1. The learned Sessions Judge of Cawnpore has referred to this Court in revision two orders passed by a Magistrate of the first class subordinate to him in connection with certain prolonged proceedings which have been going on between the Municipal Board of Fatehpur and a gentleman of the name of Munshi Amir Hasan Khan, who I understand, is a member of the legal profession for something more than one and a half years past. On the 8th of January 1917, it was proved against the said Amir Hasan Khan that he had failed to comply with a notice directing him to execute a certain work in respect of certain property, namely, a drain about which there was some contention between him and the Municipal Board. Under Section 307, Clause (b) of the U.P. Municipalities Act, which came into force on the 1st of July 1916, Munshi Amir Hasan Khan was liable to a fine which might extend to Rs. 500 and in case of a continuing breach he was liable to a further fine which might extend to Rs. 5 for every date after the date of the first conviction during which it might be proved against him that he had persisted in the offence. The trying Magistrate imposed the almost nominal fine of Rs. 5; but instead of contenting himself with warning the accused of the further liability which would attach to him from the date of this conviction, he purported by this very order of the 8th of January 1917, to direct Munshi Amir Hasan Khan to pay a further fine of Re. 1 per diem from the 9th of January, 1917, until the notice issued by the Municipal Board in respect of the drain in question should be satisfactorily complied with. As the learned Sessions Judge las pointed out, the latter portion of this order is illegal. The liability to a daily fine in the event of a continuing breach, has been imposed by the Legislature in order that a person contumaciously disobeying an order lawfully issued by a Municipal Board, may not claim to have purged his offence once and for all by payment of the fine imposed upon him for neglect or refusal to comply with the said order. The liability will require to be enforced, as often as the Municipal Board may consider necessary, by institution of a second prosecution, in which the questions for consideration will be, how many days have elapsed from the date of the first conviction under the same section during which the offender is proved to have persisted in the offence and, secondly, the appropriate amount of the daily fine to be imposed under the circumstances of the case, subject to the prescribed maximum of Rs. 5 per diem. To begin with, therefore, I must accept the reference of the learned Sessions Judge with regard to the order of the 8th of January 1917. The following words will be deleted from the said order, namely, and also from to-morrow to a further fine of Re. 1 per diem till the arch in question is removed.'
2. The next question which I have to consider is an order passed by the same Magistrate on the 23rd of November 1917. The matter was laid before this Magistrate in the form of a simple application asking him to enforce that portion of the order of the 8th of January 1917, which I have felt it my duty to set aside. The Magistrate has, as a matter of fact enquired into one of the two questions which I have suggested above as essential in the event of a further prosecution in respect of a continuing breach. He has considered carefully how many days had elapsed since the order of the 8th of January 1917, during which Munshi Amir Hasan Khan was proved to have persisted in his disobedience to the order of the Municipal Board. He has not, however, made any attempt to form an independent opinion as to the gravity of the offence committed, as to the excuses which might be offered (and which apparently were offered) for the conduct of the accused and as to the amount of the daily fine the imposition of which would satisfy the ends of justice. I am gratified to find, and it is one of the few circumstances in connection with my examination of this record which is calculated to afford any satisfaction, that the Magistrate has come to the conclusion that compliance has now been made with the notice issued by the Municipal Board, he has held that such compliance was made, according to one part of his order, on the 7th of September 1917, but according to another part of the same order, on the 17th of September 1917. Further, I find that Munshi Amir Hasan Khan has admitted liability to a certain extent. He has made practical acknowledgment of his error by paying a sum of Rs. 139 in the way of a fine for his continuing breach of the notice issued to him. It is quite possible that, if the Magistrate who enquired into this matter, had felt himself at liberty to exercise his discretion in the same, he might have fixed the amount of the daily fine at a sum which would have made this payment of Rs. 139 sufficient to clear the accused person from liability. While, therefore, I should have been reluctant to interfere upon a merely technical ground with the proceedings resulting in the order of November 23rd, 1917, had I thought that every thing which an accused person in a proceeding taken in respect of a continuing breach under Section 307, Clause (b) of the Local Municipalities Act, was entitled to have enquired into and considered, had been as a matter of fact so enquired into and taken into consideration by the Magistrate, I Think that this order of November 23rd, 1917, is open to objection in sub-stance as well as in form. I set it aside accordingly. The sum of Rs. 102 required under the terms of this order to be paid by the accused Munshi Amir Hasan Khan if paid, will be refunded.
3. It will be observed that, while accepting the rest of the reference made by the learned Sessions Judge I have passed no order directing any refund in respect of the sum of Rs. 139 paid by Munshi Amir Hasan Khan prior to the order of November the 23rd, 1917. No doubt that payment was actually made in compliance with that portion of the order of January the 8th, 1917, which I have set aside as inoperative; but a liability to a fine for a continuing breach attached to Munshi Amir Hasan Khan under the provisions of the Statute itself, independently altogether of the above order. He has virtually assessed his own liability at Rs. 139 and I can see no reason why this should not be accepted At any rate I pass no order of re-payment in respect of this sum of Rs. 139. Let the record be returned.