1. This is a case in which the learned Sessions Judge refers a conviction arrived at by a Magistrate under Section 307(b) of the Municipalities Act on the ground that it was illegal for the Magistrate to sentence the accused to a further daily fine at the same time that has sentenced him to a fine for disobedience of the notice. The learned Sessions Judge has in support of his reference quoted the decision of Mr. Justice Piggott in Amir Hasan Khan v. Emperor (1918) 40 All. 569. It has been urged before me that the words in Clause (b) 'and, in case of a continuing breach, to a further fine' indicate that the sentence of a further fine may be passed along with the fine for the original offence I agree entirely with the view taken by Mr. Justice Piggott and it is therefore unnecessary for me to add much. If it were to be possible for the Magistrate to pass a sentence of fine for the continuing, offence at the same time as his original order of conviction, it is clear that it would mean that he could determine the rate at which the fine is to be exacted before the new offence of retaining the construction had been committed and before he knew the circumstances under which that offence had been and was being committed. To illustrate the inequity of this, I may instance the case of a Magistrate convicting two men on the same day in regard to two separate constructions and fining each of them, Rs. 50 for the original offence committed by him and ordering each of them to pay a further fine of Rs. 5 a day during the continuance of the refusal to obey the notice. A month later they both come up before him for having failed to remove their respective constructions; one pleads that, as a matter of fact, he has done his best to make arrangement for demolition but for one reason or another has been prevented. As regards the other it is proved that he has gone about the city saying that he will set She Board at the bottom of the sea before he obeys any of its orders, and yet in terms of his previous orders the Magistrate has already fined them both at the rate of Rs. 5 a day. I am quite clearly in agreement with the decision of Mr. Justice Piggott and I have only quoted this instance in order to show how any other interpretation than his would work injustice. Accepting therefore the reference of the learned Sessions Judge I delete from the order of the Magistrate the words 'and also to a fine of Rs. 2 per day after one week from this day if the encroachment is not demolished within this week and until it is demolished.'
2. On proof of the accused still disobeying the notice it will be open to the Municipality to prove for how many days he has disobeyed it and for the Magistrate to exercise his discretion as to the rate of daily fine which he will inflict according to the circumstances of the case. Let the record be returned to the Sessions Judge with this order.