Sulaiman, J.@mdashThis is a reference u/s 438 of the Criminal Procedure Code by the District Magistrate of Meerut. It appears that while Baraut
was a notified area, Juggan accused applied to the Notified Area Committee for permission to build a wall. On the 9th of January 1921 the
Committee by a resolution ordered that a space of 9 1/2 feet should be left between the wall and an adjoining drain. On objections having been
raised by the accused and a report having been sailed for, the Committee by a second resolution, dated the 16th February 1921, modified its
previous order and reduced the width of the open space from 9 1/2 feet to 5 feet. The accused, however, built the wall without leaving the
required space of 5 feet. The Notified Area Committee accordingly on the 26th of March 1921 issued a notice to him to remove the wall within
fifteen days. After this, the notified area was converted into a Municipality with effect from the 1st of April 1921. The accused replied to the notice,
saying that the land was his own and intimated that he Would institute a suit in a Civil Court. On the 15th of April 1921 the Tahsildar, purporting to
act u/s 333 of the Municipalities Act, II of 1916, as the officer in charge, Municipal work, sanctioned prosecution u/s 185 of the Municipalities
Act.
2. The learned Magistrate did not accept the Committee''s case that a public right of way existed over the land which was to be left open on the
other hand, he found that the land did not belong to the Committee at all, but was the private property of the accused and, in fact, considered that
the order of the Committee was not justifiable. He, however, convicted the accused as, in his opinion, he had contravened the order of the
Committee, and sentenced him to pay a fire of Re. 20.
3. On the 15th of April 1921 the Notified Area Committee had ceased to exist and the Municipality had some into existence, but there is nothing
on the record to show that this was so.
4. In my opinion this reference must be accepted and the conviction set aside. There is in fast, no evidence to show that the Tahsildar had been
empowered u/s 333 of Act II of 1916 to exercise the powers of the Board. But assuming that he had such powers, in my opinion, he would have
no authority u/s 333 of Act II of 1916 to sanction a prosecution. Under that station his powers are limited and he can exercise them only (1) for
the purpose of tasking preliminary arrangements for the holding of first elections or otherwise, and (2) generally of expediting the assumption by the
Board of if a duties when established. It is quite clear that sanctioning a prosecution is neither for the purpose of making preliminary arrangements
for the holding of first elections, nor is it any step towards expediting the assumption by the Board of its duties when established. Section 333 of
the Municipalities Act, II of 1910, therefore, gave him no such power. u/s 314 of that Act it is provided that no Court shall take cognizance of any
of the offences punishable under this Act or under any rule or bye-law, except on the complaint of, or upon information receive from, the Board or
some person authorised by the Board by general or special order in this behalf."" It, there fore, follows that without a proper sanction the conviction
was illegal, The irregularity in the sanction, as required by Section 314 of the Act, cannot be cured by the provisions of Section 537 of the Code of
Criminal Procedure, which are not applicable to the sanction under this section.
5. There are other legal objections also, for instance, (1) that the order of the Committee requiring the appellant to leave a space of 5 feet was in
itself illegal, inasmuch as the previous resolution had been passed within six months of it and the Committee could not modify its own resolution
within that period, and (2) that there is nothing on the record to show that there are any regulations under which the Board is empowered to
prohibit the erection of a wall on private land and not abutting on a public street. In the view which I have taken as to the want of a proper sanction
it is unnecessary for me to go into these other questions.
6. I accordingly accept this reference, set aside the conviction and sentence and direct that the fine, if paid, be refunded.