TYAGI, J.—This is a reference made by the Sessions Judge, Bharatpur and it arises out of the following circumstances.

2. Petitioner Mst. Dhoopo raised certain constructions within the municipal limits of Deeg without the permission of the Municipal Board and, therefore, a notice was issued to her by the Municipal Board, Deeg, to refrain from making the construction. When she did not pay any attention to that notice and continued the construction undertaken by her, the Municipal Board, lodged a complaint against the petitioner in the court of the Sub-Divisional Magistrate, Deeg under secs. 170(11), 203 and 251 of the Rajasthan Municipalities Act, 1959. The learned Magistrate after recording the evidence of the parties found the petitioner guilty of committing offence of raising construction on a public street without the permission of the Municipal Board and, therefore, she was convicted under secs. 170, 203 and 251 of the Rajasthan Municipalities Act,1959, and she was sentenced to pay fine of Rs. 10/,- 25/-and Rs. 15/- respectively on these counts. The learned Magistrate also ordered that in default of the payment of the fine she would serve simple imprisonment for a week. The petitioner thereupon preferred a revision application before the District and Sessions Judge, Bharatpur, who after hearing the parties came to the conclusion that the petitioner has not committed any offence under the Rajasthan Municipalities Act and therefore, recommended that the conviction and sentence passed by the learned Sub-Divisional Magistrate may be set aside. While making this recommendation the learned Judge further observed that the learned Magistrate had no jurisdiction to award a sentence of imprisonment in lieu of fine in view of the provisions of sec. 265(2) of the said Act.

3. This reference raises certain important questions of law which I would like to deal one by one.

4. The learned Judge came to the finding that the petitioner had raised construction in her private building therefore, she could not be convicted under sec. 170(11) of the Act. This recommendation is probably made on the assumption that 170 is applicable only when the construction is raised on land belonging to the municipalities and as the petitioner was raising a construction on her private land she could not be found guilty of an offence under sec. 170 of the Act. This, in my opinion, is a misreading of the law. Sec. 170(11) of the Act reads as follows—

"Sec. 170(11). Whoever begins, continues or completes the erection or re-erection of, or any material alteration in, a building or a part of building or the erection or re-erection of any projecting portion of a building in respect of which the board is empowered by sec. 166 to enforce a removal or set-back or the construction or enlargement of a well without giving the notice required by sub-sec. (1) or in contravenetion of any provision of this section or of an order of the board made under sub-sec. (6) or sub-sec. (7) shall be liable on conviction to a fine which may extend to two hundred rupees......"

The perusal of this section indicates that the offence envisaged under this provision is for raising construction without giving notice as required by sub-sec. (1), or in contravention of any order of the board made under sub-sec. (6) or sub-sec. (7) of this Act.

5. The charge against the petitioner was that she had started construction without any notice to the board as required under sub-sec. (1) of this section and, therefore the question of raising construction on public place or on municipal land is not an ingredient to commit an offence under sub-sec. (11) of sec. 170 of the Act. This is admitted that no permission was ever sought by the petitioner to raise construction even in her private building and, therefore, she cannot be absolved from the liability of raising construction without permission. In such circumstances the conviction under sec. 170(11) is quite in order.

6. The learned Judge after appreciating the e

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