B.J. Divan, J.
1. The appellant in this appeal is the Bagasara Municipality, through its Sanitary Inspector, and the respondents are the State of Gujarat and the original accused. This appeal arises under the following circumstances:
2. The accused in this case is a vendor of ice and he was standing at a particular spot within the limits of Bagasara Municipality selling ice from his hand-cart or hand-lorry and when he was selling ice to his customers, the Sanitary Inspector asked him to remove the hand-lorry and when the accused refused to remove the hand-lorry, it was got removed by the Sanitary Inspector; and thereafter the accused was prosecuted for contravention of the provisions of Section 185(1) of the Gujarat Municipalities Act, 1963, being Gujarat Act No. XXXIV of 1964. The learned Judicial Magistrate, F.C, Bagasara, who tried the case, held that the accused was not guilty of the offence under Section 185(1) of the Gujarat Municipalities Act and thereafter the Bagasara Municipality, through its Sanitary Inspector, has filed this appeal against the order of acquittal.
3. At the stage of the appeal, the facts are not in dispute and we proceed on the footing that at the relevant time the accused was found to have kept his hand-cart or hand-lorry on a public street in Bagasara within the jurisdiction of Bagasara Municipality,
4. Section 185(1) of the Gujarat Municipalities Act, 1963 (hereinafter referred to as the Act) is in these terms:
(1) Whoever in any area after it has become a municipal borough,
(a) shall have built or set up, or shall build or set up any wall, or any fence, rail, post, stall, verandah, platform, plinth, step or any projecting structure or thing or other encroachment or obstruction, or
(b) shall deposit or cause to be placed or deposited any box, bale, package or merchandise, or any other thing, in any public place or street or in or over or upon any open drain, gutter, sewer or aqueduct in such place or street shall be punished....
The words in Sub-clauses (a) and (b) of Sub-section (1) of Section 185 of the Act are identical with the words in Section 152(1) of the Bombay Municipal Boroughs Act, 1925, being Bom. Act No. XVIII of 1925; and the provisions of Section 152 of the Bombay Act came up for consideration before a Division Bench of the Bombay High Court in Emperor v. Hasam Mamad 42 Bom. L.R. 785; and there the Division Bench consisting of Sir John Beaumont C.J. and Wassodew J. came to the conclusion that a motor car or a motor lorry or a horse drawn or hand-propelled vehicle, though containing merchandise and left standing in a street, does not come within the section. The Division Bench held that the words: 'or any other thing' in Section 152, Sub-section (1)(b), must be read ejusdem generis with the words 'box, bale, package or merchandise' used in the section. These words seem to cover merchandise, and things in which merchandise can be packed, and any other thing must be of the same kind or genus and does not include a vehicle. In the alternative before that Division Bench it was argued that though the hand-lorry carrying merchandise might not fall within Section 152(1)(b), it would be covered by Section 152(1)(a); and dealing with the provisions of that clause Sir John Beaumont C.J. delivering the judgment of the Division Bench has observed:
In my opinion that sub-section deals with making some form of addition or annexe, more or less permanent, to a building in the street, It is directed against the man who has a shop or house in the street, and who encroaches upon the street by making some sort of addition to his house or shop.
We respectfully agree with the observations of Beaumont C.J. regarding the-interpretation of Section 152(1)(a) of the Bombay Act and that interpretation would apply to the provisions of Section 185(1)(a) of the Act. When one examines the scheme of the two clauses of Section 185(1), it is clear that what is sought to be hit by Clause (a) is building or setting up of the various types of structures and immoveable things referred to in that clause. The words: 'other encroachment or obstruction' occurring at the end must by the principle of ejusdem generis, refer to the immovability and must in any event come within such property or such article as can be built or set-up It is clear examining the words 'build or set-up' which are the governing words of Clause (a), with the rest of the items which are mentioned in Clause (a), that immobility is the characteristic of the various items mentioned in Clause (a), which are capable of being built or set up.
5. Under Clause (b) on the other hand some types of movable properties which can be placed or deposited as distinguished from built or set-up are sought to be hit and those movable properties which can come within Clause (b) must be box, bale, package or merchandise or any other thing falling within the genus of merchandise and packages in which merchandise can be packed. Under these circumstances, it is clear that in order to fall with Clause (a) or Clause (b), there must be either an immobile object, which is built or set-up or any merchandise or things in which merchandise can be packed. There must be placing or depositing of such merchandise or things in which merchandise can be packed. If such a building or setting up or placing or depositing is on a public street or place, then an offence contemplated by Section 185(1) of the Act can be said to have been committed.
6. Mr. Vyas, for the appellant, drew our attention to the decision of a Division Bench of this High Court in Chaturji v. State II G.L.R. 748. There the Division Bench consisting of Miabhoy J. (as he then was) and Bhagwati J. (as he then was), was construing the provisions of Section 122(1) of the Bombay District Municipal Act, 1901. That section is in part materia and identical with the language of Section 152 of the Bombay Municipal Boroughs Act, 1925, and Section 185(1) of the Gujarat Municipalities Act. In that case, before the Division Bench, the respondent was the owner of a hotel situated on the main road going from the tower-chowk to the bus-stand in the city of Jasdan. The respondent applied to the Jasdan Municipality for letting out a portion of the land in front of the hotel for raising a shed for the benefit of his customers during summer. The Jasdan Municipality let out a portion of the land in front of the respondent and the respondent erected a shed on this portion of the land and kept benches there for his customers. The period for which this portion of the land was let out to the respondent was upto 31st August 1959. After the period of the lease expired, the respondent removed the shed but continued to keep the benches on the portion of the land which had been earlier let out to him. The respondent thereafter made an application to the Jasdan Municipality for a further lease of this portion of the land for a period of one year, but the application was rejected by the Jasdan Municipality. As the respondent continued to keep the benches on this portion of the land notwithstanding the expiry of the period of the lease granted to him, the Jasdan Municipality issued a notice calling upon the respondent not to keep anything on that portion of the land. The respondent failed to comply with the notice and thereafter a complaint was filed against him by the Jasdan Municipality. One of the contentions before the Division Bench was that since the respondent in that case was a tenant by holding over or by sufferance, there could not be any question of encroachment or obstruction on any public street. This argument was rejected by the Division Bench and it was observed by Bhagwati J. (as he then was) delivering the judgment of the Division Bench at page 251 of the report:
It is, therefore, clear that the respondent cannot get out of the provisions of Section 122(1) by, pleading that he was a tenant at sufferance or a tenant holding over in respect of the portion of the public street on which he was keeping benches.
The Division Bench was also of the view that the complaint was barred by limitation and the Division Bench, therefore, dismissed the appeal. It is true that in that particular case, it seems to have been taken for granted that keeping of benches on the public street would amount to obstruction or encroachment on the public street. The point with which we are concerted in the present case, viz., scope of the two clauses of Section 185(1) of the Gujarat Municipalities Act, Section 122(1) of the Bombay District Municipal Act or Section 152(1) of the Bombay Municipal Boroughs Act did not arise for consideration before the Division Bench. The decision of Sir John Beaumont C.J. in Emperor v. Hasam Mamad (supra) was not referred to by the Division Bench because ultimately the decision of the Division Bench turned upon the question of limitation and the conclusion of the Division Bench in that particular case was that the complaint was barred by limitation. The decision in Chaturji's case (supra), therefore, is not in any way in conflict with the decision of the Bombay High Court in Emperor v. Hasam Mamad (supra). The Division Bench In Chaturji's case was not called upon to consider and has not in fact considered as to whether any movable object other than merchandise or things in which merchandise can be packed comes within the mischief of Section 122(1)(a) or (b) and in view of the facts of that particular case It is clear that Chaturji's case (supra) cannot help the appellant in this case.
7. Mr. Vyas, on behalf of the appellant, contended before us that the words: 'any projecting structure or thing or other encroachment or obstruction' occurring in Section 185(1)(a) of the Gujarat Act are wide enough to include even a hand-cart or a hand-lorry which was kept in any public place or street. This argument must be rejected because the governing words in Section 185(1)(a) of the Act are 'shall have built or set up, or shall build or set up' and unless and until one comes to actually building or setting up of any particular object or article, the provisions of Section 185(1)(a) of the Gujarat Municipalities Act cannot be brought into play. It is difficult to accept the contention that keeping a hand-lorry or placing a hand-lorry for the purpose of plying the trade of an ice-vendor amounts to building or sitting up any encroachment or obstruction; and in our opinion a case like the present one can never be governed by Section 185(1)(a) of the Act.
8. Under these circumstances, we hold that the learned Judicial Magistrate, First Class, Bagasara, was right when he acquitted the accused. This appeal, therefore, fails and is dismissed. Mr. Vyas, on behalf of the appellant, has applied for leave to appeal to the Supreme Court under Section 134(1)(c) of the Constitution. That oral application is rejected because, in our opinion, the case is not a fit one for appeal to the Supreme Court.