1. This is an application for the revision of an order of the City Magistrate of Shahjahanpur upholding the conviction of the applicant under Section 307 of the Municipalities Act, but reducing the fine from Rs. 100 to Rs. 50. An application for revision of this order has already been made to the learned Sessions Judge, who, however, in his order of August 9,1934, refused to interfere. The circumstances are given sufficiently fully in the judgment of the Courts below. It has been argued in support of the present application that the applicant can at this stage re-open the question of whether the notice issued by the Board was a valid notice, and it has also been suggested that as the Board acquiesced in the existence of the applicant's platform for a number of years and accepted some payments in respect of it, it must be deemed to have compounded this offence, if any, committed by the applicant.
2. This last point can be very shortly dealt with. The offence, as the City Magistrate has pointed out, was not the encroachment, but the failure to obey the notice. There never has been any question of compounding this offence.
3. The question of whether it is open to the applicant to challenge the validity of the notice at this stage has been decided by a Bench of this Court in the case of Har Prasad v. King-Emperor : AIR1932All673 . In the present case, the applicant did challenge the validity of the notice by appealing to the Collector. The Collector in an order which is on the record decided that the notice was a valid one, although he appears to have thought that there were some equities in favour of the applicant.
4. The only further point that has been touched on by Mr. Sinha in support of the application is this. It has been shown that the Board, which had only given permission to the applicant to construct a balcony 28 feet in length, when it discovered that a balcony had been built of the length of 34 feet, acquiesced in the encroachment for a number of years and accepted some sort of compensation for it. It is argued that this must be deemed to mean that the Board had given permission for the building of balcony of the length of 34 feet. To consider this argument, however, would be in effect to go into the question of whether the notice was a valid one, and this is, as I have already shown, not a matter which I can take up in revision at this stage. I delayed giving orders in this case at the request of applicant's Counsel, in order to have the advantage of perusing the decision of a Bench of this Court in Criminal Reference No. 937 of 1934, in which the same question was raised. The Bench delivered judgment on March 22, 1935, and discussed the question raised in the present application, but did not express a final opinion on it. The conviction cannot be set aside in revision. But in the circumstances of this particular case, as it appears to me that the applicant has certainly been somewhat hardly treated, the fine of Rs. 50 is excessive, and I, therefore, allow the application to this extent that I reduce the fine from Rs. 50 to Rs. 5. The application is otherwise dismissed.