1. This is an application for revision of an order of the Joint Magistrate, Benares, convicting the applicant under Sections 185 and 307, Municipalities Act. From the record it appears that in April 1923 Ramzan, applicant, built a wall without first obtaining permission from the Municipal Board. This which is an offence under Section 185 of the Act, has not been seriously disputed.
2. It is further alleged that on 15th April 1923 he was served with a notice to demolish the wall within three days. On 18th April an officer of the Municipal Board, finding that this had not been complied with went to the spot to demolish the wall but was not allowed to do so by the applicant. The lower Court has found this offence under Section 307 of the Act proved. For the first offence the applicant has been convicted and I think rightly. The fine of Rs. 50 is not severe having regard to the narrowness of the gali where the wall was constructed. The second charge has also resulted in a conviction, but I find that the notice has not bean properly proved. It is not on the record as it should have been and the mare verbal assertion of a servant of the Board that such a notice has been issued cannot be regarded as sufficient proof that it was so issued.
3. Finally the latter part of the order contains the words 'Failure to comply (with the order to demolish the wall) will as from 1st December involve a continuing fine of Rs. 2 per diem.' If this is to be treated as an order imposing such a fine it is illegal and has been held so by moat of the High Courts. The Allahabad ruling is contained in the orders passed in Amir Hasan Khan v. King-Emperor AIR 1918 All 266. If it is to be treated as a warning it was unnecessary and undesirable to specify the amount which could only be decided when a second prosecution had been successful. I therefore forward the record to the Hon'ble High Court with a recommendation that the conviction under Section 307, Municipalities Act, be quashed and that the words referring to continuing fine be deleted from the order. The record is forwarded under Section 438, Criminal P.C., with the explanation of the lower Court.
4. I agree with the view taken by the learned District Magistrate. The conviction under Section 307, Municipalities Act, is quashed and the words referring to a continuing fine are delected from the order.