Improvement Trust of Varanasi v. M. A. Nomani — 1959 DIGILAW 261 (ALL)

JUDGMENT V.G. Oak, J. - These two connected appeals by Varanasi Improvement Trust are directed against two orders of acquittal. The principal question involved in these appeals is whether a boundary wall falls within the definition of the term 'building' under the U.P. Municipalities Act. 2. In case No. 18/1591 of 1958 M.A. Nomani was the accused. He was prosecuted on the following allegations. On 4-7-1957 a Building Inspector gave a report that, the accused was constructing a boundary-wall on his land at Sarnath without any permission from the Varanasi Improvement Trust. A notice was issued to the accused to stop further construction. Upon a second inspection it was found that, the boundary-wall had been completed. The accused was prosecuted for having started and completed the construction of the boundary-wall without sanction from the Improvement Trust, Varanasi and in spite of the notice to the contrary. The accused admitted having constructed the boundary-wall in question. The defence was that the wall had been constructed in village Baraipur and not at Sarnath. 3. In Criminal Case No. 16/1518 of 1957 Sdhan Lal Agarwal was the accused. He was prosecuted on the allegation that, he had constructed the boundary-wall in his grove situated on Sarnath-Pisanhariya Road. The Improvement Trust served notice on the accused on 17-4-1957 for stopping the construction. Subsequently, it was found that the boundary-wall had been completed. This accused also was prosecuted for having made the boundary-wall without sanction. The plea of the accused was that, the construction had been completed before the area was brought under the Improvement Scheme. 4. In each case the accused was acquitted. Varanasi Improvement Trust has therefore filed the two criminal appeals against the two orders of acquittal. 5. Criminal Appeal No. 933 of 1958 has arisen out of Original Case No. 18/1591 of 1959. Criminal Appeal No. 934 of 1958 has arisen out of Original Case No. 16/1518 of 1957. 6. Firstly, I shall take up the case against M.A. Nomani accused. In this case the main ground; for the Respondent's acquittal is that, the boundary-wall in question does not amount to a 'building' for purpose of the U.P. Town Improvement Act and U.P. Municipalities Act. 7. Certain terms have been defined in Section 2 of the U.P. Town Improvement Act. Firstly, I shall take up the case against M.A. Nomani accused. In this case the main ground; for the Respondent's acquittal is that, the boundary-wall in question does not amount to a 'building' for purpose of the U.P. Town Improvement Act and U.P. Municipalities Act. 7. Certain terms have been defined in Section 2 of the U.P. Town Improvement Act. But the term 'building' has not been defined in Section 2 of this Act Clause (1) of Section 2 of this Act runs thus: Words and expressions not defined in this Act have the same meaning as in the United Provinces Municipalities Act, 1916, as from time to time amended.... 8. We have, therefore, to look to the U.P. Municipalities Act, 1916 for the necessary definition. 9. The term 'building' has been defined in Clause (2) of Section 2 of the U.P. Municipalities Act. "Building" means a house, hut, shed or other roofed structure, for whatsoever purpose and of whatsoever material constructed and every part thereof, but shall not include a tent or other such portable temporary shelter. 10. It will be seen that the definition of the 'building' consists of two parts. According to the first part of the definition, building ought to have a roofed structure. But the second part of the definition indicates that, a 'building' includes a part of building. Having defined the term 'building', here should ordinarily have been no necessity to define a part of a building. But the legislature chose to assign a special meaning to the expression "part of a building". So the expression "part of a building" has been separately defined. 11. The expression "part of a building" has been defined in Clause (14) of Section 2 of the U.P. Municipalities Act. "Part of a building includes any wall, underground room or passage, verandah, fixed platform, plinth, staircase or door-step attached to, or within the compound of an existing building or constructed on ground which is to be the site or compound of a projected building." 12. The learned Magistrate relied upon Lalit Narain Dubey v. The State 1957 AWR 688 (1). In that case it was held by Asthana, J. that: A compound wall which is entirely detached from the house does not fall within the definition of 'building' in Section 2 of the U.P. Municipalities Act, 1916 and as such Section 184 of the Act is not applicable. In that case it was held by Asthana, J. that: A compound wall which is entirely detached from the house does not fall within the definition of 'building' in Section 2 of the U.P. Municipalities Act, 1916 and as such Section 184 of the Act is not applicable. On a perusal of the judgment in Lalit Narain Dubey's case 1957 AWR 688 (1) we find that the definition of the term 'building' contained in Clause (2) of Section 2 of the Act was considered. But the learned Judge did not discuss the definition of "part of a building" contained in Clause (14) of Section 2 of the Act. The definition of "part of building" was considered by Mukerji, J. in Malhoo Mian Abdul Ghani v. The State 1953 AWR 308 . It was held in that case that a chabutara which was a separate entity cannot be considered as a building or part of a building. In that case it was pointed out that, the construction in question was not inside the compound of an existing building nor on ground which was to be the site or compound of a projected building. That case does not lay down the broad proposition that, a boundary-wall can under no circumstances be a 'part of a building'. 13. The definition of "part of a building" contained in Clause (14) of Section 2 of the U.P. Municipalities Act shows that, a (sic) constructed on a ground which is to be the compound of a projected building amounts to a 'part of building'. It has been contended by Jagdish Swarup appearing for the Appellant that, in the present case the wall in question was constructed on ground which was compound of a projected building. This position has been challenged by Mr. Sadiq Ali appearing for the Respondent. 14. The improvement Trust issued a notice to the accused on 4-7-1957 objecting to the construction of the boundary-wall. To this notice the accused gave a reply (Ext. Ka-3) on 7-7-1957. In this reply (Ext. Ka-3) the accused said that, he had purchased the land for garden house. The accused filed a written statement in court. 14. The improvement Trust issued a notice to the accused on 4-7-1957 objecting to the construction of the boundary-wall. To this notice the accused gave a reply (Ext. Ka-3) on 7-7-1957. In this reply (Ext. Ka-3) the accused said that, he had purchased the land for garden house. The accused filed a written statement in court. In para 2 of the written statement the accused stated: "This opposite party had filed an application for permission to build a garden house and a plan was submitted along with it about the middle of June 1957." These two documents indicate that, the accused planned to build a house on the spot, where the boundary-wall was constructed. The boundary-wall in question was, therefore, a wall J constructed on ground which was a compound of a projected building. So the boundary-wall amounted to 'part of building' as defined in Clause (14) of Section 2 of the Act. 15. The second ground for acquittal of the accused was, that the accused was protected u/s 180(3) of the U.P. Municipalities Act. Sub-section (3) of Section 180 of the U.P. Municipalities Act runs thus: Should the board neglect or omit for one month after the receipt of a valid notice u/s 178 to make and deliver to the person who has given such notice an order of the nature specified in Sub-section (1) in respect thereof, such person may by a written communication call the attention of the board to the omission or neglect and if such omission or neglect continues for a further period of fifteen days, the board shall be deemed to have sanctioned the proposed work absolutely. 16. In order to get the benefit of Sub-section (3) of Section 180 of the Act, the accused has to satisfy three conditions; (1) issue of a notice u/s 178(2) a written communication calling attention of the Board to the omission to give sanction; and (3) omission of the Board to pass orders for a further period of fifteen days from the date of the written communication. In the present case it appears that, the accused applied to the Improvement Trust for sanction of the construction and no reply was received within a month from the application. But the accused has not shown that a written communication calling the attention of the Board to such omission was issued by the accused to the Board. In the present case it appears that, the accused applied to the Improvement Trust for sanction of the construction and no reply was received within a month from the application. But the accused has not shown that a written communication calling the attention of the Board to such omission was issued by the accused to the Board. Since the accused did not fulfill all the conditions laid down in Sub-section (2), he was not entitled to the benefit of Section 180(3) of the U.P. Municipalities Act. 17. Thus both the grounds given by the learned Magistrate for the Respondent's acquittal fail. Mr. Sadiq Ali however urged another point before me. He urged that the construction in question was not within the area covered by the Improvement Scheme. 18. According to the prosecution, the construction lies in village Sarnath. According to the defence the construction lies in village Baraipur. PW1 stated in cross-examination that, he is not sure whether the land in dispute lies in village Baraipur or not. In the plan submitted by the accused it was noted that, the land lies in village Baraipur. We may therefore assume that the land lies in village Baraipur and not in village Sarnath. It does not however follow that, the land was beyond the area of the Improvement Scheme. Both the parties relied upon a Government notification published in the gazette dated 6-10-1956. On reading the Government notification it is not possible to say whether village Baraipur lies within the area or not. 19. In his reply (Ex. Ka-3) dated 7-7-1957 the accused wrote to the Improvement Trust as follows: As the land is outside the Municipal limits no sanction u/s 180 of the Municipal Act is required. Further constructions are stopped. The notification referred to in the notice was not known to me, prior to the date of application for permission was filed. I hope you will grant me permission as early as possible. No building will be constructed till permission u/s 34A of the Municipalities Act is received. 20. This letter (Ex. Ka-3) no doubt raised the question that the land was beyond the Municipal limits. But the material point was whether the land was within or outside the area covered by the Improvement Scheme. The accused himself applied for sanction. In his letter (Ex. Ka-3) the accused conceded the position that sanction was necessary. 21. 20. This letter (Ex. Ka-3) no doubt raised the question that the land was beyond the Municipal limits. But the material point was whether the land was within or outside the area covered by the Improvement Scheme. The accused himself applied for sanction. In his letter (Ex. Ka-3) the accused conceded the position that sanction was necessary. 21. Before the trial court a statement was made on behalf of the accused by his lawyer. Subsequently, the accused was examined personally. It was no doubt stated there that, the land lies in village Sarnath. But there was no plea that, the land lies beyond the area covered by the Improvement Scheme. P.W. stated that the land in dispute lies within his circle, thereby suggesting that the land lies within the area of the Improvement Scheme. The accused no-where stated that, the land lies beyond the area of the Improvement Scheme. Whether the land in dispute lies within or beyond the area of the Improvement Scheme is essentially a question of fact. This point does not appear to have been argued before the learned Magistrate. The Respondent cannot be permitted to raise this question of fact for the first time in appeal. I shall assume that the land in dispute lies within the area covered by the Improvement Scheme. 22. The accused constructed a boundary-wall, which amounts to a part of a building as defined by the U.P. Municipalities Act. Such construction could not be made without sanction. By making the said construction without sanction, the accused contravened Section 185 of the U.P. Municipalities Act. The accused is liable to punishment u/s 185 of the U.P. Municipalities Act read with Section 49 of the U.P. Town Improvement Act. 23. Next I have to consider the case against Sohan Lal Agarwal. In this case also the learned Magistrate observed that a boundary-wall can never amount to a building. As explained during the discussion of the case of M.A. Nomani, under certain circumstances a boundary-wall may amount to a part of a building. 24. The defence of the accused was that, the construction was completed before the relevant Government notification was issued. Two witnesses were examined for the prosecution. Prem Narain PW 1 admitted that no construction was made in his presence. One witness was examined in defence. Baldeo Das DW 1 is a son of Sohan Lal accused. 24. The defence of the accused was that, the construction was completed before the relevant Government notification was issued. Two witnesses were examined for the prosecution. Prem Narain PW 1 admitted that no construction was made in his presence. One witness was examined in defence. Baldeo Das DW 1 is a son of Sohan Lal accused. The witness stated that the land was purchased on 1-9-1956. Construction of the boundary-wall was completed in 15 or 16 days. It means that the construction was completed by the 29-9-1956. The relevant notification was published in the up Gazette dated 6-10-1956. It therefore appears that the construction was completed some time before the issue of the Government notification. So the construction is not hit by the Improvement Scheme. No offence was committed by the accused in making the construction in question. 25. In the result, Cr. A. No. 933 of 1958 is allowed. The Respondent's acquittal is set aside. I convict M.A. Nomani u/s 195 of the U.P. Municipalities Act read with Section 49 of the U.P. Town Improvement Act. He is sentenced to a fine of Rs. 25 or simple imprisonment for one week in default of fine. The fine should be deposited with the trial court within one month from to day. Cr. A. No. 934 of 1958 is dismissed.