1. This is an appeal against the judgment in C. C, 3246 of 48-49 on the file of the Second City Magistrate, Bangalore, acquitting the accused of an offence under Section 25, City of Bangalore Improvement Act of 1945, the operation of which is extended from 18-3-49 to the area in which the respondent's land is situated.
2. The Municipal Sub-overseer who has been examined in the case as the first witness for the prosecution has stated that on 23-3-49 the accused was gutting sites marked out by fixing atones. Twenty persons were working on the sites according to this witness. P. W. 2 is the Assistant Engineer, Trust Board. states that when ho went to the place with P. W. 1 the demarcation atones were being fixed. Some sites had been demarcated and some were being demarcated when he went there on 23-3-1949, He saw the accused there but did cot take a statement from him. The case of the accused is that he did mark the sites prior to 18-8-49 on which data the Act was made applicable to the area in which his land was situated and that even otherwise mere fixing of stones for demarcating sites and roads subsequent to the application of the Act does not amount to forming or attempting to form an extension or lay-out) as contemplated by Section 25 (2), City of Bangalore Improvement Act.
3. As regards the first point, there is hardly any doubt that the accused had got a plan prepared and sold some sites after demarcating them before 1-3-1949. The plan was got registered along with a sale deed executed before 18-3-1949. At the same time there is sufficient evidence to indicate that demarcation of other sites by fixing atones wag being done after 18-3-1949. In fact, the evidence, of P. Ws. 1 and 2 establishes that the accused was getting this done on 23-3-49. It has, therefore, been proved beyond doubt that demarcation of sites was being got done by accused even after 18-3-1949.
4. The next point for consideration is whether this amounts to an offence. Under Section 25 (1), City of Bangalore Improvement Act,
'No person shall form or attempt to form any extension or lay-out for the purpose of constructing buildings thereon.'
What is prohibited is first the formation of an extension or the attempt to form an extension and, secondly, the formation of a lay-out for the purpose of constructing buildings thereon or the attempt to do so. Before an act is done, a person must first intend to do it. He then makes preparations for doing it. Then he attempts to do it, and if the attempt is successful the act is done. In this case, the accused clearly intended to form a layout for the purpose of construction of buildings. He got a plan made on paper, This by itself cannot amount to an attempt to form a, lay-out. He might have in fact desisted from going near the land and making a lay-out or even from attempting to do so if he changes his mind. Romer L. J., observed in Devanport Corporation v. Tozen, 1903-1 oh, 769 at p. 764:
'It appears to me especially with respect to the byelaw as to laying out a new street it is clear that the bye-law in question is dealing with something in the nature of physical laying out and not what I may call a metaphorical laying out. They relate to something to be done or contemplated to be done on the land in question.'
As observed by Brett L. J., in Robinson v. Local Board for Barton (1882) 21 Ch. D. 621 at p. 636;
'New streets may be made under different circumstances. The whole land on both sides may belong to one owner; then he conceives a design of making a new Street within the meaning of the Act of Parliament. The Act of Parliament is not concerned with what people do on paper, but with what they do in point of fact and upon the land.'
Then again as observed by him at pp. 637 and 638:
'A plan laid out may show an intent to do a thing, but the laying out in this bye-law does not mean laying out on paper. It means laying out on the land. It is laying out and forming it.'
It will thus be noticed that the accused in this case cannot be deemed to have committed any offence by merely making a plan.
5. When he, however, began to form sites by fixing stones to demarcate the line between site and Bite and between Bites and roads, circles and lanes, he was clearly laying out and forming. If after a man begins to do so and is prevented from accomplishing it, his act is an attempt that failed. Nevertheless, it is an attempt to form a lay-out. The laying out in this case is meant for the purpose of the construction of buildings as is made clear by the demarcation of building sites, streets, circles, etc. The accused, therefore, cannot but be guilty of an offence under Section 25 (1) , City of Bangalore Improvement Act, as he continued to form a lay-out after 18-3.1949, for purposes of constructing buildings thereon.
6. It was contended that a lay-out is not formed or attempted to be formed unless houses are built or attempted to be built. This is incorrect. The very words of the section contemplate a lay-out being formed for the purpose of construction of buildings thereon. It is sufficient if the purpose of the lay-out is the construction of buildings. It is not necessary that any building should be actually put up before it could be said that a lay-out is formed. It may be different if the formation of a street is being considered as in Robinson v. Local Board for Barton, (1882) 21 ch. D. 621, referred to above. It is amply clear that the definition of the word 'street' in the City Municipality Act that a vacant space used as a passage is a street 'if houses, shops or other buildings abut thereon'. So a street may be formed by construction of houses abutting on a vacant space. Similarly, the formation of an extension may be effected by construction of buildings. It is significant that Section 25 (2), City of Bangalore Improvement Act, states that the Beard might direct that further act towards the formation of extension be stopped but it does not say that the formation of a lay-out be stopped. A lay-cut may always be complete without the construction of even a single building.
7. As observed in 19 Mys. L. J. 358:
'The High Court will interfere with an acquittal in appeal protected under Section 417 of the Code of Criminal Procedure when the acquittal depends upon a mistake of law or clearly an unreasonable finding of fact.'
It has to be stated that in this case the learned Magistrate does not say that he does not disbelieve the evidence of Overseer and Assistant Engineer whose evidence makes it certain that the accused continued to form the lay-out by getting demarcation stones fixed on 23-3-49, i. e. some days after the Act is made applicable to the area in which his land is situated. To say as he has said that the accused was evidently getting the stones previously fixed, refixed is misreading the evidence and drawing an inference based on no evidence. His judgment acquitting the accused based on a clearly unreasonable finding of fact is set aside. The accused is guilty of an offence under Section 25 (i) City of Bangalore Improvement Act, and is convicted of an offence under that section and sentenced to pay a fine of Rs. 100 which shall be paid to the credit of the City of Bangalore Improvement Fund, on realisation, under Rule 49 (2) (sic.) of the City of Bangalore Improvement Act.