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1935 (3) TMI 23

..... Zla-ul-Hasan, J. 1. An important question of law has been raised in this appeal, namely, whether a criminal Court can, in a prosecution under S. 307, Municipalities Act, for failure to obey a notice issued by & Municipal Board under S. 186, Municipalities Act, go into the question of the illegality, validity and reasonableness of the notice On this point there appears to be some conflict of judicial opinion. On the one hand we are referred by the learned Government Advocate to the cases of Mannu v. Emperor AIR 1920 All 236=58 IC 153=42 All 294=21 Cr L J 729; Har Prasad v. Emperor AIR 1932 All 673=138 IC 839=1932 Cr C 825=33 Cr L J 692; Municipal Board v. Jawala Prasad AIR 1935 Oudh 197=154 IC 45=1935 Cr C 286=11 O W N 1622 and Mahadeo Prasad v. Jamita Khatun AIR 1930 Oudh 204=123 IC 55=7 O W N 396. 2. A contrary view is expressed in the cases of: Yasuf Husain v. Emperor AIR 1932 Oudh 306=1932 Cr C 846=140 IC 185=33 Cr L J 933 and Ram Charan v. Improvement Trust, Lucknow 1925 Oudh 546=85 IC 243=26 Cr L J 499. We therefore refer the above question to a Full Bench for decision under S. 14 (1); Oudh Courts Act. Opinion King, C.J. 3. The question of law which has been referred to th .....

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..... per, became final under S. 321, Municipalities Act, and that it was not open to the Magistrate to go behind that order and re-open the question of the legality or propriety of the notice and come to a finding which was in substance a reversal of the District Magistrate's appellate order. 7. It appears to me that this contention is correct. Under S. 186 the Board is competent to issue a written notice to the owner of any land directing him to demolish a building upon the land in any case where the Board considers that the erection of the building is an offence under S. 115. It must be noted that it is for the Board to decide whether the erection of the building is an offence under S. 185. The Board may be right or wrong in its decision, but if it considers that the erection of the building amounts to an offence under S. 185, then it is competent to issue a I notice under S. 186. In the present case therefore it appear* to me that the Board was clearly acting within the; scope of its authority in issuing the notice because it clearly considered the erection of the building to be an offence under S. 185. 8. The accused when served with the notice availed himself of the remedy prov .....

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..... e learned Judge observed that the criminal Courts should not refuse to enforce the provisions of the statute according to their plain meaning merely on the ground that there seemed reason for suspecting that the Municipal Board was using its powers under the statute in an oppressive manner and not in accordance with the spirit of S. 298 of the Act. The view taken in this case certainly supports the contention of the appellant. The case of Mahadeo Prasad Bakkal v. Jamila Khatun AIR 1930 Oudh 204=123 IC 55=7 O W N 396 has also been cited but it is readily distinguishable and throws no light upon the correct decision of the question The fore us. 10. The case for liar Prasad v. Emperor AIR 1932 All 673=138 IC 839=1932 Cr C 825=33 Cr L J 692, is clearly in favour of the appellant. In that case the accused was prosecuted under S. 307, for failure to comply with two notices issued by the Municipal Board under Ss. 186 and 211 ordering him to remove a certain construction which was encroaching upon a public drain. It was proved that the notices had been served and bad not been obeyed. The accused maintained that he bad not made any encroachment on the public drain and therefore the Municipa .....

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..... ice was such a notice as the Board was empowered to give under S. 186, and it is not argued that the notice was void ab initio, or a nullity, owing to lack of inherent jurisdiction or for any other reason. The Municipalities Act itself contemplates the possibility of an illegal "order or direction made by a Board under the powers conferred upon it by S. 186" (and by the other sections mentioned in S. 318) S. 319 provides that if the officer hearing the appeal under S. 318entertains reasonable doubt as to the legality of the notice or order he may refer the point for the decision of the High Court. This shows that it is possible for an order made by a Board under S. 186 to be an illegal order. The legality of such a notice or order is therefore a question which the District Magistrate has exclusive jurisdiction to determine, either on his own responsibility or in conformity with the decision of the High Court. If he upholds the legality and propriety of the notice, I think his decision is final and the question cannot be re-opened and tried again by the Magistrate who tries the case under S. 307. 12. The question of law has however been framed in such general terms that it .....

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..... sider whether the accused had failed to comply with a notice. properly issued to him. When he speaks of a notice being properly issued, he probably means a notice which is both in form and in substance a notice which could be issued by the Board and which has in fact been issued by authority of the Board within the scope of its jurisdiction. The respondent has referred to the case of Kashmiri Lal v. Emperor AIR 1921 All 267=63 IC 410=43 All 644=22 Cr L J 650. In that case a notice had been issued by the Board under S. 267 (1) (b) requiring the owner of premises to construct a cesspool. He was prosecuted under S. 307 for failing to comply with the notice. It was held that the order could not be questioned on the merits in the Magistrate's Court provided that the order was made within the jurisdiction of the Board. In other words, the view was that S. 321 prohibits the Magistrate from questioning the reasonableness or practicability of the order but not its legality. I agree to this extent that it is open to the Magistrate (if the point has not been concluded by the District Magistrate's appellate order) to consider whether the order is a complete nullity, as I have explained .....

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..... think that the accused was guilty of a technical offence in disobeying a notice illegally issued under S. 186 I think that even in that case it must be held that the notice in question was a notice issued by the Board under S. 186. The notice was not a mere nullity. The Board had jurisdiction to issue the notice but they, exercised their jurisdiction illegally or wrongfully. In such a case I think that the Criminal Court was precluded by S. 321 from questioning the legality of the notice for the purpose of finding the accused guilty or not guilty. The point could no doubt be taken into consideration for the purpose of passing sentence and a nominal fine could be imposed for a technical offence. 16. The learned Judge observed that the notice under S. 186 could not be held to have been given under the provisions of Act, because the construction did not amount to an offence under S. 185, and therefore the Board could not have considered in good faith that the construction did amount to an offence under S. 185. It will be observed that the learned Judge seems to hold that the Board is required to consider "in good faith" that the construction constituted an offence under S. .....

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..... this to mean that even the District Magistrate himself could not decide questions relating to taxation except by way of appeal, i.e., he could not do so in the course of trying a criminal case. 20. The respondent goes to the length of arguing that the word 'authority' in S. 321 does not include a criminal Court, although it may include a civil Court. It to me seems impossible to hold that the word 'authority' is not wide enough to cover criminal Courts as well as civil Courts. It is perhaps worth noting that the marginal note of S. 164, the language of which is similar to S. 321, is bar to jurisdiction of civil and criminal Courts in matters of taxation. It is not always clear whether marginal notes can be referred to in case of the obscurity of any expression in the text of the statute. The answer depends upon whether the notes can be regarded as inserted by, or under the authority of the legislature. In the Full Bench case of Ram Saran Das v. Bhagwani Prasad AIR 1929 All 53=113 IC 442=51 All 411 (S B), it was held that marginal notes to sections of an Act can be referred to for the purpose of interpretation if they can be regarded as inserted by, or under the aut .....

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..... arties, by an authority having* exclusive jurisdiction to decide it. The appeal under S. 318 was decided between Mumtaz Husain and the Board. The prosecution is in form between the King Emperor and Mumtaz Husain, but in substance it is between the Board and Mumtaz Husain. The Board is the complainant and the Court cannot take cognizance of the offence except on the complaint of the Board. The police are in no way concerned and the Crown is not directly interested. So the effect of S. 321 seems to be merely to apply the rule of res judicata which broadly speaking, prohibits the re-opening of a question finally decided between the parties by a Court of competent jurisdiction. 21. In the case before us it is clear that if the trying Magistrate goes behind the District Magistrate's appellate order and decides the legality and validity of the notice upon the merits, the appellate order is not "final" and the accused will be allowed to have an indirect appeal against it. In fact the trying Magistrate has in effect reversed the appellate order which is declared by statute to be "final." This procedure seems to be in direct conflict with the statute. The question wh .....

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..... a Municipal Board under S. 186 can. be questioned only by means of an appeal to the District Magistrate. S. 186 empowers the Board to stop erection, re-erection or alteration of any building, and to direct the alteration or demolition thereof. The policy underlying the whole enactment seems to be to give wide and extensive powers to the Boards in Municipal matters and to restrict toe litigation in respect of them. It is frequently necessary to restrict the rights and liberties of individuals for the larger good of society. This legislature could well presume that the actions of Municipal Board constituted of a majority of the elected representatives of the public will, as a rule, be based on considerations of public interest and will not be unreasonable or capricious. If therefore in a matter like that provided in S. 186 which is essentially a civic matter, the right of the citizen to question the orders of the Board is restricted to an appeal to the District Magistrate, I can see nothing unreasonable in such a provision. 24. The second clause of S. 321 provides that the order of the appellate authority confirming, setting aside or modifying any such order or direction shall be. fi .....

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..... Criminal Courts, which would be constrained to convict persons of an offence, although they know that they are not guilty, but would also go against the very basic principle of criminal justice, namely, that an accused person is of right entitled to defend himself in a trial. Out of the cases cited by the learned Government Advocate, only three need be considered, namely. Municipal Board, Bahraich v. Jwala Prasad AIR 1935 Oudh 197=154 IC 45=1935 Cr C 286=11 O W N 1622, Mannu v. Emperor AIR 1920 All 236=58 IC 153=42 All 294=21 Cr L J 729 and Har Prasad v. Emperor AIR 1932 All 673=138 IC 839=1932 Cr C 825=33 Cr L J 692. The first of these is a single Judge case but in this case also the learned Judge held that the only matter the Magistrate has to consider is whether the accused has failed to comply with a notice properly issued to him. This clearly shows that the Magistrate has to judge of the propriety of the notice issued by the Municipal Board. The second was a case in which a person had been convicted for storing firewood on a piece of land without obtaining a license for the purpose from the Municipal Board as required by the bye laws framed by the Municipality under S. 298, Mu .....

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..... given the right to challenge the validity of a notice issued by a Municipal Board, this elementary right was taken away from him in 1916 when education had appreciably advanced in the country and when the rights of the subject had begun to be recognized more and more. No doubt S. 321, Municipalities Act, lays down that: No order or direction referred to in S. 818 shall be questioned in any other manner or by any other authority than is provided therein and further that the order of the appellate authority confirming, setting aside or modifying any such order or direction shall be final; but I cannot bring myself to believe that by enacting this section the Legislature meant to take away the elementary right of a citizen to defend himself in a criminal trial. It appears to me that by the word "authority" they intended to mean an authority that might be appealed to or moved against an order or direction made by a Municipal Board by the person against whom the order or direction has been made under any of the sections referred to in S. 318 and did not intend thereby to deprive a citizen of his right to defend himself if prosecuted in a criminal Court by the Board, though to .....

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..... to include a criminal Court on the ground that a criminal Court itself was an authority referred to in the Act but that this reasoning could not be applied to S. 321 in which the words are "authority other than that mentioned in S. 318" which does not mention a criminal Court. This was however one of the reasons and not the sole reason of His Lordship's decision. Another and a stronger reason is contained in the following words: Section 164 would more appropriately apply to cases where the goods are detained by the Municipal authorities or where octroi duty has been paid which the importer thinks is in excess of what he was bound to pay. On such matters the order of the appellate authority is final and the importer has no right to claim a refund in any civil or criminal Court. and the learned Judge goes on to say: But we are unable to hold that on that account a criminal Court is compelled to convict an accused even though satisfied that the goods on which he has not paid, octroi were not liable to the payment of octroi. 31. As regards the cases of Ram Dayal v. Emperor (sic) 33 All 147=8 IC 569=11 Cr L J 681 and Emperor v. Piare Lal AIR 1914 All 41=23 IC 745=15 Cr L .....

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..... a notice has been given under the provisions of this Act." It is thus clear that to interpret S. 321 of the Act in the manner contended for by the learned Government Advocate will not only be against the very elementary principles of the administration of criminal justice but would also be against the provisions of S. 307 of the Act itself. I would therefore answer the question in the affirmative. King, C.J. and Zia-ul-Hasan, J. 33. The majority of the Judges constituting the Full Bench have decided that when the District Magistrate has made an appellate order under S. 318, upholding the legality or the validity of the notice issued by the Board under S. 186, the criminal Court which tries a case under S. 307, for failure, to comply with the notice, cannot go into the question of the legality, validity or reasonableness of the notice. In the present case therefore the trying Magistrate was precluded from finding that the notice was illegal or invalid. The accused admittedly failed to comply with the notice and was therefore guilty of an offence under S. 307. We therefore allow the appeal, set aside the Magistrate's order of acquittal dated 17th October 1933, and convict t .....

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