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Emperor Vs. Chhaganlal Motiram Mehtaji - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberCriminal Application for Revision No. 441 of 1926
Judge
Reported in(1927)29BOMLR733; 103Ind.Cas.602
AppellantEmperor
RespondentChhaganlal Motiram Mehtaji
DispositionApplication dismissed
Excerpt:
.....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. 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..........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.....
Judgment:

Fawcett, J.

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. 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. Ramrao I.L.R. (1921) 45 Bom. 1151: 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, Article 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, Article 828).

4. The above relates merely to the construction of Sub-section (5) of Section 96. We still have to consider whether the effect of the proviso to Section 161(1) necessitates a qualification, by enacting that the prosecution must be within six months of the time, when the alleged offence was first committed. Sir Lawrence Jenkins, when Chief Justice at Calcutta, seems to have been inclined to answer that question in the affirmative, because of the use of the words 'next after the commission of such offence' implying that the six months should be from the very commencement of the offence in question. He did not, however, actually decide that point, because the decision of the Court was on a different question. I refer to Narain Chandra Chatterjee v. Corporation of Calcutta (1909) I.L.R. 37 Cal. 545, 548. The decision refers to an analogous provision in Section 631 of the Calcutta Municipal Act (Bengal III of 1899). This particular point is only of importance in this case, if it is held that the offence was first committed, when the foundations were begun; because, the walls, as I have alluded to, have undoubtedly been begun within six months of the date in December 1925. Therefore, it is necessary to consider whether the building of the walls that is complained of must be held to include the making of the foundations, so that the offence was first committed in December 1924. I have already dealt with that point to some extent, but I come back to it again.

5. Mr. Thakor argues that Section 96(5) should be construed so as to make the offence begin when the foundations were started, at any rate in a case like this, where the whole building is alleged to be in contravention of the provisions of Sub-section (5). I do not think that this is in accordance with what the Legislature has intended. Section 96 must be read with Section 48(1)(n), which specifically refers to different stages of a building, viz., (1) foundations, (2) plinths, (3) walls, (4) roofs and chimneys. The Municipality's by-laws accordingly contain separate provisions regarding foundations, plinths and walls (Nos. 12 to 21). A building does not begin to take an ordinary visible form till it gets above ground level : and on this account the Patna High Court even held that there could not be a conviction for merely laying a foundation under Section 234 of the Bengal Act III of 1884: Shiv Dutt Ray v. Satish Chandra Ghosh (1919) 20 Cr. L.J. 626. A Municipality might well stay its hands and not prosecute, while foundations are being made, because nothing that is done under ground will affect the Municipal administration in the ordinary way. But it is a different thing when the building takes shape above ground. Therefore, in my opinion, there are adequate grounds for saying that the Municipality are entitled to prosecute separately regarding the making of these two walls; and as these began within six months of the complaint, the prosecution is not time-barred, even if the view favoured in Narain Chandra Chatterjee v. Corporation of Calcutta I.L.R. (1909) 37 Cal. 545 is correct.

6. However, supposing that I am wrong in this view, that would not necessarily dispose of the case. The question would arise whether the conviction should not be altered to one under Section 155, in respect of accused's failure to comply with the notice of October 23, 1925, that he should stop the work of building on receipt of the notice. This, of course, assumes that the notice was a lawful one-a point which has not been discussed before us; but, if the building was in contravention of what is mentioned in Section 96(5), then the notice will be one authorized by Clause (a) of that sub-section, so that the offence will fall under Section 155. This will also be covered by the allegations in the complaint and the evidence in the case. (Cf. the remarks of the Magistrate at p. 13 of the paper-book). But, in my opinion, for the reasons that I have already given, the objection as to limitation fails.

7. On the merits several other objections have been raised. The main objection really comes to this, that the Chief Officer of the Municipality was deliberately delaying the passing of orders in this case with a view to keeping matters in suspense until the Municipality had sanctioned the proposed alignment of the street, on which this building abutted, under Section 91A of the Bombay District Municipal Act. It is contended that, instead of making one demand for further particulars, which could have included all the demands of that kind which were made at different intervals, he did this in compartments, taking care that each particular demand would prevent the petitioner getting the benefit of a right to proceed to build under Section 96(4). It is contended by Mr. Thakor that, in doing this, he acted both illegally and arbitrarily, so as to make the orders illegal, and that therefore there was no offence committed under Section 96(5). No doubt, there are rulings of this Court that justify 'our interference where it is clearly shown that a Municipality, or other public body, has acted capriciously, arbitrarily or unreasonably to the prejudice of the applicant. In this particular case, the Sessions Judge has considered the point and come to the conclusion that the orders in question were within the powers of the Municipality, and cannot be invalidated by reason of an intention to get the alignment sanctioned before permission was given. He has considered some authorities on the subject and holds that the delay in this case was not so great as to make the action of the Municipality arbitrary and capricious ; also that it is not a case where the Municipality has made demands for particulars, which it was not empowered to make under the Act. I am not satisfied from the arguments of Mr. Thakor that this view is wrong. It is quite clear that a Court of law is not entitled, in a case of this kind, to go into the question of the exact motives with which the Municipality or an officer of the Municipality has acted, provided that the action taken is in accordance with law. The question of motive then becomes irrelevant: cl Municipal Board of Benares v. Bihari Lal I.L.R. (1926) All. 560 and Davis v. Bromley Corporation [1908] 1 K.B. 170. This, I think, very much applies to this case. No doubt the applicant can reasonably complain that his building was improperly delayed on account of this question of alignment; and it might have been better if the Municipality had acted tinder the powers conferred under Section 96(2) and passed an order that the work could not be proceeded with until the questions connected with the respective location of the building and the street-as proposed to be widened-had been decided to their satisfaction, But the action taken, in substance, comes very much to the same thing; and so long as the Chief Officer had the legal power to make the demands for further particulars that he did, I do not think that there is any ground for our interference in revision.

8. Coming to the question whether the Chief Officer had such powers, Mr. Thakor has contended that Sub-section (3) of Section 96 contemplates one demand for further particulars, which must be made within a month from the receipt of the notice, and that, if that demand is complied with, then the Municipality can make no further demand for any particulars. He contends that the words 'further orders' in Clause (b) of Section 96 (4) mean orders of the kind referred to in Sub-section (2) and do not include any demand for further particulars I do not myself think that this construction should be accepted. It would, in my opinion, unduly limit the words 'further orders.' It may, for instance, be found after the receipt of further particulars in accordance with a demand in Clause (b) of Sub-section (3) that further particulars are still required to enable the Municipality to give a proper decision upon the application to be allowed to build, and such a construction would, I think, unduly restrict the powers of the Municipality, by debarring it from calling for any such further particulars. The demands in this case were made in the form of orders to the applicant to furnish certain particulars, or to show cartain things, or to correct certain plans, and in my opinion this falls within the meaning of 'further orders,' unless the provisions of the section clearly show that this would be a wrong construction. I cannot find anything in the section which justifies such a limitation. On the contrary, I think that the wide terms of this subsection go against such a contention.

9. Before I leave this point, I would add that this is not a case, where the applicant himself was free from blame. The form of notice under Sub-section (1) of Section 96, prescribed by the by-laws at p. 77 of the book, required him to produce his sanad and to furnish information not only about proposed cess-pool and privy sites, but also the present location of any privy or cess-pool, and he omitted to give this information that he was subsequently called upon to furnish. It is not a case where the Chief Officer was clearly seeking some unjustifiable pretext for making those further demands.

10. The next objection is that the order of September 13, 1924, calling upon the applicant to send a modified plan, excluding certain land which fell within the alignment and had been shown as proposed to be built upon, was illegal. Both the lower Courts have rejected this contention. It seems to me that the words 'all information they may require regarding...the location of the building with reference to any existing or projected streets' in Section 96(1)(b) are wide enough to include this particular demand. The provisions of Sub-section (3) of Section 91-A expressly declare that 'no person shall construct, or without the permission of the Municipality...re-construct any portion of any building within the regular line of the public street,' and the alignment had then been sanctioned by the general body of the Municipality. The Chief Officer has therefore acted in accordance with the provisions of the law in requiring that the plan previously submitted, which showed that part of the building would go beyond the alignment, should be modified. Therefore, I think, this objection also fails. I do not think that it is covered by the words 'regarding the limits...of the proposed building' in Sub-section (1) of Section 96, as contended by Mr. Mehta, because that refers to the limits of the building apart from any question as to its location with reference to any existing or projected streets.

11. The only other objection is that the applicant was not liable to be prosecuted and convicted, as he was merely a clerk of the owner of the land and the building. That objection has been fully dealt with in the lower Court, and I agree with what the Sessions Judge has said on the point. Therefore, the application, in my opinion, fails and I would dismiss it.

Patkar, J.

12. I agree.


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