P.S. Safeer, J.
(1) In petitioner's premises the respondent's Inspector noticed certain wooden partitions and he enquired whether the same were old or new and after verifying that the same had been put up without sanction, the respondent filed complaint against petitioner who was convicted. The conviction was maintained by Addl. Sessions Judge and petitioner filed revision in High Court. Para 4 onwards the judgment is :
(2) The case in the complaint was that the Sub-Inspector, Enforcement, had noticed that several wooden-cum-glass partitions were being constructed. It was necessary for the courts below to look into the legal aspect as to whether the constructions which were being complained against were 'buildings' within the meaning of the Act and if so whether they were being brought into existence in violation of law.
(3) Before the trial court proceeded to judgment it had recorded evidence of the parties. It became incumbent upon it to become conversant with the bye-laws which had been allegedly infringed. Section 195-A (1) of the Act prescribes that where a building is begun in contravention of any bye-law framed under section 190, a notice may be issued requiring that the building operations be discontinued. Sub-section (2) of section 195-A, which is the penal provision, comes into play only where the person receiving the notice fails to comply with the terms thereof. It is regretted that the trial court and the court of appeal did not carefully examine-section 195-A and find out as to whether there had been the infringement of any bye-law which might have been framed under section 190 of the Act. The complaint was based on the assumption that the dimensions infringed the bye-laws.
(4) I must record that Mr. Nayyar has given conspicuously valuable assistance by producing the bye-laws framed by the New Delhi Municipal Committee and by fairly interpreting the concerned provisions. S. 190 is:- (......)
(5) The bye-laws to find protection in the said provision must be covered by one or more of the clauses enumerated as (a) to (1). Clause (a) deals with materials and method of construction to be used for external and party- walls, roofs and the rest. Clause (b) deals with the materials and method of construction and position of fire-places, chimneys, drains, latrines, privies, urinals and cess-pools. Clause (c) permits the framing of the bye-laws pertaining to the height and slope of the roof above the uppermost floor upon which human beings are to live or cooking operations are to be carried on.
(6) Clause (d) would permit the framing of bye-laws in respect of ventilation and the space to be left about a building in order to secure the free circulation of air and which place may be used for the purpose of operations to prevent fire. Clause (e) obviously deals with the line of frontage where the building abuts on a street. Clause (f) provides that the municipal committee may prescribe the number and the height of each of the storeys of which a building may consist. Clause (g) permits the framing of bye-laws requiring that the building be so constructed as to provide egress from the building in case of fire. Clause (h) deals with the materials and method of construction to be used for godowns intended for the storage of food-grains in excess of fifty maunds and in order to ensure that the godowns are rat-proof. Clause (i) gives the authority to frame the bye-laws prescribing the minimum dimensions of rooms intended for use as living rooms or sleeping rooms. No bye-law under clause (i) could have been framed in respect of office accommodation.
(7) Clause (j) gives the authority to frame bye-laws in respect of ventilation of rooms and minimum dimensions of doors and windows. It does not give the authority to frame any bye-law in respect of partition walls which may be erected inside an office room for the convenience of those who may function in that room.
(8) Clause (k) gives the authority to frame bye-laws in respect of the position and dimensions of projections beyond the outer face of any external wail of a building. Clause (1) would protect a bye-law framed for the purpose of prescribing the height of factory chimneys and may provide as to how the smoke is to be consumed which may be arising from combustibles used in the fire-places or the furnances of the factory.
(9) None of the clauses authorise the framing of the bye-law on which reliance is placed before me on behalf of the New Delhi Municipal Committee. The New Delhi Municipal Committee framed bye-laws under sections 188, 189 (iv), 190 and 191 of the Punjab Municipal Act and they are contained in a publication, a copy whereof Mr. Nayyar has produced. He has drawn my attention to page 6 where the word 'Repairs' is defined and the invoked clause (h) there under. Clause (h) which is :-
'(H)construction or re construction of parapet walls not exceeding 3 ft. in height and external purdah walls up to a maximum height of 5 feet 6 inches on any floor or floors and erecting of internal wooden partitions up to a height of 7 feet on any floor or floors ; '
Note attached to Cl. (o) is : No sanction shall be necessary for carrying out repairs as defined in this clause.'
(10) The argument raised by Mr. Nayyar is that the complaint was filed for the reason that the internal wooden partitions had not been limited to the height of 7. 'as permitted by clause (h), reproduced above. According to him, the Sub-Inspector, Enforcement, had found that the wooden frames were of the height of 10 feet. There being a breach of clause (h) the notice under rection 195-A was issued and, according to the learned counsel, after the notice was not complied with the complaint was filed. As I have discussed earlier, clauses (a) to (1) in section 190 (1) of the Act do not protect clause (h) the violation whereof had allegedly occasioned the filing of the complaint. The very basis of the complaint lies shaken. The courts below should have attended to the legal aspect and should have found for themselves whether the petitioners had committed any violation of any bye-law framed under section 190 of the Act or not.
(11) Before leaving the case, I find it essential to notice the deposition of P.W. 1 on which the trial court relied, and whose order of conviction was upheld by the court of appeal. [After discussing weak-ness in deposition, judgment proceeds].
(12) This court is not to appreciate evidence while exercising jurisdiction provided by section 429 of the Code of Criminal Procedure. Where, however, the judicial conscience is shaken and the court finds that the conviction is illegal it would be abdicating its revisionary jurisdiction if it does not interfere. In this case the courts below should have applied their minds to the scope of section 195-A of the Act, should have examined every clause in section 190 of the Act and should have insisted on the production of the bye-laws before them. That was not done. I do not find that the complainant had succeeded in establishing any guilt for which the petitioners could have been punished within the scope of section 195 (2) of the Act. Petition accepted.