Emperor vs Atmaram Shamji

Norman Macleod, C.J.—The accused was convicted by the Special Magistrate, Third Class, u/s 155 of the Bombay District Municipal Act of having disobeyed a lawful direction given by a written notice issued by the Dholka Municipality to remove an otla. The facts are that at least since October 1919 this otla was in existence. The Municipality, on the 17th December 1920, sent a notice to the accused:-

You are informed by notice u/s 122 of the District Municipal Act that you by making an otla, at the side-wall of your house in the said street have encroached on Government land. Therefore within seven days of the receipt of this notice you should remove the said otla. If you neglect to do so, steps will be taken according to law.

The otla was not removed, and so the proper step according to law which the Municipality should have taken was to remove the otla themselves and charge the accused with the cost of the removal. Instead of proceeding in that manner, as provided by Section 122, they charged the accused with having disobeyed a lawful order. An appeal against the conviction was rejected, but we think that the conviction was clearly wrong. Section 122 gives no power to a Municipality to issue a notice to a person alleged to have erected an encroachment to remove it, although the Municipality may send such a notice, it is not a notice under the section. Such a notice might be sent as a matter of courtesy, preliminary to the Municipality taking action under the powers given them by the section to remove the encroachment themselves. Since these special powers have been given, it seems to me that, was the proper remedy as laid down by the Legislature in cases of failure to comply with such a notice. It was not intended, assuming a Municipality served a notice upon a person to remove an encroachment, that if he did not do so he might be convicted u/s 155. I think, therefore, the conviction was wrong, and the accused must be discharged, and the fine, if paid, refunded.