1. This is an appeal by the Government of Bombay against the order of acquittal passed by the Honorary Second Class Magistrate of Nadiad in a case in which the accused Vora Hasanbhai Rehmatbhai Vinawala was prosecuted for erecting without the permission of the Nadiad Municipality a fence six feet in height consisting of wooden planks attached to posts embedded in the earth on the northern and southern boundaries of an open piece of ground to the east of his house situated within the Municipal limits.
2. The appeal raises the question whether the said construction is a building within the meaning of Section 3, Clause (2), of the Bombay Municipal Boroughs Act (Bom. XVIII of 1925). It seems the accused had made an application to the Nadiad Municipality on April 19, 1940, for permission to build a compound wall with doors in it in survey Nos. 509A and 509B. Comprised in those survey Nos. is the vacant land in question to the east of the accused's house. That permission was refused by the Chief Officer of the Municipality because the open land was 'street land' and the consent of all the persons residing in the street was not obtained. Against that refusal the accused appealed to the general body for redress. That appeal was rejected by that body in July, 1940, on the same grounds as those given by the Chief Officer. Thereafter the accused made the construction in question which is the subject-matter of the charge against him. There was a complaint against the accused's act from the residents of the street to the Municipality on or about July 29, 1940, upon which the Municipality directed the prosecution of the accused under Section 123(7) of the Bombay Municipal Boroughs Act.
3. Section 123, Clause (7), of the Bombay Municipal Boroughs Act, punishes persons who construct, alter, add to or reconstruct any building in contravention of the order of the Municipality directing that the construction proposed in the notice to the Municipality given under the provisions of Section 123(1) should not be made. The accused's defence was that the construction made by him is not a building and that therefore the municipal permission was not required and that his act did not offend against the provisions of Section 123, Clause (7), of the Act. The term 'building' is defined in Section 3(2) of the Act as follows:-
'Building' shall include any hut, shed or other enclosure, whether used as a human dwelling or for any other purpose, and shall also include walls, verandahs, fixed platforms, plinths, door-steps and the like.
4. It is urged on behalf of Government that fixing planks six feet in height to posts embedded in the ground is a 'wall' or an 'enclosure' and therefore a 'building' within the definition of that term, and that consequently the act of the accused constitutes an offence punishable under Section 123(7). That a compound wall of stones is included within the term 'wall' has been held in Emperor v. Ramrao : AIR1921Bom62 . The question is whether a fence of wooden planks enclosing a compound is a 'wall' or a 'compound wall'. In ordinary parlance the word 'wall' is not used to denote a fence of that kind. There are various decisions of this Court which show that certain kinds of compound fences are outside the prohibition of the section. For instance, a 'Karvi' or reed fencing has been held not to be a building within the meaning of that word as used in Section 3, Clause (2) - (See Queen-Empress v. Janardhan (1880) Unrep. Cr.C. 145. So also in another case, In re Salomibai (1888) Unrep. Cr.C. 428, a wattle-fence was considered to be outside the definition of a 'building'. In a more recent case, it was held that the term 'building' does not include an ordinary wire-fence-(See Emperor v. Ranchodlal (1917) I.L.R. 41 Bom. 563. One of the grounds of the decision was that in the popular acceptation of the word the term 'building' would not include a mere fence. The learned Assistant Government Pleader has sought to distinguish that case on the ground that there is less permanency in the case of a wire-fence than in the case of a fence of wooden planks. Apart from the merits of that argument, according to the description of the fence in question in the complaint, it appears to have been made of 'piece of wood and splinters' fixed to posts. It is open to doubt, if that is a correct description, whether in point of strength and permanency a wire-fence would be inferior to the present construction. But in our opinion the quality of the material used for a fence would not affect the question as to the nature of the construction, for, we think a fence of wooden planks could not in essential particulars be regarded as different from a wire-fence or wattle-fence or reed-fence. We think therefore that the learned Magistrate was correct in the view he took of the construction.
5. It has been argued that the fence in question could be regarded, in view of its height, as an enclosure and therefore offending against the provisions of the statute. Such a suggestion was not accepted in Emperor v. Ranchodlal. There the Court held that the word 'enclosure' referred to in the definition of 'building' must be interpreted as ejusdem generis with the preceding words 'hut' and 'shed', that is to say, must be taken to refer to some fabric or structure or thing built in the more popular acceptance of the word. Notwithstanding that judicial pronouncement, the legislature has not thought it fit to make any alteration or amendment in the definition of the term 'building', and it may be presumed that it accepted that interpretation as correct. Merely because the wooden fence screens off completely the outer view, it could not, in our opinion, be regarded as an enclosure.
6. Consequently this appeal fails and is dismissed.