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Emperor Vs. Rustomji J. Ghorkhodu - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberCriminal Application for Revision No. 13 of 1907
Judge
Reported in(1907)9BOMLR363
AppellantEmperor
RespondentRustomji J. Ghorkhodu
Excerpt:
.....section 349b -height of buildings with reference to width of streets -construction of statute-casus omissus.;the accused erected a building which touched on either side of it public streets which ran parallel to each other. the height of the house having exceeded the permissible limits, the municipality required the accused to reduce the height, conformably to the provisions section 349b of the city of bombay municipal act 1888. the accused disobeyed the requisition and he was convicted and sentenced for the disobedience:-;(1) that the building of the kind in question must at all events fulfil the conditions prescribed in clauses 1, 2 and 3 of section 349b with reference to both the streets on which it abuts, even if it did not fall within clause 4 of the section.;(2) that the..........this is a case unprovided for in the act. in other words, according to the argument, it is a casus omissus. r but it is not permissible to create a casus omissus by interpretation save in some case of strong necessity-see per lord fitzgerald in mersey docks and harbour board v. henderson brothers (1888) 13 app. cas, 595 607 and taking a reasonable view of it, we think a building of this kind must at all events fulfil the conditions prescribed in clauses 1, 2 and 3 with reference to both the streets on which it abuts, even if it does not fall within clause (4) of section 349b. these provisions of the act are intended in the interests of public health, and the court ought to construe them so as to advance that object. under these circumstances the conviction and sentence can be.....
Judgment:

Chandavarkar, J.

1. The wording of Clause (4) of Section 349B is not free from ambiguity and there is considerable force in what Mr. Setalvad has suggested as its proper construction. But assuming, without deciding, that that is the only construction of which the clause is susceptible, the act complained of as a breach of the law on the part of the petitioner must, we think, fall within the other clauses of Section 349B. Mr. Setalvad argues that as his client's building is situate between two streets running parallel, this is a case unprovided for in the Act. In other words, according to the argument, it is a casus omissus. r But it is not permissible to create a casus omissus by interpretation save in some case of strong necessity-See Per Lord Fitzgerald in Mersey Docks and Harbour Board v. Henderson brothers (1888) 13 App. Cas, 595 607 and taking a reasonable view of it, we think a building of this kind must at all events fulfil the conditions prescribed in Clauses 1, 2 and 3 with reference to both the streets on which it abuts, even if it does not fall within Clause (4) of Section 349B. These provisions of the Act are intended in the interests of public health, and the Court ought to construe them so as to advance that object. Under these circumstances the conviction and sentence can be supported upon the grounds above stated, if not on those on which the Magistrate has proceeded. The application must, therefore, be rejected.


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