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Emperor Vs. Ezekiel Moses Penkar - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai
Decided On
Case NumberCriminal Application for Revision No. 106 of 1924
Judge
Reported inAIR1924Bom484; (1924)26BOMLR715
AppellantEmperor
RespondentEzekiel Moses Penkar
Excerpt:
.....privy without permission--breach of bye-laws.;the accused applied to the pen municipality for permission to build a privy. the permission was refused. the accused still put up a privy on the site of an old one. he was thereupon prosecuted for breach of the bye-law no. 9 of the bye-laws for privies framed by the pen municipality, which ran as follows:;after the completion of the privy the owner shall communioate this fact to the chairman, managing committee, and no person shall commence to make use of the privy unless he obtains a written order to that effect from the chairman, managing committee.; that the communication required by bye-law no. 9 related to a privy with reference to which permission had been granted under the preceding bye-law and not to a privy which had been..........house and a privy. it appears that there was an old privy on the spot. the municipality, however, granted permission to build the house, but refused permission to erect a privy. sometime thereafter, however, the applicant put up the privy in question on the site of the old privy. it has been found now that this was substantially a reconstruction of the privy. the applicant was prosecuted by the municipality, among other things, for having committed a breach of by-law no. 9 of the by-laws for privies framed by the pen municipality and sanctioned by the commissioner, southern division.2. as regards the other charges the learned magistrate acquitted the accused. as to the charge relating to the contravening of rule 9, he has been found guilty and sentenced to a fine of rs. 10.3. the.....
Judgment:

Lallubhai Shah, J.

1. The few facts material for the purpose of the present application are these. The applicant applied for permission to build a house and a privy. It appears that there was an old privy on the spot. The Municipality, however, granted permission to build the house, but refused permission to erect a privy. Sometime thereafter, however, the applicant put up the privy in question on the site of the old privy. It has been found now that this was substantially a reconstruction of the privy. The applicant was prosecuted by the Municipality, among other things, for having committed a breach of By-law No. 9 of the By-laws for Privies framed by the Pen Municipality and sanctioned by the Commissioner, Southern Division.

2. As regards the other charges the learned Magistrate acquitted the accused. As to the charge relating to the contravening of Rule 9, he has been found guilty and sentenced to a fine of Rs. 10.

3. The accused has now applied to this Court for a revision of the order relating to his conviction under by-law No. 9. The by-law is in these terms:--

After the completion of the privy the owner shall communicate this fact to the Chairman, Managing Committee, and no person shall commence to make use of the privy unless he obtains a written order to that effect from the Chairman, Managing Committee

4. It appears from Rule 7 that every person desiring to erect a privy or desiring to repair or rebuild an old privy shall apply in writing to the Chairman of Managing Committee for the necessary permission.

5. Rule 8 provides that on receipt of the application the Managing Committee shall give permission in writing for the erection of the privy subject to the conditions specified in bylaws No. 5 and 6.

6. It may be mentioned that though the applicant made an application to rebuild an old privy, that application was refused. The reason of the refusal was stated in general terms to be that according to the rules of the Municipality the permission could not be granted. Rule 8, however, provides that on receipt of the application the Managing Committee shall give permission in writing for the erection of the privy subject to the conditions specified in by-laws Nos. 5 and 6. At the time the permission was refused it was not stated that according to the provisions of Rule 6, now relied upon, the permission could not be granted as there was not a distance of at least five feet between the building and the proposed privy. It is also found by the learned Magistrate that the Municipality acted contrary to the provisions of Rule 8 in refusing permission.

7. The privy must be taken to have been built without the permission of the Municipality, and the question is whether Rule 9 applies to a privy so constructed. We are not concerned now with the question as to whether the Municipality could have pulled down the privy, which was built without the permission of the Municipality.

8. It is clear, however, that so far as Rule 9 is concerned, when it is read with reference to the context, that is in the light of rules 7 and 8 preceding Rule 9 and of Rule 10 which follows Rule 9, it seems clear that the communication that is required by Rule 9 to be made after the completion of the privy relates to a privy with reference to which permission has been granted under Rule 8, and not to a privy which has been constructed without the permission of the Municipality. It may be that the rule as framed is defective, and the intention of the framers of the rule was not to exclude from the scope of Rule 9 a privy such as we have in this case. But we have to construe the rule as it is framed, and if the original intention has not been sufficiently carried out, it is perfectly open to the Municipality to amend the by-law. But the by-law as it stands appears to relate to the privy in respect of which an application has been made under Rule 7, and for which permission has been granted under Rule 8. Rule 10 makes it clear that before issuing an order the Chairman is to satisfy himself that the privy has been completed in terms of the written permission given under bylaw 8. The Chairman would have no inquiry to make under Rule 10, if there was no permission granted by the Municipality with reference to the privy.

9. On a consideration of the wording of the particular rule, as also of the other connected rules, we are of opinion that Rule 9 does not apply to the facts of this case, and that there was no breach on the part of the applicant in not complying with the rule. There was no obligation on the applicant to communicate the fact of the completion of the privy to the chairman, nor was he under any obligation not to commence to make use of the privy before obtaining the written order to that effect from the chairman of the managing committee.

10. We make the rule absolute, set aside the conviction and sentence, and direct the fine, if paid, to be refunded.


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