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Emperor Vs. Adurji and Bros. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai
Decided On
Case NumberCriminal Application for Revision No. 404 of 1914
Judge
Reported in(1915)17BOMLR212
AppellantEmperor
RespondentAdurji and Bros.
Excerpt:
.....which was described as a shop. the house was accordingly built; but the whole of it was used as a dwelling-house up to 1911. in that year, however, the room was used as a shop, which user continued down to october 1913, when it was again used as a dwelling-house along with the rest of the building, for this altered use, the accused were convicted under section 96(5) of the bombay district municipalities act, in that they converted 'into a place for human habitation' a 'building not originally constructed for human habitation' without giving notice to the municipality. the accused having applied to the high court :-;setting aside the conviction and sentence, that the words 'conversion of any building' in section 96, explanation, implied some change in the building itself and did not..........mahableshwar in the year 1903. he built what he obtained permission to build, but he used it as a dwelling-house and not as a shop up to november 1911. thereafter he used the principal room, the biggest room i gather, as a shop, and continued so to do until october 1913. then he let the whole building to a tenant and the whole of it was used by that tenant as a dwelling-house. he has been convicted on these facts of what may be very correctly described as the conversion of a shop into a dwelling-house without permission. if such a conversion comes within the terms of section 96 of the district municipalities act, then the conviction is correct. that section was held to apply both by the trying magistrate and by the sub-divisional magistrate who heard the case in appeal. the question is.....
Judgment:

Heaton, J.

1. This case has been very carefully argued and appears to be regarded as one of some importance. What happened was that the applicant obtained leave to build a shop in Mahableshwar in the year 1903. He built what he obtained permission to build, but he used it as a dwelling-house and not as a shop up to November 1911. Thereafter he used the principal room, the biggest room I gather, as a shop, and continued so to do until October 1913. Then he let the whole building to a tenant and the whole of it was used by that tenant as a dwelling-house. He has been convicted on these facts of what may be very correctly described as the conversion of a shop into a dwelling-house without permission. If such a conversion comes within the terms of Section 96 of the District Municipalities Act, then the conviction is correct. That section was held to apply both by the trying Magistrate and by the Sub-Divisional Magistrate who heard the case in appeal. The question is whether the conversion of a shop into a dwelling-house is such a conversion as is contemplated by the section. There is no doubt that in general the section deals with alterations, actual structural alterations, to buildings. But by an Explanation at the end of the section we find that to erect a building, (and to erect a building is a phrase used in the section) includes, amongst many other things, the conversion into a place for human habitation of any building not originally constructed for human habitation. We have here a building which, we may take it, was originally constructed for a shop and I will take it for the purpose of argument that it was not therefore originally constructed for human habitation. We have a building, therefore, of the kind contemplated by this particular portion of the Explanation. Nevertheless, it seems to me that the words 'conversion of any building' I mean the plain English of the words without going into technicalities or refinements or anything of that kind, necessarily imply some change in the building itself and, therefore, they do not seem to me to cover a case where the building remains absolutely unchanged and the only thing that is changed is the use or occupation to which the building is put. This view is strengthened by an analysis of Section 96 as a whole. I do not think either, as contended by the Advocate General contrary to the opinion of the Sub Divisional Magistrate, that an offence is made out under Section 155 of the District Municipalities Act by reason of a disobedience such as is contemplated by Clause 2 of Section 96. The particular part of that clause which, it is sought to use, deals with conditions in writing imposed with reference to a building. In this case certain conditions in writing were imposed but not one of those conditions has been broken. At any rate it is not shown that it is so. And I cannot find in this case that the writing implied any condition which has been broken, so that neither directly nor by implication do I think that an offence under Section 155 is made out. Therefore, I think that the conviction must be set aside and the fine, if paid, refunded.

Shah, J.

2. I agree.


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