Ramzan v. Municipal Board Of Benares

1. This is an application for revision of an order of the Joint Magistrate, Benares, convicting applicant under Sections 185 and 307 of the 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 S. 185 of the Act, has not been seriously disputed.

2. It is further alleged that on the 15th April 1923 he was served with a notice to demolish the wall within three days. On the 18th of 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 S. 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 been properly proved. It is not on the record as it should have been and the mere 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 December 1st 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 most of the High Courts. The Allahabad ruling is contained in the orders passed in Amir Hasan Khan v. King-Emperor (1). 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 of the Municipalities Act be quashed and that the words referring to a continuing fine be deleted from the order.

4. The record is forwarded under Section 438 of the Cr PC with the explanation of the lower Court.

JUDGMENT

5. I agree with the view taken by the learned District Magistrate. The conviction under Section 307 of the Municipalities Act, is quashed and the words referring to a continuing fine are deleted from the order.

6. Conviction set aside.