(1) This is an appeal by the Municipality of Vyara under Section 417(3) of the Code of Criminal Procedure against an order of acquittal passed by the Judicial Magistrate, First class, Vyara, District Surat. At the instance of the Vyara Municipality the respondent Fulchand was tried before the Judicial Magistrate, First Class, Vyara, for an offence under section 96(5) of the Bombay District Municipal Act. The learned Magistrate acquitted the accused and against the order of acquitted the accused and against the order of acquital the Vyara Municipality has obtained special leave to appeal to this court.
(2) The facts which give rise to the complaint are briefly these. The respondent is the owner of a building No. 1657 in the town of Vyara. He desired to repair the building and to construct a Kitchen. A bath room and a lavatory at the rear of the building. He, therefore submitted an application to the Municipality of Vyara for permission to carry out the repairs and to put up the proposed construction. With the application the respondent submitted the plans required by the rules framed by the Municipality. The Municipality granted sanction to the respondent to carry out the repairs and to make the construction subject to three conditions (I) that the respondent should not put up any construction in the area which the Municipality had shown in red colour in the plan, exhibit, 7. Submitted by the respondent (ii) that all the construction was to be made in the area to the west of the blue line shown in the plan (iii) that the construction should be carried out in accordance with the plan which was sanctioned by the Municipality. The respondent ignored the first annd the second conditions imposed by the Municipality and put up a structure on the area ``shown in red colour'' in the plan. This breach having come to the notice of an Inspector of the Municipality, a complaint was an filed against the respondent for an offence under Section 96(5) of the Bombay District Municipal Act. 3 of 1901 in the court of the Judicial Magistrate. First Class, Vyara. The respondent contended interalia that a sanction to prosecute him as required by S. 161 of the Bombay District Municipal Act was ot granted by a competent authority, that the complaint was barred because it was not filed within six months from the date on which the offence was alleged to have been committed, and that the conditions imposed by the Municipality refusing permission to build upon the area show in red colour in the plan exhibit 7, were illegal and not binding upon him and accordingly in putting up a construction upon that area he did not contravene the provisions of the Bombay District Municipal Act. The learned trial Magistrate upheld the contentions raised by the respondent about the validity of the sanction and the right of the Municipality to impose the impugned conditions and acquitted the respondent.
(3) The Vyara Municipality is governed by the Bombay District Municipal Act 3 of 1901., Section 96 of the Bombay District Municipal Act provides by the first sub section, in so far as it is material:
'Before beginning to erect any building or add to any existing building the person intending so to build shall give to the municipality notice thereof in writing, and shall funish to them at the same time if required by a bye law or by special order to do so,
(a) the sanad, if any in force relating to the site of such proposed building............and
(b) a plan showing the levels at which the foundation and lowest floor of such building are proposed to be laid, by reference to some level known to the Municipality. And all information they may require regarding the limits, design, ventilation and materials of the proposed building.
Save as otherwise provided in this act or the rules and by laws thereunder, the Municipality may either give permission to erect, alter add to or reconstruct the building the building according to the plan and information furnished or may impose in writing such conditions as to level, drainage, sanitation, material or to the dimensions. And cubical contends of rooms, doors, windows and apertures for ventilation or to the number of storyes to be erected, or with reference to the location of the building or the purpose for which the building is to be used. As they think proper, or may direct that the work shall not be proceeded with unless and until all questions connected with the respective location of the building and any such street have been decided to their satisfaction.
Subsection (5) of Section 96 penalises any person who begins any construction, alteration, addition or reconstruction without giving the notice required by sub section (1) of without furnishing the documents or affording the information prescribed in that sub section.
(4) Admittedly in this case the respondent had submitted an application to the Municipality for permission for making repairs and for adding to his building. That application was accompanied by the requisite plans as required by the bye laws. ON this application by the respondent, the Municipality gave him permissionto build, but subject to the condition that the respondent was not to build within the are shown in red colour in the plan. The respondent challenges the authority of the Municipality to refuse permission to build on my part of the area of the land belonging to him . Under sub section (2) of section 96 subject to the provisions of the act and the rules and bye laws thereunder, the municipality has the power to give permission, to erect, alter, add to or reconsturct the building according to the plan and information furnished or to impose certain conditions or to direct that the work shall not be proceeded with unless that the work shall not be proceeded with unless and until all questions connected with the respective location of the building have been decided to its satisfaction. And the condition which can be imposed may be as to level drainage, sanitation materials or to the dimensions and cubical contents of rooms doors, windows and apertures for ventilation or to the number of storeys to be erected, or with reference to the location of the building in relation to any street existing or projected or the purpose for which the building is to be used. Evidently a condition requiring a house owner not to build on the area proposed to be built upon is not one of the conditions prescribed by Section 96(2) Provided the proposed construction does not contravene the rules and bye laws of the Municipality and the provisions of the act,. It appears implicit in the provision of S. 96(2) of the act that the Municipality shall on an application which supplies the requisite information give permission to construct subject to conditions in respect of matters specified therein or may ask for further information with regard to the location of the building if such information has not been furnished; and a powers to refuse permission to build either on the whole or on a part of land belonging to the applicant is not contemplated by Section 96(2) That was so decided by this court in Maneklal Hirabhai v. land acquisition officer, West Khandesh 39 Bom LR. 142 : AIR 1937 Bom 177.
(5) The Municipality is however, given authority in certain everntualities to refuse permission applied for under section 96(1) It is provided by Section 96(A) of the Bombay Distirct Municipal Act:
When a person has given notice to the municipality under sub sec (1) of section 96 in regard to his intention to build, alter add to or reconstruct a building. It shall be lawful to the municipality to refuse the permission applied for if the municipality passes a resolution proposing to acquire the land on which any building is proposed to be erected or any building situated on which is proposed to be altered added to or reconstructed.
Section 96A(1) contemplates those cases where consistently with the rules and bye laws framed by the municipality an application is submitted for permission to construct or add to or alter a building by a house owner and the municipality intends to refuse to grant the permission applied for. But the refusal by the Municipality can, by the express words used in S. 96A(1) of the Act, be valid only if the municipality passes a resolution proposing to acquire the land on whichh the applicant desires to erect a building or to alter, add to or reconstruct any building situated on the land. If the municipality does not pass a resolution proposing to acquire the land and refuses permission which is applied for under S. 96(1) the refusal is invalid. In the municipality does not pass a resolution proposing to acquire the land and refuses permission which is applied for under S. 96(1) the refusal is invalid. In the present case, there is no evidence on the record to show that the Municipality of Vayara had passed any such resolution proposing to acquire the land on which the building of the respondent stood. The refusal by the Municipality, is therefore, in our judgment, invalid, and constructions, of a building in contravention of that refusal is not effectively penalised by sub-s (5) of S. 96 of the Act.
(6) Mr. Pandya, who appears on behalf of the Municipality contends that S. 96A of the Bombay District Municipali Act contemplates an absolute refusal by the Municipality to permit erection of a building and does not contemplate cases where there is refusal to sanction permission for construction on a part of the land on which the building is proposed to be constructed. We are unable to accept that contention. If the municipality refuses permission to alter, add to or reconstruct a building. By the express words used in the statute, the refusal must be accompanied by a resolution to acquire the land on which the building stands. It is therefore, evident that S. 96A of the Act is not restricted in its application to cases where permission to erect a building is refused. In our judgment refusal to permit onstruction of a part of the land propsed to be built upon can only be effective if the municipality resolves to acquire the land which is required or ordered to be kept un-built upon.
(7) Mr. Pandya says that he has instructions to state that in fact a resolution consistently with the terms of S. 96 A of the Bombay District Municipal Act was passed by the Municipality of Vyara. But no such resolution has been produced in the court below and we are unable to proceed upon the assumption that such a resolution must have been passed.
(8) On the evidence, we have no doubt that the restricted sanction given by the Municipality on the application submitted by the respondent did not prevent the respondent from making construction upon that area of his land which is shown in red colour in the plan, exhibit 7. On the view taken by us, it is unnecessary for us to consider the court below and which appealed to the learned trial Magistrate.
(9) We, therefore, confirm the order of acquittal passed by the learned Magistrate in favour of the respondent and dismiss this appeal.
( 10) Acquittal order confirmed.