Full Judgment
George Knox, J.
1. Shiam Lal has been convicted under Section 147 of Act I of 1900, and sentenced to pay a flue of Rs. 10. The rule which he is considered to have broken is apparently contained in paragraph 5 of a paper which is on the record. That paper runs thus: 'The Municipal Board of Muttra hereby requires with reference to Section 87 of the North-Western Provinces and Oudh Municipalities Act I of 1900 that applications for building new houses or adding to existing ones may be sanctioned by the Public Health Sub-Committee only on the following conditions'. Condition No. 5 is: 'no projection shall be allowed in any lane whose width is less than 12 feet.' If this be a rule as authorized by Section 128B of the same Act, any such disobedience of such rule would be an offence under Section 147.
2. No other rule has been pointed out. I have gone carefully through the so-called rules but I do not find anything in them which in express terms requires the public to obtain previous sanction to the erection or re-erection of any building. It almost looks as if there were some rule or rules in existence which prohibits or prohibit persons is Muttra from erecting or re-erecting any building without previous sanction obtained. No such rule has been pointed out but it is contended that the case falls under Section 87, Clause (a), and I have to consider whether the act of the accused amounts 'to erect or re-erect any building, abutting on or adjoining a public street, or any public place or property vested in His Majesty or in the Board,'
3. The words or expression 'erect' or 're-erect' is defined in Clause 9 of Section 3 of the Municipalities Act, I of 1900. It is true that Clause 9 is not exhaustive but it may fairly be taken as a guide to the nature of acts which fall within the words of 'erect' or 're-erect' a building. The construction complained of is a covered-in balcony. There existed on the same spot a balcony of same kind and what the accused appears to have done is to have dismantled his old balcony and erected in its place the present covered-in balcony. Such an act certainly amounts to an alteration of a building, but I am not satisfied that it amounts to a material alteration or enlargement of any building.
4. I understand that the additional space enclosed by the new building exceeded the old by three inches by a length which may amount to five feet. I am fully aware of the inveterate habits of this country of adding inches and some times more than inches when balconies or chabutras are re-erected, but in the present case, I am unable to hold either that it is a material alteration or enlargement.
5. I accordingly set aside the order of the Bench of Magistrates. The fine, or any part of it, if paid, will be refunded.