- (1.) THIS is an appeal by the State against the judgment of the Magistrate First Glass, Churu, dated 5. 12. 56, acquitting accused, Sohanlal, of offences under sections 108 (3), 122 and 165 of the Rajasthan Town Municipalities Act No. 23 of 1951 (which will hereinafter be referred as the Act ).
(2.) THE facts giving rise to it are that, on 13. 1. 56, accused Sohanlal presented an application, dated 9. 1. 56, in the Municipal Board, Churu, seeking permission to make certain constructions in his building, situated in a locality called 'aguna Mehla ki Mori' at Churu. He also presented with that application plan of his existing building and the changes which he wanted to make therein. On 20. 6. 56, the Chairman, Municipal Board, Churu, presented a complaint in the court of the Magistrate First Class, Churu, under sec. 108 (6) and sec. 165 of the Act. It was alleged by the complainant that on 19. 6. 56 the accused was informed in writing by a notice that the permission sought by him was refused by the board, but inspite if that notice he continued to carry on the constructions on 20 6-56, that on the 21st June, 1956, the accused presented a reply to the notice of the board which clearly showed that he had committed the offences alleged against him and therefore it was prayed that he should be convicted and punished. When the accused was examined by the trial court, he replied that he had finished all his constructions before 12. 6. 56 and that he had not committed any offence, He also filed his written statement in the court. After examining evidence of both the parties, the trial court did not clearly decide the point whether the accused had disobeyed the notice of the board, dated 19. 6. 56. It dismissed the complaint on the ground that the application of the accused, dated 9. 1. 56, was presented in the board on 13. 1. 56, that according to sec. 108 sub-section (4), the board ought to have passed some orders either under sub-section (2) or sub-section (3) within a month from the receipt of the application made by the accused and since it failed to do so, the accused got a right to carry on the constructions even without the permission of the board. It was further held that this right could be enjoyed by the accused for one year according to sub-section (5) and before the expiry of that period the board had no right to serve any notice upon him. It may be mentioned here that the argument on behalf of the complainant in the trial court was that even before 19 6-56 a notice was served earlier on the accused on 13. 2. 56 that he should not carry on the constructions. Adverting to this argument, the trial court remarked that the notice of 13. 2. 56 or the subsequent notice of 19. 6. 56 could not take away the right of the accused to carry on the constructions and, therefore, he could not be convicted under sec. 108 (6) or 165 of the Act. It was further urged on behalf of the complainant in the trial court that under sec. 122 of the Act, the accused could not construct the balcony without specific permission of the board and that he had committed an offence under that section at any rate. This argument was also repelled by the trial court by saying that the provisions of sec. 122 of the Act, were not attracted, because the board had not framed bye-laws as required by that section. Learned Deputy Government Advocate has urged that the view taken by the trial court about all the three sections, that is 108, 122 and 165 of the Act, is incorrect and, therefore, its order should be set aside. Learned counsel for the accused has, on the other hand, tried to support the trial court's view. We have, therefore, to determine whether the accused has committed any offence punishable under sec. 108 (6) or 122 sub-sec. (2) or 165 of the Act. It is common ground between the parties that the accused had present" ed his application dated 9. 1. 56, on 13. 1. 56 in the municipal board along with the plan and that he was not intimated with any order thereon till the expiry of one month from 13. 1. 56, i. e. , by the 12th of February, 1956. It was on 13. 2. 56, that the accused was given a notice for the first time that he should not carry on any constructions and that his application was under consideration. On that day, however, the statutory period of one month had already expired and therefore, the accused had got a right to carry on the constructions permissible by sec. 108 (4), which runs as follows: - "a building proposed in a notice given under sub-section (1) may be proceeded with in such manner as may have been specified in such notice and as it is not inconsistent with any provision of this Act or of any bye-law tor the time being in force thereunder in the following cases, that is to say: - (a) in case the municipal board within one month from the receipt of the notice given under sub-section (1), has neither - (i) passed orders under sub-section (2) and served notice thereof in respect of the intended work; nor (ii) issued under sub-section (3) any provisional order or any demand for further particulars. (b) in case the municipal board, having issued such demand for, and having received in accordance with the byelaws in force in this behalf, such further particulars, has issued no further orders within one month from the receipt of such particulars. " It is clear from the language of the above sub-section that if the municipal board fails to pass orders as contemplated by clause (a) within one month from the receipt of the notice given under sub-section (1), then the applicant may proceed with the constructions specified in the notice given by him, provided those constructions are not inconsistent with any of the provisions of the Act. Learned Deputy Government Advocate has not been able to point out if the municipal board had passed any orders required by law within one month from the receipt of the notice on behalf of the accused and, therefore, the trial court was correct in saying that the accused was not punishable under sub-section (6) of sec. 108. We may, however, point out here that we do not agree with another reason which has been given by the trial court for acquitting the accused under sec. 08 (6 ). The trial court has remarked that the municipal board could proceed under sec. 108 (6), against the accused only if it had fixed a regular line of public streets under sec. 101 and if it had thereby got the authority provided under sec. 102 of the Act. In the words, the trial court seems to be of the view that unless the board fixes a regular line of public streets, it is not necessary for any body to give a notice for permission to make constructions under sec. 108 (1) It may be observed that this view is incorrect. Sec. 10 sub-section (1) runs as follows: - "it shall be lawful for such municipal board as may be notified by the Government in this behalf to prescribe a line on either side or both sides of any public street within the municipality and the municipal board may from time to time prescribe a fresh line in substitution of any line so prescribed, or for any part thereof. " It would appear from the language of the above sub-section that it empowers a municipal board which may be notified by the Government in this behalf to prescribe a regular line on one or both sides of any public street within the municipality. It further empowers the municipal board that it has authority to prescribe a fresh line in place of the line previously prescribed or for any part thereof from time to time as it may think proper. The remaining part of this section then lays down in what manner the regular line is to be prescribed and since it is not relevant to this case, it has not been reproduced here and need not be discussed. Sec. 102 of the Act then empowers a municipal board that if a regular line of public street is prescribed under sec. 101 and thereafter it finds that if any part of the building projects beyond that line or beyond the front of the building en either side thereof, then the municipal board may take steps to set back the projecting buildings in the manner provided in this section. Then. Sec. 108 sub-sec. (1) runs as follows. "before beginning to construct any building or to alter externally or add to any existing building or to construct or reconstruct any projecting portion of a building in respect of which the municipal board is empowered by sec. 102 to enforce a removal or set-back or to construct or reconstruct which the municipal board is empowered by sec. 101 to give permission, the person intending so to construct, alter, add or reconstruct shall give to the municipal board notice thereof in writing and shall furnish to it at the same time, if required by a bye-law or by special order to do so, a plan showing the levels at which the foundation, and lowest floor of such building are proposed to be laid by reference to some level known to municipal board, and all information required by the bye-law or demanded by the municipal board regarding the limits, design, ventilation and materials of the proposed building, and the intended situation and constructions of the drains, sewers, privies, water closets and cess pools, if any to be used in connection therewith, and the location of the building with reference to any existing or projected streets, and the purpose for which the building will be used. " It would appear from the language of the above sub-section that if somebody wants to construct or reconstruct any projecting portion of a building in respect of which the municipal board is empowered by sec. 102 to enforce a removal or set-back or to construct or reconstruct which the municipal board is empowered by sec. 101 to give permission, then it is certainly incumbent upon him to give a notice as required by the aforesaid sub section. This however, does not mean that one has to give notice only in the above case. The earlier portion of this sub section clearly lays down that 'before beginning to construct any building or to alter externally or add to any existing building one has got to give a notice under this sub-section, otherwise he would be liable to be punished under, sub sec. (6 ). This makes it quite clear that whether a municipal board has fixed a regular line of a public street or not, if somebody wants to construct a new building then before beginning the construction he must give to the municipal board a notice in writing to seek its permission. Similarly, if some one has already got a building within the jurisdiction of the municipality and if he wants to alter it externally or he wants to add anything to it, then too he must give a notice and if he fails to do so, he would certainly be liable to punishment under sub-sec. (6 ). The trial court was therefore wrong in saying that even if the accused had not given any notice he could not be punished under sub-sec. (6), because the Municipal Board had not fixed a regular line of the street under sec. 101. If the accused had not given a notice, we would have had no hesitation in convicting him under sub sec. (6), but since he gave a notice and the municipal board slept over it for one month, we cannot convict him under sub-sec. (6 ). Now coming to sec. 122, the trial court has remarked that the provision of this section could be applicable only if the municipal board had framed bye-laws, and since no such bye-laws were existing, the accused could not be punished under that section. This view has been challenged by the learned Deputy Government Advocate and we think rightly too. It would be proper to reproduce here the relevant portions of sec. 122. " (1) The municipal board may give written permission to the owners or occupiers of buildings, in public streets to put up open varandahs, balconies or rooms to project from any upper storey thereof at such height from the surface of the street as the municipal board may fix by bye-laws from time to time, and to an extent not exceeding four feet beyond the line of the plinth or basement wall, and may prescribe the extent to which and the conditions under which roofs, eaves, waterboards, shop boards and the like may be allowed to project over such streets. (2) Any such owner or occupier putting up any such projection as aforesaid without such permission or in contravention of such orders shall be punished with fine which may extend to twenty-five rupees, and, if any such owner or occupier fails to remove any such projection as aforesaid in respect of which he has been convicted under this section, he shall be punished with further fine which may extend to five rupees for each date on which such failure or neglect continues. " Learned counsel for the accused has urged that since sub-sec. (1) contemplates that the municipal board should make bye-laws and since no such bye-laws were made by the board, the trial court was correct in saying that this section did not apply. It may be observed that this contention is not correct. It is true that sub sec. (1) empowers a municipal board that it may from time to time make bye-laws for its guidance and in order to ensure a uniform treatment for determining length of the projection and the height of the varandahs, balconies and other projections etc. , but this does not mean that if no such bye-laws are made, people are free to make any projection they like without obtaining permission of the municipal board. In other words whether the municipal board frames bye-laws or not, one has got to obtain permission of the municipal board, if his case comes within this section. Learned counsel for the accused has next urged that his client had sought permission by a notice under sec. 108 and that after one month, he was free to make the projections according to his plan. He means to say that the accused could not be convicted under sub-sec. (2) of sec. 122, since he had given a notice. In our opinion, this argument also is not correct, because sec. 122 is independent of sec. 108 and if somebody wants to make projections on the municipal land, i. e. , if those projections are not over his own land, then he cannot do so without getting express and written permission of the municipal board under this section. Sec. 108 can come to his aid only if the projections are on his own land. In the present case, it has been urged by learned Deputy Government Advocate that the projections and balconies which the accused has constructed are on the municipal land and therefore he is liable to conviction. We would have proceeded to consider this request if we would have found that the trial court had acquitted the accused after trying him for this offence. But from the perusal of the record, we find that the complaint of the municipal Board was filed only about the disobedience of its notice dated 19. 6. 56 and the conviction of the accused was sought only under sec. 108 (6) and 165 of the Act. There was no allegation in the complaint regarding the offence under sec. 122 and it appears that the accused was not questioned about it. Under the circumstances, the trial court ought not to have considered sec. 122 at the time of its judgment and passed an order of acquittal thereunder. Thus, we can only set aside the acquittal of the accused under sec. 122, but we cannot proceed to convict him. It is open to the municipal board to proceed against the accused under that section if it so desires. We have dealt with this section only to explain its meaning, since it was not correctly understood by the trial court. It now remains to consider sec. 165. It provides punishment for disobedience of orders and notices of the municipal board, which is not punishable under any other section. It is, therefore, clear that if some other section is applicable the provisions of this section would not be attracted. It appears that the municipal board tried to seek conviction of the accused under this section on the ground that he had disobeyed its notice, dated 19 6-56. The reply of the accused was that he had completed all his constructions by the 12th of June, 1956, that he had not carried out any constructions thereafter and that the question of disobedience of the order of the municipal board, dated 19. 6. 56, did not arise. We have gone through the record of the trial court and we find that the prosecution had examined 5 witnesses ; of them P. W. Gulabchand was the Sanitary Inspector, P. W. 2 Gulabchand and P. W. 3 Malchand, were neighbours of the accused and P. W. 4, Norang and P. W. 5 Jiwan, were examined about the service of the notice upon the accused. None of these witnesses has deposed clearly what particular construction was made by the accused after the service of the notice, dated 19. 6. 56. Even P. W. Gulabchand, has not clearly stated how far the constructions had proceeded by 19 6-56 before the notice was issued and in what manner it was disobeyed thereafter. It has also not been pointed out under what provisions of law the notice of 19. 6. 56 was issued. We have gone through the notice and find that it is vague, inasmuch as it did not direct the accused that he was prohibited from proceeding with a particular construction. The accused was only informed thereby that the permission which he had sought was refused, that he should not make any construction and that if he did so, he would be punishable for it. Now, it is clear that the municipal board could not direct the accused to stop those constructions which he was entitled to carry out under sec. 108 (4) as for example external changes in his own building, because he had got that right after the expiry of one month's notice. The board could certainly prohibit him from making constructions which came within the purview of sec. 122 or of any other section properly applicable, but then it should have been made quite clear in the notice. As pointed out above, the plea of the accused is that he had completed his constructions by 12. 6. 56 and there is nothing on record to show what constructions he made after the notice of 19. 6. 56. Therefore, it is not possible to convict him under sec. 165 of the Act. The acquittal of the accused under sections 108 (6) and 165 of the Act is, therefore, correct and the appeal to that extent is dismissed. As regards the offence under sec. 122, the appeal is allowed and the acquittal of the accused is set aside though not on the merits of the case but because there was no complaint about it. If the municipal board thinks that the accused has contravened the provisions of sec. 122 of the Act, it is open to it to file a proper complaint in a competent Court. . ;