Norman Macleod, Kt., C.J.
1. On June 28, 1923, a complaint was filed before the Honorary Special Bench Magistrates, Bander, by the Town Daroga of the Rander Municipality against two persons, Thakordaa Motiramand Jamnadas Narandas.
2. The complaint stated that the house of accused No. 1 was situated at Tika 3, Survey No. 57A. in the Parekh Moholla, Permission had been given to him to build the house on February 8, 1923, and the Rajachithi had been taken on his behalf by accused No. 2 It was mentioned in the Rajachithi that the house was to be built after leaving open the land within the alignment. In spite of that, building within the alignment was commenced on March 4. Notice was sent to stop the work on March 7, but the building continued. On May 7, the Managing Committee passed a resolution ordering the complainant to institute criminal proceedings. The complaint was accordingly made under Section 96 of the Bombay District Municipal Act, and also under Section 153 as the accused refused to comply with the order in the notice sent to them.
3. The Magistrates by a majority acquitted the accused. They considered that the Rajachithi given by the Municipality was not in accordance with law, because the Municipality had no authority under Section 96 of the Act to take land, and could not pacs orders to relinquish land. It had powers under Section 92 to order relinquishment, and under Section 91A to take steps, but in spite of that the Municipality had not exercised the provisions of those sections.
4. The Government of Bombay have appealed. On August 80, 1922, accused No. 1 sent Ext. 11 to the Secretary of the Municipality intimating that his house on Survey No. 57A, Tika 3, had to be demolished and he intended to build it anew, Permission was requested after whatever inquiry was to be made was over. On September 6, accused No. 1 wrote that he did not intend to build at present. So he requested the Municipality to cancel his application This was filed on September 11, 1922.
5. On January 29, 1923, accused No. 1 sent another application (Ext, 11) for permission to build his new house. It was placed before the Managing Committee on February 4, and on . February 8, the Rajachithi was issued, Ext. 14. The accused No. 1 was informed that in accordance with the resolution passed by the Managing Committee the house on Survey No. 57 A, Tika 3, was within alignment, so he was permitted to build anew according to the measurement in the Sanad after leaving open land going within the alignment measuring eight feet and ten inches at the northern end and thirteen feet and seven inches at the southern end and twenty-six feet and four inches long.
6. On March 7,1923, a notice, Ext. 18, was sent to accused No 2, as follows
There is the house on Survey No. 87 Tika 3 in Parekh Falia of the Town of Rander belonging to Mr. Thakordas Motiram The building work of that house is being done under your supervision. You have also received the Rajachithi on his behalf and signed in taken of receipt. Though yon were ordered to leave open the land coming within alignment, you have not left it open and against this permit you have commenced building work on the land coming within alignment. Therefore you are ordered by this notice that the building work which you have commenced in the land within alignment should be stopped at once. If you fail to stop it in compliance with the notice and continue further work legal stops will be taken to remove the work done without permission and in disobedience of the notice.
7. As no attention was paid to this notice the Managing Committee resolved on May 7, Exhibit 2, that a complaint should be lodged. In the meantime accused No. 1 had sent in an application dated March 16, that the resolution passed previously might be cancelled and the alignment changed. This was rejected on September 7, 1923. Another application was sent in on March 29 by accused No. 2 on behalf of accused No. 1 that he might be allowed to finish the work but no reply was sent to this.
8. Narharishankar Ramshankar deposed that he had done the work of the alignment fixed by the Municipality in the Parekh Moholla. The resolution to keep the road thirty feet wide was passed on July 7, 1921. Nagindas Vithaldas, who was Secretary to the Municipality in March 1923, deposed that land within the alignment had been built over.
9. There can be no doubt, therefore, that permission was given to accused No. 1 to build on certain conditions, one of which was that the land within the alignment should be left open and that in defiance of this condition building work was done on land within the alignment. It would certainly seem strange if the Municipality in such a case had no remedy. Counsel for respondents mainly relied upon the decision of this Court in Bai Fatma v. Rander Municipality I.L.R(1914) 38 Bom. 597 : 16 Bom. L.R. 929. The plaintiff' being the owner of a house in Rander applied to the Municipality for permission to rebuild. A permit was granted subject to various conditions prescribed presumably under Section 96 (2) of the Act, one of which was as follows :-'For the improvement of the said road you must leave on that side a space in length...and in width fourteen feet.' Scott 0. J. said (pp. 603-609) :-
The power of the Municipality under the section to prescribe the location of the building is given in relation 'to any street existing or projected as they think proper.' They have prescribed the location of the building in relation, not to the existing street, but to a street which may come into existence in the lature. But we do not think that on the admitted facts it can be said that there is a projected street 14 feet in width, for there is no regular line determined either for the existing street or for the future as contemplated in Section 92. The permit) clearly shows that the first condition is not for the purpose of sanitation or for the purpose of ventilation, but simply for the improvement of the street by widening it, and the object is to get a set-back which cannot be obtained under Section 92, because the conditions contemplated in that section do not yet exist. The result is that if the condition of the permit were complied with the plaintiff would have to give up or keep vacant and unproductive a considerable portion of her land, and the Municipality would have the opportunity of paying compensation for it at any time they might feel disposed to do so, which would be contrary to the provisions of Section 92 which contemplate that when a set-back is determined upon compensation shall be paid to the owner.
10. Accordingly plaintiff was granted the injunction she asked for.
11. It is important to note that there was no regular line of a public street determined upon in the locality where the plaintiff's house was situated. Nor could it be disputed that where the conditions contemplated in Section 92 existed, a Municipality could not get a set-back without paying compensation as provided for by Sub-section 3
12. Thereafter a very important alteration in the law was effected by the addition of Section 91A to the Bombay District Municipal Act by Bombay Act VIII of 1914, which may very well have been enacted in order to obviate the inconvenience arising from a Municipality having to pay compensation for scattered setbacks within the regular line of a street long before the street itself could be widened.
13. Sub-section 1 makes it the duty of every Municipality to prescribe a line on each aide of every public street within the Municipal district, and the Municipality may from time to time prescribe a fresh line in substitution for any line so prescribed, or for any part thereof, provided that public notice must be given and all objections considered within the time specified in the notice.
14. By Sub-section 2 the line for the time being so prescribed shall be called the regular line of the public street.
15. Then by Sub-section 3, except under the provisions of Section 113, (with which we are not now concerned), no person shall construct, or without the permission of the Municipality under Section 96 reconstruct, any portion of any building within the regular line of the public street, and by Sub-section 4 whoever contravenes the provisions of Sub-section 3 shall be punished with fine which may extend to 1,000 rupees, and the Municipality may (a) direct that the building be stopped and (b) by written notice require such building or portion thereof to be altered or demolished as they may deem necessary.
16. It seems unfortunate that the proceedings were not taken against the accused under Section 91A instead of under Section 96. However that may be, by Act VIII of 1914 a consequential amendment was made to Section 96 adding the words 'or is empowered by Section 91A to give permission to reconstruct.'
17. The accused No. I was therefore, bound to ask for permission under Section 96 to reconstruct his building within the regular line of the street, and the Municipality were entitled to issue such orders as they thought proper not inconsistent with the Act, and to impose in writing such conditions with reference to the location of the building in relation to any street existing or projected as they thought proper, Any reference, therefore, to Section 92 is quite irrelevant and the suggestion that the Municipality could not refuse permission to build within the regular line of the street without paying compensation cannot be sustained.
18. The scheme of Section 92 is quite different from that of Section 91 A. There is no question of an owner applying for permission to build, but certain powers are given to a Municipality, if any of the conditions mentioned therein exist, to require the owner by written notice to remove his building to the regular line of the street or the front of the adjoining building on either side.
19. The penalty for not complying with the orders of the Municipality issued under Section 96 is provided by Sub-section 5.
20. We are therefore of opinion that the Magistrates were wrong in acquitting the accused. We allow the appeal and record a conviction against both the accused under Section 96 (5). In the circumstances of the case we direct each of the accused to pay a fine of Rs. 50.
Coyajee, J.
21. I concur, The relevant provisions of the Bombay District Municipal Act, 1901, are ss 91A and ,96; they fall under Chapter IX which deals with 'Municipal powers and offences.' Section 91A, which was inserted therein by Bombay Act VIII of 1914, casts upon every Municipality the duty to prescribe a line on each side of every public street within the Municipal district; it also empowers the Municipality to prescribe from time to time a fresh line in substitution for any line so prescribed or for any part thereof. These powers are subject to the conditions that before prescribing such line or such fresh line, the Municipality shall give sufficient public notice of the proposal, and shall also consider any written objection or suggestion that may be offered in regard to such proposal. The line for the time being so prescribed is called 'the regular line of the public street.' Sub-section (3) then enacts that subject to the exception, with which we are not concerned, 'no person shall construct, or without the permission of the Municipality under Section 96 re construct, any portion of any building within the regular line of the public street.' Sub-section (4) imposes a penalty on persons contravening the provisions of Sub-section (3).
22. It appears from Exhibits 11 and 18 that Thakordas Motiram (accused No. 1) owned a house, in Survey No. 57A, Tika 3, of Rauder; he wanted to demolish it and erect a new building on its site. In August 1922 Jamnadas Narandas (accused No. 2) applied on his behalf to the Municipality for permission to reconstruct it. The application was withdrawn in September 1922, but renewed on January 29, 1923 It was made in accordance with Section 96 of the Act. The material words of Sub-section (1) are : 'Before beginning to erect' any building...or to reconstruct any projecting portion of a building in respect of which the Municipality is empowered by...section 91A to give permission to reconstruct it, the person intending to build... shall give to the Municipality notice thereof in writing' &0; the explanation to the section defines the expression 'to erect a building.' The regular line of the public street where the house in question was situated was prescribed some time before August 1922, On February 8, 1923, the Municipality granted the Rajachithi, Ext. 14, in these terms : 'You are informed that the house on Survey No. 57A, Tika 3 is within alignment. You are, therefore, permitted to build anew according to the measurements in the Sanad, after leaving open land going within the alignment measuring feet 8-10 at the northern end and feet 13-7 at the southern end and feet 26-4 long, alongside the building as shown in the map The permit has been given subject to the conditions on the back. Hereby permission to do anything else is not given,' The first condition refers to what is already set out above. It was, in my opinion, competent to the Municipality to impose that condition under sub-8. (2) of Section 96 which says : 'The Municipality may issue such orders not inconsistent with this Act as they think proper with reference to the work proposed in such notice and may either give permission to erect...the building according to the plan and information furnished or may impose in writing such conditions...with reference to the location of the building in relation to any street existing or projected, as they think proper,' &c.; The condition imposed by the Municipality had reference to the location of the building in question in relation to the street, The evidence adduced in this case, which is fully set out in the judgment of the learned Chief Justice, establishes the fact that the accused persons constructed a portion of the new building within the regular line of the public street in violation of the said condition and contrary to the legal orders of the Municipality issued under Section 96. They have, therefore, become liable to the penalty prescribed in Sub-section (5). The majority of the Bench of Magistrates who tried the case, are, however, of a different opinion. The Chairman says : 'The Rajachithi given by the Municipality is not in conformity with law, because the Municipality has no authority under Section 96 of the District Municipal Act to take land and cannot pass orders to relinquish land. But it has powers to order relinquishment of land under Section 92 of the Bombay District Municipal Act, and in empowered under Section 91A to take steps, But in spite of this, it appears that the Municipality has not exercised provisions of these sections this time. If the Municipality wanted to order relinquishment of land coming within the alignment, then it should have taken steps according to law under Section 92 of the District Municipal Act after receipt of the application for the permission and before giving the permission,' The opinion of another member Mr. Chhotalal is this : 'The authority which the Municipality has to order the laud coming within the alignment to be left open under Section 96 arises after giving its value in money or sanctioning such payment, Accordingly it' after giving the price of the land, the permission with the condition of leaving the land open was given, the accused No. 1 could have been judged to be guilty,' The third Member gave no opinion at all. I am unable to agree with the opinion of the majority. Apparently they felt that a plain reading of the relevant provisions of the Act might lead to some inconvenience, and therefore the provisions themselves were unreasonable; they would, then, read into those provisions the condition suggested by Mr. Chhotalal, The prohibitions of Sub-Section (3) of Section 91A are, however, perfectly clear. They are not qualified by any such condition. The language used in Sub-sections (1) and (2) of Section 96 also is-so far at any rate as this case is concerned-free from ambiguity. When once the intention of the legislature is plain, ' it is not the province of a Court to scan its wisdom or its policy. Its duty is not to make the law reasonable, but to expound it as it stands, according to the real sense of the words ' (Maxwell's Interpretation of Statutes, 6th Edition, page 7). Section 92 of the Act deals with a different set of facts; it empowers the Municipality to enforce a removal or set-back; and a reference to its provisions is therefore not relevant to the present inquiry.
23. For these reasons I agree in the order proposed by the learned Chief Justice.