- (1.) THIS is a reference made by the Sessions Judge, Bharatpur and it arises out of the following circumstances.
(2.) PETITIONER Mst. Dhoopo raised certain constructions within the municipal limits of Deeg without the permission of the Municipal Board and, therefore, a notice was issued to her by the Municipal Board, Deeg, to refrain from making the construction. When she did not pay any attention to that notice and continued the construction undertaken by her, the Municipal Board, lodged a complaint against the petitioner in the court of the Sub-Divisional Magistrate, Deeg under secs. 170 (11), 203 and 251 of the Rajasthan Municipalities Act, 1959. The learned Magistrate after recording the evidence of the parties found the petitioner guilty of committing offence of raising construction on a public street without the permission of the Municipal Board and, therefore, she was convicted under secs. 170, 203 and 251 of the Rajasthan Municipalities Act,1959, and she was sentenced to pay fine of Rs. 10/,- 25/-and Rs. 15/- respectively on these counts. The learned Magistrate also ordered that in default of the payment of the fine she would serve simple imprisonment for a week. The petitioner thereupon preferred a revision application before the District and Sessions Judge, Bharatpur, who after hearing the parties came to the conclusion that the petitioner has not committed any offence under the Rajasthan Municipalities Act and therefore, recommended that the conviction and sentence passed by the learned Sub-Divisional Magistrate may be set aside. While making this recommendation the learned Judge further observed that the learned Magistrate had no jurisdiction to award a sentence of imprisonment in lieu of fine in view of the provisions of sec. 265 (2) of the said Act. This reference raises certain important questions of law which I would like to deal one by one. The learned Judge came to the finding that the petitioner had raised construction in her private building therefore, she could not be convicted under sec. 170 (11) of the Act. This recommendation is probably made on the assumption that 170 is applicable only when the construction is raised on land belonging to the municipalities and as the petitioner was raising a construction on her private land she could not be found guilty of an offence under sec. 170 of the Act. This, in my opinion, is a misreading of the law. Sec. 170 (11) of the Act reads as follows - "sec. 170 (11 ). Whoever begins, continues or completes the erection or re-erection of, or any material alteration in, a building or a part of building or the erection or re-erection of any projecting portion of a building in respect of which the board is empowered by sec. 166 to enforce a removal or set-back or the construction or enlargement of a well without giving the notice required by sub-sec. (1) or in contravenetion of any provision of this section or of an order of the board made under sub-sec. (6) or sub-sec. (7) shall be liable on conviction to a fine which may extend to two hundred rupees. . . . . . " The perusal of this section indicates that the offence envisaged under this provision is for raising construction without giving notice as required by sub-sec. (1), or in contravention of any order of the board made under sub-sec. (6) or sub-sec. (7) of this Act. The charge against the petitioner was that she had started construction without any notice to the board as required under sub-sec. (1) of this section and, therefore the question of raising construction on public place or on municipal land is not an ingredient to commit an offence under sub-sec. (11) of sec. 170 of the Act. This is admitted that no permission was ever sought by the petitioner to raise construction even in her private building and, therefore, she cannot be absolved from the liability of raising construction without permission. In such circumstances the conviction under sec. 170 (11) is quite in order. The learned Judge after appreciating the evidence adduced by the parties in the case came to the conclusion that the petitioner neither made any encroachment on any public street, or open space, nor did she obstruct the same and, therefore, the conviction under sec. 203 was uncalled for. In view of the finding arrived at by the learned Judge for which I do not find any reason to take a different view, I agree with the opinion expressed by him in his reference order. As regards her conviction under sec. 251 of the Rajasthan Municipalities Act, 1959, I agree with the learned Judge that it being a residuary section it could not be attracted to the instant case, as the petitioner was specifically charged for the contravention of the provisions of sec. 170 which provides for the punishment. Under these circumstances conviction of the petitioner under secs. 203 and 251 cannot be maintained. As regards awarding of sentence of imprisonment in lieu of payment of fine, it is contended by the learned Assistant Government Advocate that the Rajasthan Municipalities Act being a special law within the meaning of sec. 41 of the Indian Penal Code, any offence committed thereunder would be an offence under sec. 40 (2) of that Code and would attract the application of sec. 64 which provides for awarding the sentence of imprisonment in lieu of fine. Sec. 64 of the Indian Penal Code reads as follows : - "sec. 64 - Sentence of imprisonment for nonpayment of fine - In every case of an offence punishable with imprisonment as well as fine, in which the offender is sentenced to a fine, whether with or without imprisonment. and in every case of an offence punishable with imprisonment or fine, or with fine only, in which the offender is sentenced to a fine. It shall be competent to the Court which sentences such offender to direct by the sentence that, in default of payment of the fine, the offender shall suffer imprisonment for a certain term which imprisonment shall be in excess of any other imprisonment to which he may have been sentenced or to which he may be liable under a commutation of a sentence. " Replying on this provision of the law, the learned Assistant Government Advocate submits that where an offence under the Rajasthan Municipalities Act is punishable with a sentence of fine only, the Magistrate can by virtue of the said provision of the Indian Penal Code impose a sentence of simple imprisonment in default of the payment of fine. The Indian Penal Code has classified the offences for different purposes. In some cases offences are only offences under the Indian Penal Code, but under sec. 40 IPC the definition of the word "offence" is enlarged for the purpose of secs. 64 to 67 of the Code and the word "offence" for that purpose includes an illegal act under the Indian Penal Code, or under any special or local law, as defined in secs. 41 and 42 of the Indian Penal Code. According to sec. 41 "special law" is a law applicable to a particular subject and by virtue of sec. 42, "local law" is a law applicable only to a particular part of India. There can, therefore, be no doubt that the Rajasthan Municipalities Act, 1959 is a special law, as well as local law within the definition of secs. 41 and 42 of the Indian Penal Code and as such the application of sec. 64 IPC cannot ordinarily be ruled out to the offences under the Rajasthan Municipalities Act, but this proposition has got to be considered in view of the special provision of sec. 265 (2) of the Rajasthan Municipalities Act. Learned Asstt. Govt. Advocate in support of this argument has cited a Supreme Court case in Bashiruddin Ashraf vs. The State of Bihar (1 ). In that case a 'mutawalli' was charged for the violation of the provisions of sec. 58 of the Bihar Waqfs Act, (8 of 1948) for not discharging the obligation enjoined upon him as a 'mutawalli' and, therefore, he was convicted under sec. 65 (1) of the said Act by the Divisional Magistrate, Patna and he was sentenced to pay a fine of Rs. 100/- and in default to undergo 15 days simple imprisonment. On appeal filed by the convict an objection was raised before the Supreme Court that the Magistrate had no power to award a sentence of imprisonment, as the law did not prescribe any imprisonment in lieu of the fine imposed under the provisions of the said Act. Learned Judges of the Supreme Court while dealing with this question observed : "it was also pointed out that sec. 65 does not provide for any imprisonment in default of payment of fine, but the appellant was sentenced to 15 days simple imprisonment in default of payment of fine sec. 33 of the Code of Criminal Procedure read with secs. 40 and 67 of the Indian Penal Code appears to us to be a clear answer of this contention. " Another case relied upon by the Assistant Government Advocate is that of Sukhdeo Singh vs. Calcutta, Corporation (2), where the petitioner was convicted by the Municipal Magistrate for keeping buffalo within the municipal limit without the permission of the Municipal Board and, therefore, he was fined Rs. 15/- and in default simple imprisonment for a week. The accused raised a similar contention that in lieu of fine the learned Magistrate could not pass a sentence of imprisonment, as such a power was not given to him under the Calcutta Municipal Act (3 of 1923 ). The learned Judge after considering the provision of sections 40, 41, 42, 64 to 67 of the Penal Code came to the conclusion that the learned Magistrate could pass sentence of imprisonment in lieu of fine by virtue of secs. 64 to 67 of the IPC. In my view the above referred cases are distinguishable. In those cases it was never urged that the law under which fine was imposed contained a specific* provision for its recovery in a manner different from the procedure laid down in the Criminal Procedure Code and, therefore, the provision of section 64 IPC could not be attracted. This question was not considered by their Lordships of the Supreme Court, or the Calcutta High Court in the form it has cropped up before me. The Rajasthan Act provides a special mode for the recovery of fine imposed under the Act and sub-sec. (2) of sec. 265 is as follows - "sec. 265 (2) - Any prosecution under this Act or under any rules or bye-laws thereunder may, save as therein otherwise provided, be instituted, before any Magistrate, and every fine or penalty imposed under or by virtue of this Act or any rule or bye-law thereunder for the recovery of which no special provision is otherwise made in this Act, may be recovered on application to such magistrate by the (distress and sale of any movable property within the limits of his jurisdiction belonging to the person from whom the money is claimable. " This provision prescribes a mode for the realisation of fine by issuing distress warrant and sale of movable property of the convict within the municipal limits. This manner of realisation is different from the procedure prescribed by the Criminal Procedure Code which shows that the legislature intended to provide a specific mode for the recovery of fine imposed under the Rajasthan Municipalities Act, 1959 which is different from the one given in general law. Rajasthan Municipalities Act, 1959 being a special law providing a definite mode for dealing with the sentence of fine, the provision relating to it. in the general law, i. e. , in the Indian Penal Code and Criminal Procedure Code cannot be made applicable for the recovery of fine imposed under this special enactment. I find that in the above referred two cases no such plea was taken either before the Supreme Court or before the Calcutta High Court that the law under which the fine was imposed provides special procedure for the realisation of fine which is different from the provisions contained in the Indian Penal Code and, therefore, provisions of the general law would not be attracted for the recovery of fines imposed under the special law ; nor did the learned Asstt. Government Advocate could point out to me that the laws under which fine was imposed in these two cases contained provisions analogous to sec. 265 (2) of the Rajasthan Municipalities Act. This case is therefore, distinguishable on account of the special provision in the Rajasthan Municipalities Act which provides a special mode for the recovery of fine imposed under the Act by issuing a distress warrant and sale of movable property within municipal limits. In this view of the matter provision of sec. 64 I. P. C. which deals with the power of the criminal court for awarding sentence of imprisonment in lieu of fine cannot apply to the cases where fine is imposed under the Rajasthan Municipalities Act, 1959. The Legislature while enacting the Rajasthan Municipalities Act, 1959 never intended that persons disobeying the orders of the Municipal Board should be sent behind the bars and it is why special provision has been enacted to enable the Magistrate to recover the fine imposed by him, or other authorities to realise the claims of compensation or other expenses for the recovery of which no special provision has been made in the said Act. In view of what has been discussed above, I am of the opinion that the learned Magistrate had no jurisdiction to impose a sentence of imprisonment in lieu of fine and the only way open to the learned Magistrate was to follow the procedure laid down in sec. 265 sub-sec. (2) for the recovery of fine imposed by him under the Municipal Act.
(3.) THE reference is partly allowed. THE conviction of the accused petitioner Mst. Dhoopo under sec. 170 (11) is maintained, the conviction and sentence under secs. 203 and 251 of the Rajasthan Municipalities Act are set aside. THE order of the learned Magistrate awarding a sentence of imprisonment in lieu of fine is also set aside. .;