Mahesh Shah vs Darbari Hussain

This is a reference by the Sessions Judge of Shahabad u/s 439 of the Code of Criminal Procedure, recommending that the conviction of, and the sentence passed by, the Magistrate upon the accused under the Bye-law framed by the District Board of Shahabad u/s 139 of the Local Self-Government Act (Act III of 1885 B.C.) be set aside, on the ground that the Bye-law in question is ultra vires.

The Bye-law in question runs as follows:

Whoever encroaches on any road by cultivating crops, or by ploughing it up for cultivation or by the construction of any building or structure thereon, except by the permission of the Chairman of the District Board, shall be liable to a fine not exceeding Rs. 50 and to a further fine not exceeding Rs. 2 for every day on which the offence is continued.

Section 139 of the Act says; "Every District Board or Local Board, empowered in this behalf by the Lieutenant-Governor, may, subject to the control of the Lieutenant-Governor, make Bye-laws for carrying out all or any of the purposes of this Act."

Section 140 empowers the Board to provide for the punishment of the breath of the Bye laws with fine which may extend to Rs. 50, and in the case of continuing breach with a further fine which may extend to Rs. 5 for every day during which the breach is continued.

Thus, a District Board is empowered to make a Bye-law for carrying oat the purposes of the Act.

Section 78 of the Act enjoins upon the District Board the duty... to provide for the repair and maintenance of roads, etc., which have been taken charge of by the Board under the Act, or towards which it may have agreed to contribute.

The learned Sessions Judge holds that the words "repair and maintenance" in the section cannot possibly include encroachment on the roads and, therefore, the District Board has no right to make a Bye-law for the, purpose of punishing parsons making encroachments upon the roads. He has relied upon the case of Ramanath Ghose v. Emperor 11 C.W.N. (175) which fully supports his views and is on all fours with the present case.

Now, the words "provide for" in the section mean, to procure means in advance or to take measures in view of an expected or possible need, and the word "maintenance" of road means, the keeping it up. Maintenance of way has a technical meaning of maintaining in repairs all fixed property of a road, such as, tracks, bridges, etc. which are the necessary appurtenances. The above meanings of the words have been taken from Webster''s and the Imperial Dictionaries.

Thus, under the section, a duty is cast upon a District Board to keep the road in repair and to maintain it by keeping in repairs the bridges, tracks, etc., on the road by providing funds and taking necessary measures with respect thereto.

On the one hand, it is possible to contend that no duty is cast upon the District Board to provide by its Bye-law for the punishment of persons encroaching upon their roads. On the other hand, it is difficult to see how a road can be maintained in its proper condition without preventing encroachments thereon and, impliedly, the District Board would be deemed to be authorised to make Bye-laws making encroachments penal, in addition to the provisions made for dealing with encroachments on roads by the penal laws of the country, such as, the Indian Penal Code and the Code of Criminal Procedure (section 133). The point is not free from difficulty and, in view of the decision of Stephen, J., in the case cited above, I was, at one time, inclined to refer this case for the consideration of a larger Bench so as to decide the point once for all, inasmuch as it is of great public importance. On further consideration I have come to the conclusion that the case should not be referred to a larger Bench but should be decided by us.

No decision of any Court, excepting that of Stephen, J., referred to above, has been shown to us. I have fully considered that decision in the light of the provisions of the Local Self-Government Act, and hold that the District Board has impliedly, if not expressly, power to provide for, by its Bye-laws, the punishment of encroachments over its roads, in order to carry out the provisions of Section 78 of the Act, namely, to provide for the repairs and maintenance of its roads, etc. Section 139 empowers the District Board to make Bye-laws and Section 140 empowers it to impose punishment for the breach of Bye-laws.

I, therefore, differ from the view taken by the learned Sessions Judge of Shahabad as well as by the Calcutta High Court, and hold that the Bye law is not ultra vires, and the conviction of, and the sentence passed upon, the petitioner was not without jurisdiction.

I decline to accept the reference.

Adami, J.

I agree.