Shambhu Nath Sharma vs State Of Uttarakhand & Another

Sharad Kumar Sharma, J

This is a revision, which has been preferred by the revisionist, wherein, he has questioned the judgment of affirming the conviction, i.e. dated 30.04.2011 as rendered by the Court of Additional District Judge/II FTC Haridwar, in Criminal Appeal No. 42 of 2009 'Shambhu Nath Sharma vs. State & Another', which was arising out of the challenge given to the order of conviction dated 25.07.2009, which was passed by the Court of Chief Judicial Magistrate on Complaint Case No. 3958 of 2003 'Haridwar Development Authority vs. Shambhu Nath Sharma' as registered against the revisionist for the alleged violation of the provisions contained under Sections 14, 26(1) and 28(4) of the U.P. Urban Planning and Development Act, 1973.

By virtue of the orders impugned under challenge, the learned Court of Chief Judicial Magistrate by the impugned order dated 25.07.2009 had directed that the prosecution has been able to establish the case against the revisionist for commission of the offence alleged by under the aforesaid sections of the U.P. Urban Planning and Development Act, 1973, and the allegation of the prosecution was to the effect that the construction was being raised by the revisionist without getting an appropriate prior sanction granted in his favour under Section 14 of the U.P. Urban Planning and Development Act, 1973. Consequently, the Court proceeded to convict the revisionist for the aforesaid offences, thereby, imposing a penalty of Rs. 20,000/-and a simple imprisonment of a period of two months was imposed upon him by the impugned order rendered in Complaint Case No. 3958 of 2003 'Haridwar Development Authority vs. Shambhu Nath Sharma'.

Being aggrieved against the said order of conviction, a Criminal Appeal, which has been referred above, was preferred by the revisionist and the appellate court of Additional District Judge/II FTC, Haridwar, in Criminal Appeal No. 42 of 2009 'Shambhu Nath Sharma vs. State & Another' has dismissed the Appeal on 30.04.2011 and as a consequence thereto, the appellate court has affirmed the judgment of the learned Trial Court dated 25.07.2009.

The revision initially when it was preferred and argued for admission before this Court, it has been admitted by this Court after hearing the counsel for the development authority, the complainant and the lower court record were summoned. The Criminal Revision was listed on couple occasions earlier but none has appeared on behalf of the complainant/respondent. Today the matter is listed for its final disposal. Even today none appears for respondent even in the revised call and accordingly the Court has proceeded to consider the case on its own merits, particularly, the implications of law, which requires a determination under the circumstances of the present case and the prime question for consideration before this Court would be:

(i) As to whether the so called offences under Sections 14, 26(1) and 28(1) of the U.P. Urban Planning and Development Act, 1973, and its violation will call for drawing a proceeding by the prosecution by attracting the procedure of Cr.P.C.

(ii) Whether the so called offences under Sections 14, 26(1) and 28(1) could be given a blend or a colour of criminal prosecution at the behest of the respondent because none of the provisions referred above provide for commission of offence, and sentencing under the criminal law.

Before venturing further it becomes essential to determine as to the source under which the laws of urban planning is governed, under the constitutional mandate, under consideration. Schedule XII Entry 1 & 2 is quoted hereunder:

"1. Urban planning including town planning.

Regulation of land use and construction of buildings."

Provides for formulating laws regulating the urban development, which is a self contained Act of 1973.

It provides for that the urban development and urban development as has been made as a State subject, in accordance with attraction of XIIth Schedule of the Constitution, which has been held to be mandated under Article 243 (w), wherein, as per entry 1 & 2 it regulates the land use and the construction of the buildings in a developed area as defined under the U.P. Urban Planning and Development Act, 1973. Section 2 (f) of the U.P. Urban Planning and Development Act, 1973, is quoted hereunder:

"2(f) "development area" means any area declared to be a development area under Section 3."

Thus, as per the provision of Article 243 W, it's the Municipalities or other local body, which has been vested with power to regulate the aspect of urban development in a district of a State.

Section 14 of the U.P. Urban Planning and Development Act, 1973, which defines as to what the development of the land means in a developed area as notified under the Act. It provides under its sub-section (2), that for the purposes of making development in the developed area as notified under Section 3 of the Act of 1973, there has had to be an application by way of seeking a permission referred to in Section 14 by filing an application under Section 15 of the Act for getting the requisite sanction for raising the construction in a developed area. It would be apt to observe at this stage itself that Section 14 of the Act, the said provision in itself does not contemplate any criminal prosecution of any person, who is leveled with the allegation of violating the terms of Section 14 of the Act because Section 14, itself is only procedural in nature, which does not have any criminal element of conviction for its alleged violation, which calls for laying a mandate to the effect that the person, who intends to make a construction in a developed area has to apply for sanction of the construction map and that has to be processed by the development authority in accordance with the bylaws. Thus, when the principal provisions of Section 14 itself does not contemplate any criminal prosecution for its violation as it not mandated under provision of Section 14 itself, no cognizance could have been taken for the alleged violence of Section 14 of the U.P. Urban Planning and Development Act, 1973. Section 14 of the U.P. Urban Planning and Development Act, 1973, is quoted hereunder:

"14. Development of land In the developed area.-

(1) After the declaration of any area as development area under Section 3, no development of -land shall be undertaken or carried out or continued in that area by any person or body (including a department of Government)- unless permission for such development has been obtained in writing from the [Vice-Chairman) in accordance with the provision of this Act.

(2) After the coming into operation of any of the plans in any development area no development shall be undertaken or carried out or continued in that area unless such- development is also in accordance, with such plans.

(3) Notwithstanding anything contained In Sub-sections (1) and (2), the following provisions shall apply in relation-to development of land by any department of any State Government or the Central Government or any local authority-

(a) when any such department or local authority intends to carry out any development of land it shall inform the (Vice Chairman] in writing of its intention to do so -giving full, particulars thereof, including any plans and documents, at least 30 days before undertaking such development;

(b) in the case of a department of any State Government or the Central Government, if the (Vice-Chairman) has no objections it should inform such department of the same within three weeks from the date of receipt by it under Clause (a) of the department's intention, and if the Vice-Chairman does'not make any objection within the said period the department shall be free to carry out the proposed development;

(c) where the C 4[Vice-Chairman) raises any objection to the proposed development on the ground that the development is not conformity with any Master Plan or Zonal Development Plan prepared or intended to be prepared by it, or on any other ground, such department or the local authority, as the case be, shall-

(i) either make necessary modifications in the proposal development to meet the objections raised by the 5[Vice-Chairman] or

(ii) submit the proposals for development together with the objections raised by the [Vice-Chairman] to the State Government for decision under Clause (d)

(d) the State Government, on receipt of proposals for development together with the objections of the 2[Vice-Chairman) may either approve the proposals with or without modifications or direct the department or the local authority, as the case may be, to make such modification as proposed by the Government and the decision of the State Government shall he final:

(e) the development of any land begun by any such department or subject to the provisions of Section 59 by any such local authority before the declaration referred to in Sub-section (1) may be completed by that department or local authority with compliance with the requirement of Sub-sections (1) and (2)."

There is yet another set of provision on which the action has been taken by, and the prosecution has commenced as against the present revisionist that is in purported violation of Section 26(1) of the Act of 1973. Section 26(1) of the Act reads as under:

"26. Penalties.-

(1) Any person who whether at his own instance or at the instance of any other person or any body (including a department of Government) undertakes or carries out development of any land, in contravention of the Master Plan or Zonal Development Plan or without the permission, approval or sanction referred to in Section 14 or in contravention of any condition subject to which such permission approval or sanction has been granted shall be punishable with fine which may extend to [Fifty thousand] rupees, and in the case of a continuing offence, with further fine which may extend to 2[Two thousand five hundred] rupees for every day during which such offence continues after conviction for the first commission of the offence."

Section 26(1) provides that for taking an action by way of stopping the construction, which is being carried without a prior sanction under Section 14 of the Act, and in case if despite of the direction for stoppage of the development if still it is proceeded with, in that eventuality, sub-section (1) of Section 26 only contemplates for imposition of penalty, as given thereunder, which has been incorporated by substitution made under the Act by Act of 1973.

At this stage itself, it would be relevant to point out that sub-section (1) of Section 26 yet again is not having any element of criminal prosecution by way of inflicting punishment by way of confinement or imprisonment for violation of the provisions contained under sub-section (1) of Section 26. As far as sub-section (2) of Section 26 is concerned, we are not concerned with it in the instant case for the reason being that it also only deals with the provision for imposition of penalty for commission of an offence of the provisions contained under Section 16, which is not the case at hand in the present Criminal Revision. Hence, this Court is not dealing with the said aspect at this juncture. Only on the comparative scrutiny with regards to the scope of criminal prosecution, which if at all could be extended, it could be extended only under those eventualities where there happens to be an offence committed under sub-section (3) of Section 26 of the Act, which is the only provision under Section 26, which provides for imposition of the punishment of imprisonment and simultaneously a fine also, but what is important under sub-section (3) of Section 26 is that it is a provision contemplating sentencing of a person to undergo an imprisonment or to impose a fine as contemplated therein is only under those circumstances where the accused person, who is an occupant of a premises obstructs any authority from entering into a building or molest an authority, then only this action of creating an obstruction has been made, a cognizable offence by inflicting of punishment of imprisonment for maximum period of six months and a fine too could be imposed. In order to elucidate the above reference to Section 26(3) becomes necessary. Section 26(3) of the Act is quoted hereunder:

"26 Penalties- (3) Any person who obstructs the entry of a person authorised under Section 25 to enter into or upon any land or building or molests such person after such entry shall be punishable with imprisonment for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both."

Logically if these circumstances as interpreted above it could be said that the legislature at the time when it was incorporating Section 26 in the statute and was being conscious of the aspect of determining the sentence to be imposed on the person for violation of the provisions of Section 26 of the Act, the legislature by its deliberate intent had only incorporate a provision for sentencing an accused person with imprisonment, for the offences as contemplated under sub-section (3) of Section 26 of the Act, which is not the case at hand as per the prosecution story. Thus, this Court is of the view that Section 26(3) would not apply nor the same has been made applicable by the respondents in the instant case of the revisionist.

The other rationale behind this interpretation is that when the legislature specifically under sub-section (3) of Section 26 has provided for infliction of imprisonment for the period of upper limit of sentence providing therein it had by way of a deliberate intention and implications has not incorporated any period of sentence for which the accused person is required to undergo an imprisonment for violation of the prosecution contained under sub-section (1) of Section

Thus, it could be said that conspicuous by its absence no sentence was intended by legislature for so called offence under Section 26(1) unlike that for act under Section 26(3).

Hence, this Court is of the view that the provision contained under sub-section (1) of Section 14, does not contemplate or provide for any criminal prosecution because it is not providing for an arrest of a person nor does it provide for the infliction of sentence for a particular sentence period or the upper limit for which a person can be placed under confinement. Hence, the Court is of the view that Section 14 or Section 26(1) is not intending a criminal prosecution of a person.

Similar is the situation under Section 28 of the Act. The prosecution has initiated the proceedings as against the revisionist for the alleged violation of provisions contained under Section 28 (1), which yet again has its genesis from the provisions contained under Section 14 of the Act. This provision of sub-section (1) of Section 28 yet again has to be determined under the same logic and manner in which the implications of Section 26 has been considered by this Court and recorded its reasoning. Because under Section 28 yet again under sub-section (1) has not contemplated any criminal prosecution. The criminal prosecution under Section 28 is only contemplated under sub-section (4) of Section 28, which provides for a punishment by way of infliction of penalty and for confinement under the Act. Section 28(1) and 28(4) are quoted hereunder:

"28 Power to stop development;-

(1) Where any development in a development area has been commenced or continued in contravention of the Master Plan or Zonal Development Plan or without the permission, approval or sanction referred to in Section 14 or In contravention of any conditions subject to which such permission, approval or sanction has been granted, then, without prejudice to the provisions of Sections 26 and 27, the Vice Chairman of the Authority or any officer of the Authority empowered by him in that behalf may make an order requiring the development to be discontinued on and from the date of the service of the order, and such order shall be complied with accordingly.

Any person failing to comply with an order under Sub-section (1) shall be punishable with fine which may extend to two hundred rupees, for every day during which the non-compliance continues after the service of the order."

The aforesaid provision too, like Section 26(1), has its action contemplated under Section 28(1) to be read with Section 14 of the Act, which does not provide for or contemplate any criminal prosecution under the criminal law. Particularly under the Act of 1973, which is included in the 12th Schedule of the Constitution is a special civil statute and it does not provide for or intend for criminal prosecution for any civil dispute contemplated under the Act of 1973.

There is another argument of the learned counsel for the revisionist, it is from the view point that if the provisions of Section 26(1) and Section 28(1), which if read together in the light of the provisions, which is contained under Section 31 of the Act, which is quoted hereunder, which is to be read with U.P. Urban Planning and Development Act, 1973:

"31. Fines when realized to be paid to the Authority.-

All fines realised in connection with prosecutions under this Act shall be paid to the Authority."

When Section 26(1) and 28(1) it only provides for imposition of penalty, which would be payable for violation of aforesaid provisions it is to the authority that means the Development Authority only as defined and constituted under the Act of 1973. The Act further provides that under the provisions of the Act, which provides for infliction of punishment by way of imposing a penalty that has to be recovered as arrears of land revenue under Section 40 of the Act, which is quoted hereunder:

"40. Recovery of money due to Authority- Any money due to an Authority on account of any fee; or chares, or from disposal of land, building or any other property, movable or immovable, by way of rent, premium, profit or hire-purchase installment, may, without prejudice to the right of recovery by any other mode of recovery provided by or under this Act or any other law for the time being in force, be realized-

(a) either, as arrears of land revenue upon a certificate of the amount due sent by the Authority to the Collector, or

(b) by attachment and sale of property in the manner provided in Sections 504, 505, 506, 507, 508, 509, 510, 512, 513 and 514 of the Uttar Pradesh the said Adhiniyam shall mutatis mutandies apply to recovery of dues of an Authority as they apply to recovery of a tax due to a Nagar 'Maha Adhiniyam to 'Mukhya Nagar Adhikari', 'Mahapalika' and 'Executive Committee' shall be construed as references to 'Vice - Chairman', 'Development Authority' and 'Chairman' respectively.

Provided that no two or more modes of recovery shall be commenced or continued simultaneously."

This Court if of confirmed opinion that when the principal section only contemplates a provision for infliction of punishment of penalty for violation of provisions of the Act, and the penalty itself is to be recovered in accordance with the provisions contained under Section 40 of the Act as arrears of the land revenue. The offence as alleged under Section 26(1) or Section 28(1), takes the shape of civil offence and it cannot be coloured with a criminal prosecution as contemplated to be drawn by the respondent by directing the provisions contained under Section 14 to be read with Section 26(1) and Section 28(1) by drawing a prosecution against the revisionist under provisions of Criminal Procedure Code, which will definitely not be applicable, for the reasons assigned above as no criminal prosecution is provided under Sections 14, 26(1) or Section 28(1) of the Act of 1973.

Learned counsel for the revisionist has further submitted that the action taken by the prosecution by initiating the proceedings by way of registration of a Complaint Case No. 3958 of 2003 'Haridwar Development Authority vs. Shambhu Nath Sharma', before the Court of Chief Judicial Magistrate, that in itself, cannot be permitted to be carried in the absence of there being a prior sanction granted under Section 49 of the U.P. Urban Planning and Development Act, 1973, which provides for that if under any of the provisions of the Act of 1973, which is quoted hereunder, if it provides for a criminal prosecution, which entails an imprisonment of a person provided under the term of the Act itself, in that eventuality, before taking of an action of placing a person under confinement, in that eventuality, there has had to be a prior permission as contemplated under Section 49 of the Act and if there is no such prior sanction granted under Section 49 of the Act, the entire prosecution has to fail and would be vitiated under law:

"49. Sanction of prosecution.-

No prosecution for any offence punishable under this Act shall be instituted except with the sanction of the Vice-Chairman of the Authority or any officer authorised by him in that behalf."

After having gone through the detailed scrutiny and analysis about the so called offence, which has been alleged in the complaint case for commission of an offence under Sections 14, 26(1) and 28(1) against the revisionist, after reading it harmoniously with the provisions contained under Sections 31, 40 and 49, this Court is of a confirmed opinion that the prosecution cannot give colour to the offence under the aforesaid section as to be having anyy criminal element in it, which could call for initiation of the complaint before the Criminal Court and prosecuting the case before Criminal Court, against whom the complaint has been registered.

The another logic behind it is that the aforesaid provisions cannot be given a blend of criminal nature or cannot be nomenclature as to be the criminal offence for being tried under the offence as per the procedure provided under the Code of Criminal Procedure, for the reason that the provision in itself, i.e. Sections 14, 26(1) and 28(1) does not contemplate or provide for any specified period of which a person could be placed under confinement under the concept of violation of the aforesaid sections, no prosecution can be drawn on criminal side against the accused person against whom the prosecution has started under the said provisions in the absence of legislature laying down the upper limit of sentence for imprisonment.

The rationale behind it is that if a person has to be confined in imprisonment by attracting a provision of statutory penal law then it has had to be provided with also the maximum period of sentence, which a person is required to undergo for the alleged commission of an offence under the aforesaid provisions providing for the maximum period of sentence becomes necessary to be determined by the legislature itself for the reason that the determination of the period of sentence, which the person is supposedly to undergo cannot be left at the wisdom of determination of the criminal courts because that will increase the element of arbitrariness and without there being any justification and determination of the time period for which the so called accused person has to go sentence and for the so called commission of offence under Sections 14, 26(1) and 28(1).

Consequently, this Court is of the view that since the statute itself, which is special in nature, if it has not provided for an imprisonment under the provisions under which the complaint has been registered, the said offence if at all contemplated it has to be within the ambit of punishment, which is contained under the said provisions, i.e. by way of imposing a penalty only and there cannot be any order for imprisonment as directed by the impugned orders under challenge in the present revision.

Consequently, the revision is allowed. The impugned orders of conviction are quashed.