JUDGMENT

M. H. Hussain, J. - This is a reference made by the learned Sessions Judge, Varanasi, for setting aside the impugned order dated 5th April, 1969 passed by the Addl. City Magistrate, Varanasi convicting the applicant under section 460 of the Nagar Mahapalika Act, 1959 and sentencing him to pay a fine of Rs. 150/ or in default of payment of fine to undergo simple imprisonment for one month.

2. The brief facts are that the applicant was prosecuted by the Nagar Mahapalika under section 326/327/460 of the Nagar Mahapalika Act for having constructed boundary wall in front of his house without obtaining due permission of the Nagar Mahapalika.

3. The applicant pleaded not guilty and contended that he had submitted for approval a site plan for the construction of the boundary wall and no orders thereon had been passed by the Nagar Mahapalika and since there was an apprehension of encroachment over his land, therefore, he constructed the boundary wall. It was also contended that Ch. XIII of the Nagar Mahapalika Act relating to building regulations had been suspended by the U. P. Regulation of Building Operations Act, 1958, and therefore, the applicant could not be prosecuted under Sections 326, 327 of the Nagar Mahapalika Act.

4. The trial court after considering the evidence on record and the contention of the applicant, held the applicant guilty and convicted him under section 460 of the Nagar Mahapalika Act, 1959, and sentenced him to a fine of Rs. 150/-.

5. Aggrieved by the aforesaid order, the applicant went up in revision and the learned Sessions Judge has made a recommendation for the setting aside of the impugned order on the ground that Ch. XIII of the Nagar Mahapalika Act having been suspended by the U. P. Regulation of Building Operations Act, and therefore, the conviction of the applicant was illegal and must be quashed.

6. Sri N. L. Ganguli, has appeared in support of the reference and Sri Hyder Shaukat Abidi has appeared on behalf of the State.

7. I have heard the learned counsel and seen the explanation of the magistrate.

8. The Nagar Mahapalika Act was passed in 1959. The U. P. Regulation of Building Operations Act was enacted on 16th October, 1958 and it was subsequently amended by the Amending Act XXIX of 1966. By the Amending Act sub-S. (2) was added to S. 3 and by sub-S. (2) Ch. XIII of the U.P. Nagar Mahapalika Adhiniyam and certain provisions of other Acts were suspended in areas which were declared as "regulated areas" under the U.P. Regulation of Building Operations Act. The applicant was prosecuted for offences under sections 326 and 327 of the Nagar Mahapalika Act and both these sections fall within Ch. XIII of the Nagar Mahapalika Adhiniyam which has been suspended by sub-Sec. (2) of S. 3 of the U. P. Regulation of Building Operations Act, 1958 as amended by Act XXIX of 1966. The U.P. Regulation of Building Operations Act was extended to the whole of the Uttar Pradesh. It is thus clear that the conviction of the applicant under section 460 of the Nagar Mahapalika Act in respect of offences under section 326 and 327 of the Nagar Mahapalika Act is illegal.

9. Accordingly, the impugned order of the magistrate dated 5th April, 1969 and the conviction of the applicant u /S. 460 of the Nagar Mahapalika Act 1959 and the sentence of fine of Rs. 150/ are set aside.

10. The reference is accepted.