Gir Prasad Gupta v. State — 1957 DIGILAW 395 (ALL)

JUDGMENT Takru, J. - This appeal by the state of UP is directed against an order of the Sub-Divisional Magistrate, Chail, district Allahabad by which he dismissed a complaint filed by the Improvement Trust of Allahabad u/s 185 of the UP Municipalities Act read with S. 49 of the UP Town Improvement Act. The Improvement Trust through its administrator has also filed Revision application against the same order. As both appeal and the revision application are directed against the same order, I propose to dispose them of by a common judgment. 2. The facts leading up to the order under appeal are not in dispute and may be briefly summarised as follows. 3. The Respondent to this appeal is one Sri Gir Prasad Gupta, who also styles himself as Sri Gir Prasad Varshney. He took a plot of land-being Plot No. 552-in the Mumfordganj Housing Scheme, Allahabad, on lease from the Allahabad Improvement Trust hereinafter to be referred as the Trust on certain terms and conditions, and entered into possession thereof. It appears that sometime after coming into possession of the said plot he started constructions thereon but without giving notice to, and obtaining the sanction of, the Trust. On 20-11-1951 the Secretary of the Trust sent a letter to the Respondent (Ex. P2) informing him that the former had come to know that the Respondent had made some construction over the said plot without obtaining the previous sanction of the Trust; and he was therefore asked to stop further constructions at once and to show cause why proceedings for making those unauthorised constructions should not be taken against him. Thereafter on some date which is not clear the Respondent sent a letter to the Chairman of the Trust informing him that as there was some uncertainty with regard to the boundaries of the Respondent's plot and as he the Respondent had collected building materials which were being stolen he had, with the permission of the authorities, constructed four rooms on the understanding that they would be included in the map of the whole plot when the boundaries came to be fixed. It was also mentioned in that letter that a notice had been received by him from the Trust to the effect that those constructions were unauthorised and that they would be demolished on 15-2-1952. It was also mentioned in that letter that a notice had been received by him from the Trust to the effect that those constructions were unauthorised and that they would be demolished on 15-2-1952. The letter wound up with the prayer that as the demolition would be very unjust and illegal and would cause irreparable loss to the Respondent, the said constructions might be approved and sanctioned and further proceedings in respect thereof might be stayed. Thereafter the Chairman of the Trust sent a letter dated 9-2-1952 (Ex. P. 3) to the Respondent stating that the Secretary and the Assistant Engineer had gone to inspect the site on 7-2-1952 and had found the work of unauthorised constructions on he said plot going on in full swing and the Respondent was asked to stop further constructions at once on pain of rendering himself liable to legal proceedings. The Respondent obviously paid no heed to this letter because we find that on 2-4-1954 the Trust sent a notice to him through its counsel Sir S. N. Pathak to the effect that the Respondent had "without execution and completion of the lease taken possession of the plot and started making constructions over it without the permission of the Trust, "and asked him to hand over possession of the said plot to the Trust failing which a suit would be filed against him. Apparently the Respondent did not pay any heed to this notice for we find that sometime afterwards the Chairman of the Improvement Trust sanctioned the proscution of the Respondent for making the unauthorised constructions without permission, and for committing breach of bye-law No. 30 (h) (vi) page 8l of the Allahabad Municipality Part 1 rule and bey-laws corrected upto 31-5-1936 and the complaint was forwarded to the ADM Allahabad for taking cognizance u/s 191 (1) (c) of the Code of Criminal Procedure In due course the case came up for trial before Sri R. N. Lal, SDM Chail. After recording evidence and hearing arguments he dismissed the complaint on the ground that the prosecution had failed to prove that the bye-law of the Alld. Municipality on which they relied had been made applicable to the Alld. Improvement Trust by any enactment or notification. As stated above both the appeal and the connected revision are directed against this order of dismissal passed by the learned SDM. 4. Municipality on which they relied had been made applicable to the Alld. Improvement Trust by any enactment or notification. As stated above both the appeal and the connected revision are directed against this order of dismissal passed by the learned SDM. 4. The complaint which was filed against the Respondent was for making unauthorised constructions on plot No. 552, Mumfordganj, Housing Scheme without permission and against bye-law No. 30, sub head(h) (vi) page 81 of the Alld. Municipality Part 1 rule and bye-laws corrected upto 31-5-1936. Bye-law No. 30 has been framed by the Alld. Municipality under the authority conferred upon it by S. 298 (2) of the UP Municipalities Act under List 1-Head X 'A' Building, Sub-head (h) (vi). Subhead (h) (vi) authorises the Municipalities to prescribe with reference to erection...of a building the number and height of the storeys of which the building may consist; and in pursuance thereof the Alld. Municipality framed bye-law 30 laying down that: No rooms intended for or used for human habitation shall have a height of less than 10 feet from any point of the floor level except in case of houses on roads with a width of more than 30 feet where the height should be at least 14 feet. 5. The prosecution of the Respondent was sanctioned and commenced in respect of the following unauthorised constructions. 1. Construction of two rooms measuring 12'X 10'x 12'.9". 2. Two rooms 8'X12'-9" of less height. 3. One room measuring 14'-9"x6' roofing with tin shed at a height of 6'-9" u/s 185 of the UP Municipalities Act read with S. 49 of the Town Improvement Act of 1919. 6. Now under bye-law 30, the least permissible height of a room intended for human habitation has to be 10 ft. Except in the case of houses which are situate on roads with a width of more than 30 ft. Where the height has to be at least 14'. 6. Now under bye-law 30, the least permissible height of a room intended for human habitation has to be 10 ft. Except in the case of houses which are situate on roads with a width of more than 30 ft. Where the height has to be at least 14'. As the prosecution of the Respondent has also been commenced for infringment of this bye-law it has to be assumed that the constructions in question have been made on a road which has a width of more than 30 ft., for otherwise the prosecution of the Respondent could not succeed, even if the legal question of the applicability of the bye-laws to areas situate within Municipal limits and covered by improvement schemes under the UP Town Improvement Act was held in favour of the Appellant. Besides Learned Counsel for the Respondent has not made any grievance on this point before us. Indeed he and the Learned Counsel for the Appellant were agreed that the order in question will fall or stand according as to whether the said bye-law applies or not to an area within the municipal limits of Allahabad in respect of which an Improvement Scheme is in force. As no other point was pressed before us we shall straightaway proceed to the examination of the merits of the rival contentions on this point and in order to appreciate the said contentions a reference to S. 49 of the UP Town Improvement Act is absolutely necessary. The material portion of that section runs as follows: 49. Powers under the Municipalities Act vested in the Trust. The material portion of that section runs as follows: 49. Powers under the Municipalities Act vested in the Trust. (1) The provisions of S. 178, to 186, 189 to 194, 203 to 216, 218 to 224, 236, 256, 257, 261, 265, 266, 267 (except in respect of cleansing and disinfecting) 268 to 270 and 278 of the Municipalities Act shall, so far as may be consistent with the tenor of this Act, apply to all areas in respect of which an improvement Scheme is in force; and for the period during which such scheme remains in force all references in the said sections to the Board or to the Chairman, or to any officer of the Board, shall be construed as referring to the Trust which in respect of any such areas may alone exercise and perform all or any of the powers and functions which under any of the said sections might have been exercised and performed by the Board or by the Chairman or by an officer of the Board; Provided that the Trust may delegate to the Chairman or to any officer of the Trust all or any of the powers conferred by this section. (2) The Trust may make bye-laws for any area comprised in an improvement scheme" which is outside the limits of the municipality. (a) generally for carrying out the purpose of this Act, and (b) in particular and without prejudice to the generality of the aforesaid powers the Trust may make bye-laws regarding any of the matters referred to in Section 298 of the Municipalities Act. 7. S. 49 (1) of the UP Town Improvement Act, interalia, makes the provisions of Ss. 178 to 18b of the UP Mnnicipalities Act applicable to an area in respect of which an improvement scheme is in force and which falls within the territorial limits of a municipality. Section 49 (2) provides for an area in respect of which an improvement scheme is in force but which lies outside the limits of a municipality. It has been admitted before us that the Mumfordganj Housing Scheme is such an improvement scheme and further that that scheme is in respect of an area which fails within the limits of the Alld. Municipality. It has been admitted before us that the Mumfordganj Housing Scheme is such an improvement scheme and further that that scheme is in respect of an area which fails within the limits of the Alld. Municipality. It follows therefore that S. 178 to 186 along with a number of other sections of the UP Municipalities Act, with which we are not concerned here, have been made applicable to the area which is covered by the Mumfordganj Housing Scheme. The question which next arises is whether S. 49 (1) of the UP Town Improvement Act has also made the bye-laws which have been framed by the Alld. Municipality u/s 298 of the UP Municipalities Act as sort of addenda to some of those sections of the Municipalities Act which are mentioned in S. 49 (1) of the UP Town Improvement Act, applicable to area which lies within the limits of a Municipality and which is covered by an Improvement Scheme. As stated above it is only if those bye-laws are applicable to such an area that the prosecution of the Respondent for infringment thereof can be allowed to proceed and not otherwise. It is to be noted that S. 298 of the UP Municipalities Act which authorises a Municipal Board to frame bye-laws is not mentioned in S. 49 (l) of the UP Town Improvement Act. That Section, however, runs as follows: 298. Power of board to make bye-laws. (1) A board by special resolution may, and where required by the State Government shall, make bye-laws applicable to the whole or any part of the Municipality, consistent with this Act and with any rule, for the purpose of promoting or maintaining the health, safety, and convenience of the inhabitants of the municipality and for the furtherance of municipal administration under this Act. (2) In particular, and without prejudice to the generality of the power conferred by Sub-section (1), the board of a municipality, wherever situated, may, in the exercise of the said power, make any bye-law, described in list I below and the board of a municipality, wholly or in part situated in a hilly tract may further make, in the exercise of the said power, any bye-law described in list II below. 8. S. 185 of the UP Municipalities Act under which the Respondent's prosecution has been sanctioned runs as follows; Illegal erection or alteration of a building. 8. S. 185 of the UP Municipalities Act under which the Respondent's prosecution has been sanctioned runs as follows; Illegal erection or alteration of a building. "whoever begins, continues or completes the erection or re-erection of, or any material alteration in, a building or part of a building or the construction or enlargement of a wall, without giving the notice required by S. 178, or in contravention of the provisions of S. 180 Sub-section (5), or of an order of the board refusing sanction or any written directions made by the board u/s 180 or any bye-laws, shall be liable upon conviction to a fine which may extend to five hundred rupees. 9. This section as its language shows, is only a penalising section and lays down the maximum penalty which a person is liable to incur on conviction for infringement of any of the provisions of Sections 178 and 180 of the UP Municipalities Act or of any bye-laws made thereunder. The effect, to my mind, of S. 49 (1) of the UP Town Improvement Act is to incorporate therein all the sections of the UP Municipalities Act which are mentioned in that section, including S. 185, in their entirety, with only one difference viz. that the words 'Board', 'Chairman', 'or any other officer of the board', wherein occurring in those sections of the Municipalities Act shall be construed as referring to the 'Trust' or its delegates as specified in the first proviso to S. 49 (1) of the UP Town Improvement Act. And since S. 185 of the UP Municipalities Act also refers to "any bye-laws" it follows that all the appropriate bye-laws have also to be regarded as parts of the sections (i.e. Sections 178 and 180) referred to therein. Those bye-laws would, therefore, be treated as part and parcel of the sections to which they relate, and would be deemed to be incorporated in the UP Town Improvement Act not as bye-laws but as part of the main sections themselves. It is true that the Municipal bye-laws are framed u/s 29a of that Act, and not under the different sections thereof, but that, to my mind, is purely a matter of draftsmanship, intended to avoid repetition, which would otherwise have been inevitable. It is true that the Municipal bye-laws are framed u/s 29a of that Act, and not under the different sections thereof, but that, to my mind, is purely a matter of draftsmanship, intended to avoid repetition, which would otherwise have been inevitable. On this view of the matter once a bye-law has been framed it must be regarded as part and parcel of the parent section for the better and effective working of which it has been framed. In the present case, however, it is not necessary to go to that length because both Sections 178 and 180 mentioned in S. 185 of the UP Municipalities Act themselves state that the provisions contained therein are subject to 'any bye-law' which may be made by the Municipal Board. The expression "unless by a bye-law" used in those sections can only mean that the 'bye-laws' dealing with the matters covered by those sections have to be read along with those sections and not as something separate therefrom besides the Interpretation which I have attempted to place on S. 49 (1) of the UP Town Improvement Act is in consonance with the well known principle governing the interpretation of statutes, viz. that as far as possible the Courts should prefer that construction which furthers the avowed object of the statute rather than that which retards or impedes it, unless the language of the statute clearly excludes that interpretation. The UP Town Improvement Act was enacted as its preamble shows "for the Improvement and expansion of towns in the United Provinces." The bye-laws which have been framed by the Alld. Municipality including the bye-law, with which we are concerned in the present case, have been made as S. 298 (1) of the UP Municipalities Act states "for the purpose of promoting and maintaining the health, safety and convenience of the inhabitants of the Municipality....." 10. It is obvious that any scheme which pretends to be for the 'Improvement' of a town cannot be anything but illusory if it fails to take into account bye-laws framed for the purposes of promoting the health, safety and convenience of the inhabitants thereof. It is obvious that any scheme which pretends to be for the 'Improvement' of a town cannot be anything but illusory if it fails to take into account bye-laws framed for the purposes of promoting the health, safety and convenience of the inhabitants thereof. Any other interpretation of S. 49 (I) of the UP Town Improvement Act would lead to the anomalous result that an area within municipal limits, which was subject to certain bye-laws designed to promote the health, safety and convenience of the inhabitants thereof, would be deprived of the benefits of those salutary rules as soon as an improvement scheme was initiated in respect thereto. A construction which would lead to such a manifest and gross absurdity must be avoided, unless the language of the section is so clear as to leave no option in the matter. It is also to be noted that by adding Sub-section (2) to S. 49 of the UP Town Improvement Act the Legislature made it clear that it was aware that in working an improvement scheme in an area outside the municipal limits where naturally there would be no appropriate bye-laws in existence, it would be necessary to frame the same and it therefore gave the trust necessary powers to make them. Could it be imagined that a legislature which was careful enough to invest the Trust with powers to make rules and bye-laws for areas situate outside municipal limits would intend the existing rules and bye-laws in respect of areas within municipal limits to come to an end? In my opinion the answer must unhesitatingly be given in the negative. 11. In this view of the matter the learned SDM was clearly in error in dismissing the complaint on the ground that the prosecution had failed to prove that the bye-law framed by the Alld. Municipality, with which we are concerned in the present case, was not applicable to the Mumfordganj Housing Scheme. 12. There is however yet another reason why the order passed by the learned SDM cannot be sustained. The complaint against the Respondent embraced two charges; one for making contructions without permission, and the other for infringing bye-law No. 30, made by the Alld. Municipality u/s ub-head (h) (vi) of S. 298 of the UP Municipalities Act. 12. There is however yet another reason why the order passed by the learned SDM cannot be sustained. The complaint against the Respondent embraced two charges; one for making contructions without permission, and the other for infringing bye-law No. 30, made by the Alld. Municipality u/s ub-head (h) (vi) of S. 298 of the UP Municipalities Act. The first charge clearly related to Sections 178 and 180 (5) of the Municipalities Act read with S. 49 (l)of the UP Town Improvement Act. There is no dispute that S. 178 of the UP Municipalities Act has been incorporated in the UP Town Improvement Act by virtue of S. 49 (1) thereof. The relevant portion of S. 178 of the UP Municipalities Act runs as follows: 178. (1) Before beginning, within the limits of the municipality- (a) to erect a new building or new part of a building, or (b) to re-erect or make a material alteration in a building, or (c) to make or enlarge a wall, a person shall give notice of his intention to the Board. (2) The notice referred to in sub S. (1) as required in the case of a building shall only be necessary where the building abuts on, or is adjacent to, a public street or place, property vested in Government or in the board, unless, by a bye law applicable to the area in which the building is situated, the necessity of giving notice is extended to all buildings. (3) ........................................ 13. After making the necessary adaptations authorised by S. 49(1) of the UP Town Improvement Act this section for purposes of the latter Act would read as follows: Before beginning, within the limits of the Municipality - (a) to erect a new building or new part of a building, or (b) to re-erect or make a material alteration in a building, or (c) to make or enlarge a wall, a person shall give notice of his intention to the Trust (2) The notice referred to in sub S. (1) as required in the case of a building shall only be necessary where the building abuts on, or is adjacent to, a public street or place, or property vested in Government or in the Trust, unless, by a bye-law applicable to the area in which the building is situated, the necessity of giving notice is extended to all buildings. 13) ......................................... 14. 13) ......................................... 14. The language of the section is clear and unequivocal. It states that a person who intends to erect a new building as in this case, shall before beginning the said erection give a notice of his intention to do so to the Trust, but that such a notice shall only be necessary where the building abuts on or is to a public street or place or property vested in (Government) or in the Trust, unless, by a bye-law applicable to the area in which the building is situated, the necessity of giving notice is extended to all buildings. S. 180 of the UP Municipalities Aet, which is also one or the sections mentioned in S. 49 (1) of the UP Town Improvement Act, after making the necessary adaptations authorised by the latter section, would read as follows: Subject to the provisions of any bye-law, the Trust may either refuse to sanction any work of which notice has been given u/s 178 or may sanction it absolutely or subiect to..............." (and here follow a number of conditions with which we are not concerned in the present case) 15. See S. (5) of S. 180 is as follows: No person shall commence any work of which notice has been given u/s 178 until sanction has been given or deemed to have been given under this section 16. Any breach of S. 1.78 and 180 (5) of the Municipalities Act is made punishable u/s 185 which also is one of the sections incorporated in the UP Town Improvement Act. A close analysis of the aforesaid sections of the UP Municipalities Act which have been incorporated in the UP Town Improvement Act, makes it clear that apart from any bye-law which might have been made by the Municipality concerned u/s ub S. (2) of S. 178 requiring the giving of notice in every case of the nature referred to in sub S. (1) thereof, the section itself requires the giving of a notice if the proposed building is likely to abut on or be adjacent to a public street or place or property vested in Government or in the Trust. And if the proposed building is likely to be hit by sub S. (2) of S. 178 of the UP Municipalities Act read with S. 49 of the Town Improvement Act, no work can be commenced in respect of it u/s 180 (5) until sanction has been given or deemed to have been given by the Trust. The SDM could not, therefore, dismiss the complaint without first recording a finding that it was not necessary for the Respondent to give a notice to the Trust, as the conditions laid down in sub S. (2) of S. 178 of the UP Municipalities Act read with S. 49 (1) of the UP Town Improvement Act did not obtain the present case. 17. For the reasons stated above, I am of the opinion, that this appeal and the connected revision must be allowed, the order of the court below set aside and the case sent back for retrial in the light of the observations made above. James, J. 18. I have read the carefully prepared judgment of my brother Takru and agree with his conclusion that the appropriate bye-laws of the Allahabad Municipality do apply to the area coveted by the Mumfordganj Housing Scheme. The same conclusion may be arrived at by another line of reasoning. The bye-laws of Municipality are without doubt valid ones. The are in question lies within the limits of the Municipality, but since S. 49 of the Town Improvement Act debats the Trust from framing bye-laws for that area, that area must continue to be governed by the bye-laws of the Municipality. A person who contravenes any of those bye-laws becomes liable under the law. But how are the bye-laws to be enforced? The answer is supplied by the wording of S. 49 whereby the powers of the Board stand transferred to the Trust. It follows that the Trust was within its rights prosecuting the Respondent for a breach of the bye-laws framed by the Municipality. BY THE COURT For the reasons given in the above judgments the appeal and the connected Revision are hereby allowed and the order of acquittal passed by the sub divisional Magistrate set aside. The case is sent back to the Magistrate concerned for retrial in the light of the observations made in the judgment of Takru, J.