KAMTA NATH V. THE MUNICIPAL BOARD OF ALLAHABAD.

is no legal bar. The power under section 439 ought, no doubt, to be exercised by this Court with great care, and certainly with regard to pending trials it is only in most exceptional cases that the power should be exercised. However, in the present case, if we are to exercise our powers at all we should do so at once, and we accordingly think that under all the circumstances of this case we should now order that no further proceedings shall be taken. We accordingly set aside the order of the Joint Magistrate and the Sessions Judge of which the applicant complains, quash the prosecution now pending against the applicant, and direct that it shall be discontinued. If the applicant is on bail, his bail shall be discharged.

(2 All. L. J., 676; 25 All. W. N., 252.)

IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD. Aug. 17 [CRIMINAL REVISION No. 183 of 1905.]

Present:- Mr. Justice Knox.

1905.

KAMTA NATH v. THE MUNICIPAL BOARD OF ALLAHABAD.

Act (Local) No. I of 1900 (N. W. P. and Oudh Municipalities Act), ss. 3, 87-Municipal Board-Bye-laws-Interpretation of Statutes.

Where a rule framed by a Municipal Board forbade the "erection or re-erection of any building" in the civil station except with the previous sanction of the Board, it was held that such prohibition could not apply to the inclosing by means of a canvas screen of a certain space adjoining a house.

3497

XI-423C.'

dated

By a rule framed under the provisions of section 87 (2) of the North-Western Provinces and Oudh Municipalities Act, 1900, confirmed by the Local Government by G. O. No the 14th of November 1901, the Municipal Board of Allahabad forbade the "erection or re-erection of any building" in the civil station except with the previous sanction of the Board, and the breach of such rule was made punishable by a fine not exceeding Rs. 50. One Kamta Nath, the occapier of a house in the civil station of Allahabad, enclosed, by means of kanauts or canvas screens, a small piece of ground adjoining this house, without obtaining permission from the Board to do so. For this he was prosecuted on the complaint of the Board, and on trial by the

KAMTA NATH V. THE MUNICIPAL BOARD OF ALLAHABAD.

Joint Magistrate of Allahabad was convicted of a breach of the rule above referred to and fined Rs. 10. From this conviction and sentence Kamta Nath applied in revision to the High Court. Colvin and Durga Charan Banerji, for the applicant.

The Officiating Government Advocate (Wallach), for the Municipal Board.

Knox, J.-Babu Kamta Nath has been convicted of an offence under a rule made by the Municipal Board of Allahabad in pursuance of powers which the Board conceive have been given them under Act No. 1 of 1900 he has been sentenced to pay a fine of Rs. 10. The rule against which he has offended is a rule which the Municipal Board passed under clause (2) of section 87 of the above-named Act. The rule was confirmed by the Local Government. It runs as follows: "The Municipal Board of Allahabad hereby requires, with reference to clause (6) of section 87 of the North-Western Provinces and Oudh Municipalities Act, 1900, that its previous sanction be obtained to the erection or re-erection of any building in the civil station." I am asked to revise the conviction and sentence on the following grounds: first, that no offence has been committed and that the learned Magis trate has put a wrong construction on the words 'rect or re-erect any building,' and, secondly, that if the rule is capable of this construction it is a rule which the Municipal Poard had no power to pass under any provision given them under the statute. These two objections I propose to consider together. Section 87 of Act No. I of 1900 authorizes a Municipal Board to require a person who intends to erect or re-erect any building to submit before such erection or re-erection a sufficient plan or specification of the building which he so intends to erect or re-erect together with a site, plan and other reasonable details.

The expression erect or re-erect any building' has been defined in the Act-Vide section 3, clause 9. The prosecution contend that the case falls within sub-division (d) of section (3), clause (9), and that by adding certain structures to his building Kamta Nath has erected a building without first obtaining sanction required by the rule confirmed by the Local Govern.

the

KAMTA NATH V. THE MUNICIPAL BOARD OF ALLAHABAD.

ment under date the 14th November 1900. The structure which Kamta Nath has erected is thus described in the Judgment:-"Babu Kamta Nath has enclosed a small space adjacent to his bungalow by means of kanauts or canvas screens. I cannot find whether the space so inclosed has been roofed in in any way, but the question whether it has been so roofed or not does not affect my decision,"

Act No. I of 1900 is an Act passed by the Local Government. It is an Act which in many of its provisions, and specially in the provision which I have to consider, encroaches on the rights of the subject as regards property. The recognized rule of interpretation in such a case is that any words contained in it should be interpreted if possible so as to respect such rights-See Hough v. Windus (12 Q. B. D, 244). "It is presumed" (I quote from Maxwell on the Interpretation of Statutes, 3rd Edition, at p. 899), where the objects of the Act do not obviously imply such an intention, that the Legislature does not desire to confiscate the property or to encroach upon the rights of persons; and it is therefore expected that, if such be its intention, it will manifest it plainly, if not in express words, at least by clear implication and beyond reasonable doubt. It is a proper rule of instruction not to construe an Act of Parliament as interfering with or injuring persons, rights without compensation unless one is obliged so to construe it."

Considering section 87 of Act No. 1 of 1900 in this light the first point to note is that this section does restrict the natural rights of an individual to erect or re-erect a building on land which is his property. The words "erect or re-erect are not without significance and must be given their full value when I come to consider what is meant by the addition of a structure to a building. Is the enclosure of a space, as the prosecution contend, an addition of a structure" to his building? No one would contend for a moment that if Babu Kamta Nath had laid a pile of canvas structures on the ground he would thereby have come within the range of the definition "erecting a building." The addition aimed at, as the word "erect" shows, is an addition which is raised into an upright position or set up. Further, if

"

KAMTA NATH V. THE MUNICIPAL BOARD OF ALLAHABAD.

the word "erect" be studied in Murray's Dictionary (vide Vol. 2, p. 268), it will be seen that the word is never used except with some idea of permanence attached to it, and, agreeing with this definition of the word, I hold that the addition which is contem plated in section 3, clause 9 (a), is an addition of structures of permanence and utility, in short of structures ejusdem generis with the words "Rooms, buildings, out-houses." Each one of these words carries with it an idea of permanence and utility, which I fail to find in the mere enclosing of a space by canvas screens. Again, while it is true that the word "structure" has a significance which may be made to extend to any mass of any material piled one upon another, I find by referring to Webster's International Dictionary (in this case I have not the advantage of being able to refer to Murray) that while "structure" means "that which is built; a building," the author of the Dictionary adds especially a building of some size or magnificence; an edifice." It may be reasonably doubted whether the Legislature did intend the word "structure" here to have exclusive reference to buildings of size and magnificence. It is equally improbable that they intended the word to refer to enclosures made by the use of materials such as canvas screens. To suppose that the Legislature intended that any man who wished to enclose a space with a "sirki" protection, such as may be seen any day within municipal limits of Allahabad erected for the shelter of punkah coolies from heat or rain, must before doing so apply to the Municipal Board for sanction (and yet according to the prosecution such an Act would be the erection of a building within the meaning of the Statute) is an interpretation ad absurdum. The prosecution in their arguments did not repudiate such an interpretation: the answer made was that the Municipal Board could be trusted to exercise its powers with discretion, that they never have and never would prosecute a person who had made such an enclosure without sanction. This is, however, no answer at all. The person making such an enclosure without the sanction either does, or does not commit an offence. The law-loving citizen is presumed to avoid the commission of offences whether they be or be not followed up by a prosecution. If such enclosing is an offence, the person enclosing would have, every time he puts up a shelter for

KAMTA NATH V. THE MUNICIPAL BOARD OF ALLAHABAD.

66

his punkah coolie or gardener, to go through the burden of applying to the Municipal Board and awaiting their sanction for a whole month before he could venture to make the enclosure. If the law intended to restrict the rights of Municipal citizens of Allahabad in this manner, its intention should have been plainly manifested and put beyond reasonable doubt. My attention has been called to section 3, clause (8) of the City of Bombay Municipal Act of 1888, in which the word building" is defined as including a house, out-house, stable, shed, hut and every other structure whether of masonry, bricks, wood, mud, metal or any other material whatever. I am not called upon to construe these words-I only note that while these words are apparently of wider extent than anything to be found in Act No. 1 of 1900, they do not contain reference to material of such temporary, and, I might almost add, flimsy quality as canvas and sirki. Even if similar words were to be found in Act No. I of 1900, I should, applying the principle jusdem generis, hesitate to make them include material of canvas. Much more do I hesitate when I find the Legislature making use of no such extended language.

Passing to the further contention raised for the applicant, I agree that if the intention of the Municipality was to require persons who wished to enclose a small space with canvas screens first to obtain its permission and upon pain that if they do not obtain it they will be proceeded against as offenders under the rule above cited, such a rule, looking to the whole scope and intent of section 87, was ultra vires.

Section 87 empowers the Board when considering whether sanction should be given to a building to direct how much of a free passage or way should be left in front of the building, what is to be the method of ventilation, the position of the drains, the level or width of foundation. They are to refuse sanction if the erection would be prejudicial to the health, safety or convenience of the public or of persons residing in the vicinity. They are empowered to ask for site plans with details. It is impossible to suppose that those who framed section 87 intended it to apply to acts such as the enclosing of a space with screens