Chandavarkar, J.:— I regret I have to differ from my learned colleague in this case. With all respect I find I cannot agree with him in holding that the question arising here for our decision is one of fact. In my opinion the facts found by the learned Magistrate are as alleged by the complainant. So the Magistrate states in his judgment and the only question is, whether upon those facts, the act of the accused is of such a nature as to make it punishable under section 96 of the Bombay District Municipal Act.
The fact found by the Magistrate is that the accused reconstructed the south wall of his house on the old foundation. That is the only fact. The case is thus on all fours with Emperor v. Kalekhan Sardarkhan*, and I entirely concur in its conclusion of law and interpretation of the material sections of the Act. In my opinion, a wall such as this expressly falls under the Act within the definition of building; and its reconstruction amounts to erecting a building of which notice must be given as required by the Act. I would allow the appeal and convict the accused. But as my learned colleague and I differ, the case must be submitted to the learned Chief Justice for the purpose of reference, according to law, to a third Judge.
Heaton, J.:— B.H DeSouza was prosecuted under section 96 of the District Municipal Act (Bombay Act III of 1901) for beginning to erect a building without giving the required notice. He was acquitted and the Government of Bombay have appealed against the acquittal.
The facts are that he rebuilt the entire southern wail of his house except the foundations. He also repaired two other walls, but those repairs were not taken by the Government Pleader as affecting the case. He relied exclusively, and it seems to me rightly, on the rebuilding of the southern wall.
By the explanation to section 96 “to erect a building” includes “any material alteration, enlargement, or re-construction of any building.” There has not been a material alteration or enlargement but there has been re-construction of the southern wall of the house. Is that a re-construction of a building ? The Government Pleader argues that it is because by the defining section of the Act “building shall include any hut, etc., and shall include also walls, verandahs, fixed platforms, plinths, door-steps and the like.” This may mean that any wall or doorstep, etc., is in itself a building; or that a building includes all its walls, door-steps, etc. If the former interpretation be taken, then the southern wall of DeSouza's house is a building and it has been re-constructed. This is the case argued by the Government Pleader. If the latter interpretation is taken, then the southern wall of the house is only a part of the building; the building is the whole house.
If we were dealing with a wall standing by itself we should be dealing with a building. But where we have a complex building such as a house, it seems to me that the “building” meant by section 96 is the whole house and not a selected portion of that whole such as the southern wall.
My reasons for so thinking are these : sections 92 to 98 of the Act deal with “powers to regulate building, etc.” These sections deal with buildings, parts of buildings, external walls of buildings, projecting portions of a building, and in section 98 the plinth is referred to, clearly, as a part of a building. The explanation to section 96 from (6) to (d) and (f) clearly contemplates complex buildings as entities. The scheme of these sections, it seems to me, contemplates a “building” ordinarily as a complex structure made up of walls, etc. I do not say that it does not contemplate simple structures also, such as an isolated wall. But when we have a complex structure such as a house, the building as contemplated by section 96 is the whole house and a single wall of the house is not by itself a building but only a part of a building.
Therefore, I think that this appeal on the ground on which it is argued must fail, for the argument is that there has been re-construction of a building, not merely of a part of a building.
At the same time I do not wish to be understood to say that the re-construction of a wall cannot be a re-construction, within the meaning of section 96, of that building of which it forms a part. It may be the section intended to leave it to be determined as a question of fact in the particular case, whether the re-construction of any particular wall or portions of a building is substantially a re-construction of the building. It may mean this. If it does, then it is a question of fact whether there has or has not been substantially a re-construction of the building. The Magistrate has found in this case that there has not been a re-construction. The materials on the record do not enable me to say that he is wrong.
Therefore I would dismiss the appeal.
Owing to this difference in opinion, the case was heard by Scott, C.J
G.S Rao, Government Pleader, for the Crown.
Ratanlal Ranchhoddas, for the accused.
Scott, C.J:— The question referred to me may be formulated thus: Whether the re-construction of a wall upon its own foundation is necessarily the ‘erection of a building’ within section 96 of the District Municipal Act ? According to the explanation appended to that section the expression ‘to erect a building’ throughout Chapter IX includes any material altera tion, enlargement, or re-construction of any building. Whether the re-construction of a wall of whatever importance forming part of a house is necessarily the ‘erection of a building depends upon whether the interpretation-clause, section 3(7), is to be taken as substituting impliedly for the word ‘building’ wherever it occurs in the Act not merely all erections falling within the ordinary comprehension of the term ‘building’ but also all other things included within the definition. It is recognised in England to be a rule with regard to the effect of interpretation-clauses of a comprehensive nature such as we have here that they are not to be taken as strictly defining what the meaning of a word must be under all circumstances, but merely as declaring what things may be comprehended within the term where the circumstances require that they should (see the judgment of Lord Denman in The Queen v. The Justices of Cambridgeshire, of Lord Selborne in Meux v. Jacobs, and of Lord Watson in the Mayor &c, of Portsmouth v. Smith).
In the present case the only complaint is that a small wall was built on an old foundation without the permission of the Municipality. The Magistrate has held that in erecting this wall the accused was not ‘erecting any building’ within section 96, and this conclusion must, I think, be accepted unless it can be said as a matter of law that the material re-construction of a small wall must constitute the ‘erection of a building’.
For the reasons above stated I do not think that the Court is precluded from giving to the word ‘building’ in that section its ordinary meaning, a meaning which the neighbouring sections indicate as the sense in which the Legislature was using that expression in the group of sections of which section 96 forms part. It is possible that the re-erection of a wall may (under certain circumstances) amount to the material re-construction of a building under section 96, but I do not think it necessarily does. In Emperor v. Kalekhan Sardarkhan*, referred to by Chandavarkar, J., the applicant had treated the re-erection of his wall as falling within the section and had applied for leave to re-erect it but did not wait to see if the permission would be granted or refused and there was no appearance on behalf of the accused. In the present case the wall is a small wall and has all along been regarded by the applicant as not a building within the section 96. I concur with Mr. Justice Heaton in thinking that the application should be dismissed.
Application dismissed.
R.R