eaves of his house when complete would be situate, or whether a perpendicular from the eaves of that house would be situate within or beyond the prescribed limit of three feet from the road, There is no building at all at present in existence, nor is it known whether and where the actual building would be. It might be that the accused would only construct a chotera or plinth without any structure upon it. The Municipality did not take steps to enforce the submission of a plan by the accused in order to see whether the proposed building would contravene the provisions of Part VI or any of the rules and regulations framed under Section 241. The prosecution was perhaps started a little too early and without any regard to the provisions of Part VI of the Act. The accused had no right to erect any building without having obtained sanction from the Municipality and without first having submitted a plan of the proposed house to the Municipality and if the Municipality had taken proper steps under-the Act, there would have been a possibility of having from the accused a plan of the house and to know exactly whether the accused was going to contravene the provisions of the regulations in the construction of his house. As the matter stands at present, the accused cannot be convicted. We have no doubt declared that Pachamba, where the site of the present proposed building is situate, is within the Municipality and is governed by Part VI and the Building Regulations framed under Section 211 of the Act, so that if the accused in future contravenes the provisions of the said regulations or the Act in any way by building any house on the site in question or otherwise, he will be amenable to law.
7. The recommendation of the Judicial Commissioner is accepted and the accused is acquitted. The fine, if already realised, must be refunded to the accused.
Atkinson, J.
8. I agree.