DAVE, J. - (1.) THIS reference comes on the report of the learned Sessions Judge, Ajmer, dated the 7th December, 1961.
(2.) THE facts giving rise to it are that the Municipal Committee, Ajmer, lodged a complaint against one Satya Narain in the court of the Municipal Magistrate. It was alleged that the Administrator of the said municipality had given a notice to the accused u/sec. 248 of the Rajasthan Town Municipalities Act, 1959 ('which will hereinafter be referred as the Act) for closing his Gota factory, on 27th June, 1961, but he did not comply with that notice even by the 2nd of August, 1961, and therefore it prayed that he should be convicted under sec. 251 of the Act. The accused pleaded not guilty in the trial court, but the Municipal Magistrate, who tried the case, convicted him under sec. 251 of the Act and sentenced him to pay a fine of Rs. 40/- or to undergo 10 days' simple imprisonment in default of its payment. Aggrieved by that judgment dated 4th November, 1961, the accused filed a revision application in the court of the Sessions Judge, Ajmer. The learned Sessions Judge has reported that the conviction of the accused is not well founded and therefore he has recommended that he should be acquitted. Learned counsel for the accused and the learned Deputy Government Advocate both support the reference. I agree with the learned Sessions Judge that the provision of sec. 251 of the Act could not be invoked in this case and the Magistrate had obviously committed an error in convicting and sentencing the accused under that section. It may be pointed out that sec. 251 provides punishment for disobedience of orders which are not punishable under any other section of the Act. In the present case, it was alleged by the prosecution that the notice which was given to the accused was under sec. 248 of the Act. Sub-sec. (2) of sec. 248 provides that if some persons to whom notice has been given under sub-sec. (1) uses any place or permits it to be used in such manner as to be a nuisance to the neighbourhood or dangerous to life, health or property, he shall be punished with fine provided therein. In other words, if there is contravention of a valid notice given under sec. 248 (1) and if the offender is prosecuted for its contravention, the punishment is provided by sub-sec. (2) itself and therefore sec. 251 of the Act would not apply. If the conviction of the accused were well-founded, it could be altered from sec. 251 to sec. 248 (2), but from the perusal of the record, it appears that the prosecution has not been able to make out any case against him. It may be pointed out that the notice (Ex. P1) which was given to the accused on 27th June, 1961 did not make it clear in what manner the Gota factory run by him was becoming nuisance and dangerous to life, health or property of the persons residing in the immediate neighbourhood. A notice under sub-sec. (1) of sec. 248 of the Act could be issued by the Board only if it were satisfied that any building or place used or intended by any person to be used was covered by one of the clauses (a) to (s) mentioned thereunder. In the present case, clauses (a) to (r) could not possibly be applied because the Gota factory could not be covered by anyone of them. It seems that the municipal board thought that the Gota factory was covered by clause (s) which relates to "a manufactory or place of business of any other kind from which offensive or unwholesome smell, fume, soot or dust arisesor which may involve risk of fire". The perusal of the record, however, does not show if there was any allegation against the accused that the Gota factory which he was running, emitted any offensive or unwholesome smell, fume, soot or dust or involved risk of fire. The only allegation which was made against the accused by certain persons in February, 1961, was, that the running of the said factory created noise which amounted to nuisance. The language of clause (s) of sub-sec. (1) of sec. 248 of the Act does not, however, cover the case of noise. In Jankiballabh Vs. State (1) it was held by a learned Judge of this Court that the words "from which offensive or unwholesome smell, fume soot or dust arise or which may involve risk of fire" qualified not only the words "place of business of any other kind" but also the word "manufactory". Although in the above-cited case, the learned Judge was considering the interpretation of sub-sec. (4) of sec. 203 of the Jaipur City Municipalities Act, 1943, the language used therein was identical with the language of sec. 2 48 (1) (s ). I agree with the observation made above. It is thus obvious that the notice issued by the Municipal Committee, Ajmer, was itself invalid, since it was not in accordance with law. Moreover the perusal of the trial court's record shows that P. W. 3 Ram Narain Toshniwal and P. W. 4 Dev Kishan, who were examined by the prosecution to prove the nuisance regarding noise, did not support the allegation made against the accused. On the contrary, it was admitted by them that they had no complaint left about the noise created by the factory long before the prosecution was launched. According to the prosecution, the factory was creating noise till the 2nd of August, 1961, but both the witnesses, named above who were living in the neighbourhood of the factory stated that the grievance made by them earlier was redressed by the accused himself long before the alleged date of occurrence. Under these circumstances, there was absolutely no justification for the prosecution of the accused and the trial court had committed an error in convicting him. The reference is therefore allowed. The conviction of accused Satya Narain and the sentence awarded to him are set aside. The fine, if paid by him, will be refunded. . ;