John Beaumont, Kt., C.J.
1. These are two revision applications in which the same point arises. The accused were convicted under Section 123(7) of the Bombay Municipal Boroughs Act, 1925, for having constructed a building without permission.
2. The facts are that on March 2, 1940, the accused gave a notice under Section 123(1) of the Act as to the work they were proposing to do, and under Sub-section (2) the Chief Officer required them to make certain alterations in their plans, which were duly made, and, according to the accused, they received no further communication from the Chief Officer, Accordingly on August 1 they gave notice that, having received no further communication from the Chief Officer for a period of four months, they were proposing to start work, and they did start work on August 10. On August 14, the Municipality wrote saying that on April 4 they had required the accused to set their work back twenty feet from the privy, which they would be required to do under by-law 26 of the Ahmedabad Municipality.
3. In revision the learned Additional Sessions Judge dismissed the applications summarily on the authority of a decision of this Court, Emperor v. Dahyabhai Savchand : (1941)43BOMLR519 . In that case this Court held that an accused person seeking to bring himself within the provisions of Section 123(5) must prove that he came within that section, because it was an exception which excused him from the liability, which he would be otherwise under, under the rest of the section. Sub-section (5) provides that a work proposed in a notice given under Sub-section (1) may be proceeded with in the manner specified in such notice, provided such manner is not inconsistent with any provision of the Act or any by-law for the time being in force thereunder in the cases therein mentioned, one of which is that the Chief Officer has not within one month taken action as therein specified. In Emperor v. Dahyabhm Savchand this Court held that in order to bring himself within that exception, the burden lay upon the accused to prove that his work was not inconsistent with any provisions of the Act or by-laws. But that presupposes that a question has arisen as to whether he has committed a breach of any provision of the Act or by-laws. It is obvious that the accused person cannot go through every section of the Act and every by-law and prove affirmatively that he has not committed any breach of that section or that by-law. In Emperor v. Dahyabhm Savchand a question was raised as to whether a certain provision of the Act had been broken, though I am not quite sure from the report when the question was first raised in that case. But it seems to me that the true view is that, as soon as the Municipality has notice that the accused is going to rely on Section 123(5), the Municipality must allege what provisions of the Act or bylaws they say the accused has broken, which disentitles him to rely on Section 123(5). When that allegation is made, the burden is upon the accused to prove that he has not committed the breach of the Act or by-law alleged. But unless the Municipality alleges a breach of some specific provision of the Act or by-law, it seems to me that there is no issue on which any question of burden of proof can arise, and I do not think that the Court intended in Emperor v. Dahyabhm Savchand to decide more than as to the burden of proof when an issue arose. I think the learned Additional Sessions Judge was wrong in assuming that he could not go into the question of the right of the accused to rely on Sub-section (5) to Section 123, unless he had affirmative evidence that no single provision of the Act or by-laws had been broken.
4. The lower appellate Court did not deal with the question whether the notice alleged to have been sent to the accused on April 4, 1940, was received or not, and, therefore, I think we must send the cases back to the lower appellate Court in order that the Court may deal with that point. Assuming that the accused did not receive that notice, then I think the accused were entitled to act under Section 123(5), because they waited ten days before commencing work, and it was not until the expiration of fourteen days that the Municipality first gave notice that there might be a breach of some bylaw, and I think that was too late, because by that time the accused had committed the breach with which they are charged. I think, therefore, that unless the lower appellate Court comes to the conclusion that the Jawak sent by the Municipality on April 4 was in fact received by the accused, the conviction will have to be set aside.