1. This is an application in revision by one Brijnandan Prasad who was convicted under Section 210, Municipalities Act, and sentenced to pay a fine of Rs. 50. Although the Sessions Judge did not agree that an offence under Section 210 had been established, holding that the Magistrate had committed an error in convicting the applicant under this section, nevertheless he maintained the conviction. The trial was a summary one. The record shows that the offence complained of was under Section 185 read with Section 210. Section 185 refers to the illegal erection or alteration of a building; Section 209 refers to the giving of sanction by the board to projections over streets and drains; Section 210 provides the penalty for such constructions made without permission.
2. The case against the applicant proceeded rather on the assumption that the offence complained of was one under Section 185 than one under Section 210. It has, however, been submitted in this application that there was an offence under Section 210, and I may therefore dispose of this submission first. The construction under consideration was that of a chabutra in front of the applicant's house. It has been contended that this construction was over a drain. There is on this point the evidence of the Overseer, Ibne Ali, an dthe Executive Officer, Mr. Sardar Ahmad. The overseer said that the accused had encroached on municipal land, but this does not necessarily mean encroachment over a street or drain. He further said that the land in suit adjoined municipal drains which rather suggests that the encroachment is not actually over a municipal drain. The Executive Officer said that there was a kharanja on the land in suit, but whether this was a municipal drain or not is not disclosed.
3. The only evidence on the point which directly supports the contention is that of a municipal peon whose final statement in cross-examination, it appears, to be the statement of the peon, Alay Ali though it is shown as the cross-examination of Ibne Ali, is that the accused constructed a chabutra on the road. This evidence bearing on the question whether the accused committed an offence under Section 210 does not appear to have been considered at all by the Courts below. But it seems to me to be impossible to hold on this vague and conflicting evidence that there was such an offence. I am not prepared to hold that the evidence of the municipal peon is sufficient to prove that the construction amounted to a projection over a street.
4. I come now to the question whether there was an offence under Section 185, that being the section under which the applicant might have been convicted on the facts found by the Courts below. Those facts were that notice was given by the applicant to the municipal board under Section 178 and that the chabutra was erected in contravention of the provisions of Section 180 (5). There was some dispute on the point whether notice had been given by the applicant to the board and also on the point whether the board's reply thereto had been received by the applicant. But it appears to have been found that both the notice and the reply were received, Section 180(5) provides that
no person shall commence any work of which notice has been given under Section 178 until sanction has been given or deemed to have been given under this section.
5. The contention advanced by the learned Counsel for the applicant is that in view of the provisions of Sub-section (3) of Section 180 the board should be deemed to have sanctioned the proposed work. Sub-section (3) provides that:
Should the board neglect or omit for one month after the receipt of a valid notice under Section 178 to take and deliver to the person who has given such notice an order of the nature specified in Sub-section (1) in respect thereof, such person may by a written communication call the attention of the board to the omission or neglect, and, if such omission or neglect continues for a further period of fifteen days, the board shall be deemed to have sanctioned the proposed work absolutely.
6. The reply sent by the board to the applicant's notice required him to produce his title deeds. Apparently he took no notice of this. It is submitted that this was not an order of the nature specified in Sub-section (1) of Section 180 and therefore the applicant was entitled to ignore it. Sub-section (1) of Section 180 provides that the board may either refuse to sanction any work of which notice has been given under Section 178 or may sanction it absolutely or subject to certain directions. It is not disputed that sanction was not given subject to any such directions and it is clear therefore that the board did not pass any order on the notice of the nature specified in Sub-section (1). There is no reason in view of the provisions of Sub-section (3) why the legal consequence of their failure should not be held to follow that consequence being that the board should be deemed to have sanctioned the proposed work. If this is so, no offence was committed by the applicant under Section 185. Another point advanced on the applicant's behalf was that the construction in question did not constitute an erection or alteration in a building or a part of the building. Building is defined in Section 2 (2) of the Act as a house, hut, shed or other roofed structure, and every part thereof. A chabutra will not come within this definition unless it can be considered as a part of the house. The plan in the present case shows that the chabutral was adjacent to the house, but I doubt whether it can be considered a part of the house. But that question does not arise on the view which I have formed on the other point. Learned Counsel for the municipal board pressed the allegation of encroachment. He said that actually the chabutra had encroached on municipal land. In this case the proper action for the board to have taken would have been to refuse the application straightaway. If there has been in fact any encroachment, I have no doubt that other remedies are open to the board. Upon the terms of the sections defining the offences for which the applicant was prosecuted, I am unable to hold that his guilt has been established. I must therefore allow this application. I set aside the conviction and sentence. The fine if paid by him must be refunded.