Full Judgment
Pramada Charan Banerji, J.
1. Muhammad Yusuf, the accused in this case, and Janki Das, the accused in the connected case No. 106 of 1917, have been convicted under Section 210 of Act II of 1916, the United Provinces Municipalities Act, and each of them has been sentenced to a small fine. The two cases have been submitted by the learned Sessions Judge with the recommendation that the convictions and sentences should be set aside. Muhammad Yusuf and Janki Das own shops abutting on a public road within the municipal limits of Dehra Dan. There is a drain in front of their shops which was apparently built at their expense. The drain is at the edge of the public road. Culverts have been built over the drain, but the present dispute does not relate to the culverts. The charge against Muhammad Yusuf was that he had placed wooden planks in front of his shop, supporting them by the culverts on one side and a tin canister on the other. Janki Das was prosecuted for putting planks over the space between two culverts, so as to cover the drain. The learned Sessions Judge finds: 'In both cases the erections, if they can be so denominated, are temporary ones, Neither the planks nor Muhammad Yusuf's canister are fixtures; all are placed in site in the mornings and removed when the shops are closed in the evenings. Presumably they can be and are also removed if and when it is desired to clean the drain, if it is necessary to remove them in order to perform this operation'. Section 210 of the United Provinces Municipalities Act provides that any person erecting or re-erecting any such projection or structure as is referred to in Section 209 without the permission thereby required or in contravention of any permission given thereunder shall be liable on conviction to a fine which may extend to two hundred and fifty rupees. Clause (b) of Sub-section (1) to Section 209, which is the clause applicable to the present case, refers' to the erection or re-erection of any projection or structure so as to overhang, project into, or encroach on, or over a drain in a street.'' There is no question of projection in this case. The question is whether the accused had 'erected' any 'structure' encroaching over a drain in a street. The learned Sessions Judge is of opinion that a structure referred to in Section 209, must mean a structure of a permanent nature. It seems to me that the view taken by the learned Judge is right. The use of the words 'erect or re-erect' which precede the word 'structure' indicates a structure of a permanent mature. The word 'structure' is not defined in the Act, but the use of the word 'erect' shows, as was observed in the case of Katnta Nath v. The Municipal Board of Allahabad (1905) I.L.R. 28 All. 196, that what was meant was something of the nature of a permanent structure. It does not seem to me that in enacting Section 209 the Legislature intended to place any other meaning on the word 'erect' than that held in the case to which I have referred. In this view the fixing of a portable plank cannot be deemed to be the erection of a structure within the meaning of Section 209 of the Act. The conviction of the accused was therefore in my opinion illegal. I accordingly set it aside and direct that the fine imposed on the accused, if paid, be refunded.