1. The accused was convicted by the Special Magistrate, Third Glass, under Section 155 of the Bombay District Municipal Act of having disobeyed a lawful direction given by a written notice issued by the Dholka Municipality to remove an otla. The fasts are that at least since October 1919 this otla was in existence The Municipality, on the 17th December 1920, Bent a notice to the accused
You are informed by notice under Section 122 of the District Municipal Act that yon, by making an otla at the aide-wall of your house in the said street, have encroached on Government land. Therefore, within seven days of the receipt of this notice yon should remove the said otla, If you neglect to do so, steps frill be taken according to law.
2. The otla was not removed, and so the proper step according to law which the Municipality should have taken was to remove the otla themselves and charge the accused with the costs of the removal. Instead of proceeding in that manner, as provided by Section 122, they charged the accused with having disobeyed a lawful order. An appeal against the conviction was rejected, but we think that the conviction was clearly wrong, Section 122 gives no power to a Municipality to issue a notice to a person alleged to have erected an encroachment to remove U, although the Municipality may send such a notice, it is not a notice under the section. Such a notice might be sent as a matter of courtesy, preliminary to the Municipality taking action under the powers given them by the section to remove the encroachment themselves. Binds these special powers have been given, it seems to ma that was the proper remedy, as laid down by the Legislature in eases of failure to comply with such a notice, It has not intended, assuming a Municipality Served a notice upon a person to remove an encroachment, that if he did not do so, ho might be convicted under Section 155. I think, therefore, the conviction was wrong, and the accused mast be discharged, and the fine, if paid, refunded.