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TMI Blog1935 (3) TMI 23X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 this Full Bench is, whether a criminal Court, can in a prosecution under S. 307, Municipalities Act, for failure to obey a notice issued by a Municipal Board under S. 186 of that Act, go into the question of the legality and reasonableness of the notice. Although the question is put in a general and abstract form, I think it is necessary to state briefly the facts out of which it has arisen. 4. The respondent Mumtaz Husain bought a house within the limits of Sibapur Municipality in October 1931. According to the case for the prosecution Mumtaz Husain constructed a chabutra and a thatched shed in front of his house without obtaining from the Municipal Board permission to make such constructions. On 22nd October 1932, the Municipal Board issued a notice under S. 186, Municipalities Act, to him statin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 provided by the statute under S. 318, and appealed to the District Magistrate. The District Magistrate considered the propriety and legality of the notice and dismissed the appeal. Now we come to the important S. 321, upon the interpretation of which the decision of this reference primarily turns. This section lays down that no order or direction referred to in S. 318 shall be questioned in any other manner or by any other authority than is provided therein. It' further lays down that the order of the appellate authority confirming, setting aside or modifying any such order or direction shall be final. Under S. 321, therefore the appellate order of the District Magistrate was final. I take this to mean that the question of the legality and propriety of the notice, which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... avour 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 Municipal Board had no jurisdiction to issue the notices. It was held that S. 318 gave to the accused a remedy by way of appeal to the District Magistrate to challenge the legality or validity of the notices, and as he failed to avail himself of that remedy, the criminal Court was under S. 321, precluded from questioning the legality or validity of the notices. It was further held that there is nothing in the language of S. 307, Municipalities Act which indicates that it is the duty of the Court to satisfy itself that the notice was lawfully issued by the Municipal Board. As I was a member of the Bench which decided that case, I may say that I still adhere to the same view. I think there is an important difference between the language of S. 147, U.P. Municipa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sive 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 is necessary to consider the position in case no appeal has been preferred to the District Magistrate under S. 318 in such a case I think that in a prosecution under S. 307 the trying Magistrate can consider and decide whether the notice in question was given by the Board under S. 186. I think it is open to the Magistrate to hold that the notice was void ab initio, a mere nullity which is devoid of any legal consequences, and therefore that it is not a notice which has been given under S. 186 and therefore failure to comply with it does not constitute an offence under S. 307. Cases of this sort are probably rare, but it is possible, for example, that the notice was issued by a Subordinate Official who was not empowered to do so on behalf of the board. Or the notice might have been issued in re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 above, but if it appears that the order was not a complete nullity, then I think it is not open to the Magistrate to question whether the Board's jurisdiction was wrongly or illegally exercised. 14. The case of Ram Charan v. Improvement Trust, Lucknow AIR 1925 Oudh 546=85 IC 243=26 Cr L J 499 was decided by a single Judge of the Judicial Commissioner's Court In that case it was held that if a notice is not issued according to the provisions of the Act, a person to whom the notice is issued may disobey it and yet not be liable to punishment ; hence to sustain a conviction under S. 307 it is necessary to prove that the notice was issued under the provisions of the Act or under a rule or a bye-law. This judgment is very brief. We do not know under what section of the Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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. 185 The statute itself however does not require the Municipal Board to consider in good faith. Probably it was not contemplated that a Municipal Board would act otherwise than in good faith, but as the law stands the Board is given complete discretion and if it acts in bad faith, its proceedings are not vitiated for that reason. I have every sympathy with the learned Judge in wishing to acquit the accused in that case. His decision was certainly just and equitable, but it does not rightly interpret the effect of Ss. 186, 307 and 321. The last case for the respondent is Kashi Prasad Verma v. Municipal Board Benares AIR 1935 All 28=154 IC 750=36 Cr L J 560. 17. In that case it was held that the jurisdiction of a criminal Court hearing a complaint under S. 155, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 authority of, or assented to, by the legislature. It was shown in that case that the marginal notes to the sections of the Agra* Pre-emption Act, 1922, should be regarded as inserted in the Act with the assent and authority of the Legislative Council and that they could be referred to for the purpose of interpreting the sections. We have no information as to whether the procedure adopted by the Legislative Council in, passing the U.P. Municipalities Act of 1916 was similar to the procedure adopted by the Legislative Council in passing the Agra Pre-emption Act of 1922, but we have no reason to suppose that the procedure was different. If the marginal note of S. 164 can be referred to as showing what meaning the legislature attached to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ying 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 whether such procedure is desirable and just seems beside the point. It is not for us to justify the acts of the legislature but to give effect to them. If the District Magistrate's appellate order happens to be made in conformity with the decision of the High Court, on a reference regarding the legality of the notice, it would perhaps be more difficult to stress the injustice to the accused in precluding the trying Magistrate from re-opening and deciding the question decided by the final order. But the principle is the same whether the appellate order represents the District Magistrate's decision or the decision of the High Court. In either case the appellate order is final and I think the trying Magistrate cannot go behind it. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... easonable 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. final. There would be no finality in the order, if it could be questioned either in the civil Court or in the criminal Court. The provision is tantamount to this: that the District Magistrate as a Court of Appeal is given exclusive jurisdiction to deal with the legality or propriety of orders of the Board in matters provided for in S. 318. The province of a Court is only to expound the law as it stands and not to scan its wisdom or its policy. The language of S. 321 appears to me to be so plain and unambiguous that it can admit of but one meaning and except by straining it we cannot adopt a different construction. Next as regards S. 307 which deals with the consequences of disobedience to a notice all that the section requires is that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 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, Municipalities Act, and there arose no question of any notice issued by the Municipal Board much less of the validity or legality of such a notice. In fact, the learned Judges attention was drawn to S. 318, Municipalities Act, but the learned Judge was of opinion that the discussion (whether the provisions of S. 318 would apply to the facts of the case) is not really relevant, because the validity of the conviction of Mannu for breach of the rule prohibiting unlicensed persons to use any plot of land within Municipal limits for the purpose of storing wood does not depend upon the consideration of the remedies, if any, open to Mannu against the refusal of the Municipal Board to grant him the license for which he applie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lature 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 guard against even the remotest possibility of such a person moving the criminal Court, they used a word comprehensive enough to include criminal Courts. Reliance was also placed on the marginal note to S. 164 which runs, Bar to jurisdiction of Civil and Criminal Courts in matters of taxation; but in the first place their Lordships of the Privy Council have held that marginal notes to the sections of an enactment are not part of the enactment and cannot he relied upon for basing an argument about the construction of the enactment; in the second, there is no similar marginal note to S. 321 with which we are concerned at present; and in the third, the view ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uch 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 J 377=36 All 185, it was urged that they were under the old Municipalities Act of 1900, in which S. 147 itself showed that what was made an offence was the disobedience of any lawful direction of the Board or of any notice lawfully issued bi it and much stress was laid on the fact that the words 'lawful' and 'lawfully' were omitted from the penal section 307 of the present Act. It was therefore argued that the omission of these words from the penal section indicated that the intention was not to leave the plea of illegality of the direction or notice open to the accused. This argument was no doubt accepted in the c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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