1. This is a reference by the learned Sessions Judge of Meerut. It arises out of a case under Section 148, U.P. Municipalities Act, in which one Lala Harsaran Das was prosecuted upon a complaint made by the Municipal Board of Ghaziabad. It appears that up till the end of 1937 for a period of more than 12 years Lala Harsaran Das was himself a member of the Municipal Board of Ghaziabad and during this period on two occasions he was the Chairman of the Board for two years. The second occasion was in the years 1936-37. During this period it appears that a vote of non-confidence was moved against him. It is not quite clear from the record whether any motion of non-confidence was actually made with success or whether there was only an attempt on the part of some members to make such a motion. One thing is however clear that in this proceeding one Mr. Ramanuj Dayal took a prominent part and he ultimately became the Chairman of the Board some time early in the year 1938. The complaint which is the basis of the prosecution launched by the Board against Lala Harsaran Das was filed on 19th April 1938, that is, shortly after Mr. Ramanuj Dayal came to occupy the office of Chairman of the Board. The complaint is signed by him as well as by the Executive Officer of the Board. The case set up against Lala Harsaran Das was that on 2nd April 1937 he had made an application to the Board for permission to make certain constructions with a view to enlarge some houses belonging to him and to convert them into a godown. This application was granted by the Board on 17th April 1937 and thereafter he made the necessary constructions but failed to give a notice to the Board within 15 days from the date of completion of those constructions or from the date of occupation of the building as required by Section 148(1), U.P. Municipalities Act, and was consequently liable to punishment under Section 148(2) of the Act which runs as follows:
Any person failing to give notice required by Sub-section (1) shall be punished upon conviction with a fine which may extend to Rs. 50 or ten times the amount of tax payable on the said building or enlargement for a period of three months whichever is greater.
2. In his defence Lala Harsaran Das admitted the fact that he had made certain constructions after obtaining the necessary sanction from the Board but had failed to give the notice required by Sec. 148(1) of the Act. He pleaded however that the prosecution launched against him was merely the outcome of personal ill-feeling between him and Mr. Ramanuj Dayal and took shelter behind the fact that the Municipal Board had never before insisted upon a compliance with the provision of Section 148(1) of the Act on the part of house owners who obtained the sanction of the Board for making new constructions or enlarging old ones. He alleged that no case of this kind had ever before been launched by the Municipal Board and that it was a settled practice that the Tax Inspector of the Board used to make periodical reports regarding constructions and enlargements and the Board used to revise its assessment of house tax on the basis of those reports. It may be mentioned here that the buildings which Lala Harsaran Das enlarged in the circumstances stated above were assessed to a tax of Rs. 5-1-0 per annum and that the enlarged building was let out on rent by him to the Crossway Motor Company for use as a godown at a rent of Rs. 50 per mensem with effect from 1st April 1937. On behalf of the prosecution it was suggested that Lala Harsaran Das had deliberately omitted to comply with the requirements of Section 148(1) of the Act because he dishonestly wanted to evade the higher assessment of house tax which was bound to follow if he had given the necessary notice to the Board. The case was tried by a Magistrate of the Second Class who acquitted Lala Harsaran Das on the ground that though the practice upon which he had relied could not modify the law, yet there was nothing to show that he had any dishonest intention in failing to give the required notice to the Board. The learned Magistrate's judgment which is quite brief may conveniently be set out in extenso as follows:
Babu Harsaran Das has been prosecuted for giving no information to the Municipal Board of Ghaziabad about the completion of his house as required under Section 148, Municipal Act. The accused has stated that as it was not the practice he gave no information of it to the Board and the Tax Inspector did this duty. It is true as urged by the prosecution that codified law cannot be modified by practice and it can be no defence. But it is to be seen how far he is at fault when it has not been the practice with the owners of the buildings to inform the Board soon after the completion of their buildings. The prosecution has not proved that the allegation is wrong and owners complied with the provisions of Section 148, Municipal Act. It is found from the statements of the Municipal employees who appeared on behalf of the prosecution that the owners of the buildings did not inform the Board of their completion but the Tax Inspector did this duty. In view of this fact, I do not find any mala fide on the part of Babu Harsaran Das and he is not guilty of the charge brought against him. He is acquitted.
3. Against this order of acquittal the Municipal Board filed a revision before the learned Sessions Judge of Meerut who has made this reference with the recommendation that the finding of acquittal should be set aside with a direction for retrial of the case by another Magistrate. There cannot be the slightest doubt upon the facts of the case that Lala Harsaran Das committed a breach of law and was consequently punishable under Section 148(2), U.P. Municipalities Act. The finding of acquittal recorded by the learned trying Magistrate cannot but be set aside because it is based upon a wholly wrong principle of law. It appears from the judgment of the learned Magistrate as well as from the explanation submitted by him that he was obsessed with the idea that dishonest intention was an essential ingredient of an offence under Section 148(2), U.P. Municipalities Act. This is obviously quite wrong. Any person who constructs or enlarges a building after obtaining the necessary sanction from the Municipal Board but fails to give notice of completion of such construction or enlargement within the period fixed by Section 148(1) of the Act renders himself liable to the penalty prescribed in Section 148(2) of the Act irrespective of his motive, knowledge or intention. In order to establish an offence under Section 148(2) of the Act it is not necessary at all for the prosecution to establish some bad motive or guilty knowledge or dishonest intention on the part of the accused person. I have therefore no hesitation in setting aside the finding of acquittal recorded by the learned trying Magistrate. But the question remains whether having regard to all the circumstances of the case it is proper and advisable to direct a retrial.
4. Upon an anxious consideration of the circumstances of the case I have arrived at the conclusion that this is not a fit case in which retrial should be ordered. There are two patent facts which cannot possibly be ignored and they have been established beyond all doubt by the prosecution evidence itself. The first one is that this is the very first prosecution of its kind launched by the Municipal Board of Ghaziabad and the second is that the motive behind this prosecution is undoubtedly the strong personal ill-feeling between Lala Harsaran Das and Mr. Ramanuj Dayal, the present Chairman of the Board who is also the complainant. I cannot help feeling that the prosecution is launched not with any desire to vindicate the law in the public interest but only with a view to humiliate Lala Harsaran Das. I have arrived at that conclusion after a careful perusal of the evidence on the record. I think Lala Harsaran Das has been sufficiently punished for the offence committed by him by having had to undergo the trial and I do not consider it fair or advisable for this Court to play into the hands of a party in order to enable him to satisfy his grudge. So far as the interests of the Municipal Board are concerned, I think they will be sufficiently protected for the future by the setting aside of the acquittal in this case. It would no longer be open to any person failing to comply with the requirements of Section 148(1) of the Act to take shelter behind the practice which the Municipal Board has undoubtedly followed so far. That essential purpose will be amply served by this judgment and it is not necessary or advisable in my opinion to proceed further to direct a retrial of the case. The result therefore is that I accept the reference in so far that I set aside the finding of acquittal recorded by the learned trying Magistrate but refuse to order a re-trial of the case.