JUDGMENT

Collister, J. - This is a reference by the Sessions Judge of Saharanpur, which arises out of the applicant's conviction u/s 307, Municipalities Act (2 of 1916). The history of the events which led upto the applicant's prosecution under the aforesaid section makes sorry reading. The applicant is Dr. Brij Behari Lal and he owns a compound within the municipal limits of Saharanpur. On 1st December 1930 he applied for permission to erect a building consisting of 48 apartments; and apparently he began to collect materials or do something of that kind, for we find that on 12th February of that year the executive officer submitted a report the substance of which was that the applicant should be informed that the matter was under consideration and that he should not start building until he obtained sanction; and it was further mentioned that upon a report by the sanitary inspector the applicant had been served with a notice u/s 186 of the Act. Three days later the applicant sent a reply in the following terms :

I have ordered the contractors to stop construction for a period of 15 days. If no sanction is forthcoming, after that time the work will be resumed.

2. On 18th February 1931 the applicant was again directed to stop construction until he obtained formal sanction; but on 24th March 1931 the executive officer issued an order to the effect that the latrine should be built according to the rules, but that in other respects sanction had been granted by the Chairman on condition that the applicant paid a penalty of Rs. 50 for starting to build without permission. This led to correspondence between the parties and on 23rd May 1932 the fine was reduced to Rs. 30 and this was paid on 4th July 1932. The order of sanction however was apparently not prepared and sent to the applicant until 19th July 1934: and we have no explanation of this remarkable delay. Thereafter the applicant proceeded with the construction of his building; but on 10th June 1935 the executive officer served a notice upon the applicant, in which it was said that the latter had built a temple and a circular platform without permission and contrary to the sanctioned plan, and the applicant was directed to demolish these constructions within a week on pain of being prosecuted u/s 307 of the Act. Prom this notice the applicant appealed to the municipal board under the provisions of Section 61, read with Schedule 2 of the Act; and on 24th August 1935 it was resolved at a meeting of the board that the Chairman--a gentleman named Mr. Khub Chand--should inspect and report. Mr. Khub Chand accordingly went and saw the temple and on 3rd November 1935 he made a report in the following terms:

I suspect that it was not built according to sanction. It is within the compound and meant only for the occupants of the houses therein. No member of the public goes there for worship. No infringement of the building bye-law has been committed as there does not exist any mosque all round within 200 yards of this temple; rather within a greater distance. In my opinion the temple may be retained and shown in the plan. As the construction has been made without permission, I impose a penalty of Rs. 50. Lay before the board.

3. On 20th November 1935, the matter was laid before the board, but as the elections were about to take place, it was adjourned and was referred to the new board. Accordingly on 25th February 1936 the matter came up for consideration before the new board, of which the Chairman was a gentleman named Mr. Fazlur Rahman; but it was again adjourned. It was taken up on 3rd March 1936 and on that date by a resolution of the board a committee was appointed to investigate and report about the matter. The convener of this committee, however, withdrew and the committee had to be re-constituted. The convener of the re-constituted committee was the Rev. S.N. Talibuddin and he made a local inspection and submitted a report, which bears no date. In this report he said:

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