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Emperor Vs. Braz H. De Souza - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberCriminal Appeal No. 472 of 1910
Judge
Reported in(1911)13BOMLR494
AppellantEmperor
RespondentBraz H. De Souza
DispositionApplication dismissed
Excerpt:
.....under section 96 of the bombay district municipal act, l901 in that he built up one of the small walls of his house on its old foundation without having previously obtained the permission of the municipality: ;that the accused committed no offence under section 96, for it could not be said as a matter of law that the material reconstruction of a small wall must constitute 'the erection of a building.' ;emperor v. kalekhan sardarkhan (1910) 12 bom. l.e. 1060 distinguished. ;where a term is interpreted in a statute as 'including' &c. the comprehensive sense is not to be taken as strictly defining what the meaning of the word must be under all circumstances, but merely as declaring what things may be comprehended within the term where the circumstances require that they..........whether the interpretation clause, section 3 (7), is to be taken as substituting impliedly for the word 'building' wherever it occurs in the act not merely all erections falling within the ordinary comprehension of the term 'building' but also all other things included within the definition. it is recognised in england to be a rule with regard to the effect of interpretation clauses of a comprehensive nature such as we have here that they are not to be taken as strictly defining what the meaning of a word must be under all circumstances, but merely as declaring what things may be comprehended within the term where the circumstances require that they should (see the judgment of lord denman in queen v. the justices of cambridgeshire (1838)7 a. & e. 480of lord selborne in mem v. jacobs.....
Judgment:

Scott, C.J.

1. The question referred to me may be formulated thus :-Whether the reconstruction of a wall upon its own foundation is necessarily the 'erection of a building' within Section. 96 of the District Municipal Act According to the explanation appended to that section the expression ' to erect a building' throughout Chapter IX includes any material alteration, enlargement, or reconstruction of any building. Whether the reconstrution of a Wall of whatever importance forming part of a house is necessarily the 'erection of a building', depends upon whether the interpretation clause, Section 3 (7), is to be taken as substituting impliedly for the word 'building' wherever it occurs in the Act not merely all erections falling within the ordinary comprehension of the term 'building' but also all other things included within the definition. It is recognised in England to be a rule with regard to the effect of interpretation clauses of a comprehensive nature such as we have here that they are not to be taken as strictly defining what the meaning of a word must be under all circumstances, but merely as declaring what things may be comprehended within the term where the circumstances require that they should (see the judgment of Lord Denman in Queen v. The Justices of Cambridgeshire (1838)7 A. & E. 480of Lord Selborne in Mem v. Jacobs (1885) L.R. 7 l A 481 and of Lord Watson in the Mayor of Portsmouth v. Smith (1885) 10 A. C. 364.

2. In the present case the only complaint is that a small wall was built on an old foundation without the permission of the Municipality. The Magistrate has held that in erecting this wall the accused was not 'erecting any building' within Section 96, and this conclusion must, I think, be accepted unless it can be said as a matter of law that the material reconstruction of a small wall must constitute the 'erection of a building.'

3. For the reasons above stated I do not think that the Court is precluded from giving to the word 'building' in that section its ordinary meaning, a meaning which the neighbouring sections indicate as the sense in which the Legislature was using that expression in the group of sections of which Section 96 forms part. It is possible that the re-erection of a wall may (under certain circumstances) amount to the materialr reconstruction of a building under Section 96 But I do not think it necessarily does. In Emperor v. Kalekhan Sardarkhan (1910) 12 Born. L, R. 1060, referred to by Chandavarkar J., the applicant had treated the re-erection of his wall as falling within the section and had applied for leave to re-ercet it but did not wait to see if the permission would be granted or refused and there was no appearance on behalf of the accused. In the present case the wall is a small wall and has all along been regarded by the applicant as not a building within the Section 96. I concur with Mr. Justice Heaton in thinking that the application should be dismissed.


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