1. In this case the accused was tried on a charge under Section 123(7) of the Bombay City Municipalities Act, XVIII of 1925, for failure to give the prescribed notice to the Municipality before reconstructing certain walls of the house. The Second Class Magistrate acquitted the accused on the ground that the walls were not proved to have been built on a new foundation. The Magistrate visited the place and came to the conclusion that both the walls repaired and constructed were on old foundations, and therefore the accused was not bound to give notice under Section 123.
2. On the question whether the building of a wall amounts to the reconstruction or an erection of a building within the meaning of Section 98 of Bombay Act III of 1901 and Section 33 of Bombay Act VI of 1873, there is a conflict, of judicial opinion in several decisions of this Court. It was held that the building of an isolated wall on an old foundation did not amount to an erection of a building under Section 33 of the District Municipal Act, Bom. Act VI of 1873. See Queen-Empress v. Tippana (1888) Cr. C. 402. In the case of Emperor v. Kalekhan Sardarkhan I.L.R. (1910) Bom. 236, s.c. 12 Bom. L.R. 1060 it was held that the re-building of a wall that had fallen down amounted to a re-cons true to oil of a building. The contrary view was taken in the case of Emperor v. De Souza : (1911)13BOMLR494 . Under the interpretation clause, Section 3, Clause (7), of Bombay Act III of 1901, a wall came within the inclusive definition of a building. In the Explanation to Section 1 3 of the City Municipalities Act (Bombay Act XVIII of 1925), it is mentioned that the expression 'to construct a building' throughout the chapter includes any material alteration, enlargement or re-conatruction of any building, or of any wall, verandah, fixed platform, plinth, door-step or the like, whether constituting part of a building or not. It is clear, therefore, under the explanation to Section 123 of Bombay Act XVIII of 1925, that any material alteration or re-construction of any wall would amount to a construction of a building within the meaning of Section 123. We think, therefore, that the view taken by the Second Class Magistrate that the construction of walls on old foundations did not amount to re-construction of a building is not correct. It further appears that the walls have been built within the alignment line. If the as walls were built within the road line, the construction of th9 walls would b. 3 contrary to Sections 118 and 119, and would fall within Sub-section (1) of Section 123 and the construction of the said walls without notice would be punishable under Sub-section (7) of Section 123 of the Act. We think, therefore, that the acquittal of the accused is erroneous.
3. We would, therefore, set aside the acquittal and convict the accused, We would fine the accused Rs. 5 (five), in default eight days' simple imprisonment.