1. The question before us in this reference from the learned Sessions Judge of Ahmedabad is whether an ordinary wire fence is a building within the meaning of Clause 7 of Section 3 of the Bombay District Municipalities Act of 1901.
2. There is not much authority to guide us, but it has been held in this Court that a 'karvi' or reed fencing was not a building within the meaning of that word as used in Section 33 of the Act of 1873: see Queen-Empress v. Janardhan (1880) Unrep. Cr.C. 145. Under the same Act this Court has also held that a mere wattle fence was also outside the definition of building : see In re Salomibai (1888) Unrep Cr.C. 428. It appears, therefore, that consistently with the rulings the wire fence now before us should be regarded as outside the provisions of Clause 7 of the present Section 3. That is confirmed by the definition of the word 'building' in Webster's Dictionary, where it is expressly mentioned that in the popular acceptation of the word it would not include a mere wall or fence. It is no doubt true to say that by the special provisions of Clause 7 a wall is to be included within the word 'building' But it is so included by reason of the special words importing its inclusion. There are no such special words to sweep in a fence which is therefore in my opinion outside the definition. But then Mr. Mehta contended that even if the fence could not be brought inside the definition as being a species of wall, yet it ought to be held to fall within the definition as being an enclosure. Now here the clause reads that 'building' shall include any hut, shed or other enclosure, and, looking to the wideness of these words and to the context, I am of opinion that the enclosure referred to 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. In that view it appears tome that the wire fence is as much outside the word 'enclosure' as outside the word 'wall'. Any educated Englishman would. I think, feel that it was a misuse of language to speak of a wire-fence as a 'building'.
3. The conviction, therefore, must be set aside, the accused acquitted and discharged and the fine, if paid by him, must be refunded to him. He must also be reimbursed the process fees which he has paid under Section 31, Clause 3 of Act VII of 1870.
4. I agree.