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Emperor Vs. Kalekhan Sardarkhan - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case Number Appeal No. 391 of 1910
Judge
Reported in(1910)12BOMLR1060
AppellantEmperor
RespondentKalekhan Sardarkhan
Excerpt:
.....:-;reversing the order of acquittal, that the accused had erected a building within the meaning of section 96 of the bombay district municipal act, 1901, inasmuch as in re-building the whole wall which had fallen down, there was a material reconstruction or an erection of a building, as defined in the explanation to the section.;queen empress v. tippamui (1888) unrep. cr.c. 402, followed. - .....(a) appended to the explanation of section 96, the expression 'to erect a building' includes any material reconstruction of a building. here the whole wall had fallen down and was rebuilt. that therefore was a material reconstruction or an erection of a building. that being so, it was obligatory upon the accused under section 96 of the act not to erect this building before receiving the municipality's orders, or without waiting for those orders as prescribed in the section.3. the accused, therefore, has infringed the law laid down in the section, and we must reverse his acquittal and convict him under section 96, sub-section 5. it is not desired to inflict any severe punishment upon the accused, the object of the present appeal being merely to establish the principle. we direct that.....
Judgment:

Batchelor, J.

1. The respondent here was prosecuted under Section 96 of the Bombay District Municipal Act III of 1901, for that he erected a new building without permission from the Municipality, and without waiting one month for the Municipality to pass orders in his case.

2. There is no dispute about the facts which are these: The wall of the respondent's house had fallen down and under Section 96 of the Act he made an application to the Municipality for leave to reconstruct it. That application was dated the 19th of April. Under Sub-section 4 of Section 96, the Municipality have one month within which to make known their decision, and on the 13th of May they issued an order to the respondent prohibiting him from making the reconstruction which he desired. The reconstruction had however been made before the 13th of May. The Magistrate acquitted the accused solely on the authority of the ruling in Queen Empress v. Tippana (1888) U. Cr. C. 402 and the only question before us is whether that decision governs the present case. We think that it does not. That was a decision passed under Section 33 of the Bombay District Municipal Act of 1873, which section differs in material particulars from Section 96 of the existing Statute. By Sub-section 7 of Section 3 of the present Act ' building' is defined to include walls, and by Clause (a) appended to the Explanation of Section 96, the expression 'to erect a building' includes any material reconstruction of a building. Here the whole wall had fallen down and was rebuilt. That therefore was a material reconstruction or an erection of a building. That being so, it was obligatory upon the accused under Section 96 of the Act not to erect this building before receiving the Municipality's orders, or without waiting for those orders as prescribed in the section.

3. The accused, therefore, has infringed the law laid down in the section, and we must reverse his acquittal and convict him under Section 96, Sub-section 5. It is not desired to inflict any severe punishment upon the accused, the object of the present appeal being merely to establish the principle. We direct that the accused pay a fine of one Rupee.


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