Special Development Area Chitrakut vs Pooranlal

D.P.S. Chauhan. J.

A criminal case No. 228/82 was instituted upon a complaint filed by the Chief Executive Officer, Spcical Area Development Authority. Chitrakut before the Judicial Magistrate Satna, which was registered as Criminal Case No. 528/84 and was dismissed On merit by the Judicial Magistrate First Glass Satna vide the impugned order dated 21-6-1965. Against this order, as required under Sub-section (4) of Section 378 Cr. P.C. the Special Area Development Authority Chitrakoot applied for special leave to appeal to this Court which was granted by this Court in Misc. Criminal Case No. 3199/85 on 17-1986 where upon the present appeal was filed and was admitted by the Additional Registrar of this Court on 5-1-1987.

The complaint was filed by the Chief Executive Officer, Special Area Development Authority Chitrakut. It was a cyclostyled one and in Para 2. it is stated that the accused had constructed a new house on Chitrakoot Pili Rothi Marg without obtaining the permission from the Authority as required Under Sections 16 and 29 of the Madhya Pradesh Nagar Tatha Gramin Nivesh Adhiniyam, 1973 (for brevity hereinafter referred to as the Adhiniyam)and further that he was given notice on 7-7-1981, 24-7-1981, 9-11-1981 for stoppage of the construction work and for producing, necesary papers but the, accused neither stopped, the construction nor took any steps for obtaining the permission,which constituted art offence u/s 36 of the Adhiniyam. The complaint, was in the name of Special Area development Authority, through Chief Executive Officer, Chitrakut Uistt, Satna, M.P.

The complainant examined as many as four witnesses. Dharampal Rajak was examined as PW l. Jayprakash Sharma was examined as PW2. Ramashankar Gautam was examined as PW3, Ravendra Pratap Singh was examined as PW4.

PW 1 is the peon in the said authority and on 9-11-81 he was given a notice for serving the said notice on the respondent but he has stated that the respondent was not available at home and the notice was handed over to his father. PW 2 is the Revenue Inspector and his job was to make inspection of local construction of house and submit report to the higher officers in regard to the spot inspection of the illegal construction. PW3 Ramashankar Guutarn is the officer-in-charge who is concerned with the health department, was posted at the relevant time as Assistant Sanitary Inspector, PW4 Ravendra Pratap Singh is the person who at the relevant time was working on the post of the Chief Executive Officer in the said authority on the relevant dale.

5, The defence was that the Chief Executive Officer permitted construction saying that the sanction would be accorded later on, which was changed subsequently by the respondent. He has stated in his cross-examination that the father of there respondent was the owner of the house which was constructed before the application of the Adhiniyam.

The trial Court dismissed the complaint by recording the finidings that it is not proved that the accused-respondent constructed a house. Secondly, the appellant did not serve the notice on the accused respondent as per the requirement of Section 37 of the Adhiniyam.

Heard she learned counsel for the appellant and the learned counsel for the respondent.

Learned counsel for the appellant made two fold submissions: --

(1) That, in cross-examination, no suggestion was offered to the prosecution witnesses that the construction in "question was not made by the respondent.

(2) Respondent had made an application dated 6-4-82 before the Chief Judicial Magistrate in the complaint which was dismissed, but in that application he did not. say anything about the making of construction.

Complaint was a criminal case and it is a settled position of law that in a criminal case the burden of proof lies on the person who sets up the criminal machinery in motion i.e. on the prosecution, by way of complaint or otherwise, unless the burden of proof is excluded specifically by law. In this view of the matter, the first submission advanced by the learned counsel loses its force. It was for the complainant to have proved beyond reasonable doubt that : (1) the land belonged to the appellant; and (2) that the respondent himself had made construction.

The second submission, as advanced by the learned counsel also has no substance, as the amendment-application or any other application under the law required to contain only such facts which arc relevant for the purpose of the application; and as such, anything mentioned in relation to the defence case in the application would not have any adverse effect on the case set up by the complainant.

Learned counsel for the respondent Shri R.P. Agrawal, former Additional Advocate General, placed before the Court the entire scheme of the Act and submitted that Sections 36 and 37 of the Adhiniyam though have an overriding effect operate in different fields and submitted that Section 36 only provides for penalty in the case of unauthorised development or user of the land otherwise than in conformity with development plan.

Section 36 of the Adhiniyam is as extracted below: --

Penalty for unauthorised development or for use otherwise than in conformity with development plan. --

Any person who, whether at his own instance or at the instance of any other person, commences, undertakes or carries out any development or changes in the use of any land

(a) without permission required under this Act;

(b) in contravention of the permission granted or any conditions subject to which, such permission has been granted;

(c) after the permission for development has been duly revoked; or

(d) in contravention of any permission which has been duly modified, shall, without prejudice to any action that may be taken u/s 37, be punished with simple imprisonment for a term which may extend to six months, or with fine which may extend to two thousand rupees or with both, in the case of a continuing offence with further fine which may extend to two hundred rupees for every day during which the offence continues after conviction for the first commission of the offence.

In this section, the words "without prejudice to any action that may be taken u/s 37", are relevant which indicate that the punishment u/s 36 is independent of punishment u/s 37 of the Act. Apart from this, Sub-section (7) of Section 37 of the Act, which is as extracted below, provides for penalty: --

(7) Any person prosecuted under clause (a) of Sub-section(6) shall, on conviction, be punished with simple imprisonment for a term which may extend to six months or with fine which may extend to two thousand rupees or with both, and in the case of a continuing offence with further fine which may extend to two hundred and fifty rupees for every day during which the offence continues afterconviction for the first commission of the offence.

In this penalty clause, the penalty varies from the penalty provided u/s 36 of the Adhiniyam, as in Section 36, for continuance of offence, there is further fine which may extend to Rs. 2007- forevery day whereas, in sub-section (7) of Section 37, the further fine extends to Rs. 250/- for every day during which the offence continues after conviction for the first commission of the offence. Section 36 of the Adhiniyam does not provide as to who is the competent person to lodge complaint whereas, Section 37 has provided that the Director may, lodge the complaint.

The nature of the allegations in the present case is covered by clause (a) of sub-section (2) of Section 37 and clause (a) of Section 36 including clause (a) of sub-section (1) of Section 37 which says that "in case specified in clause (a) or (c) of Section 36, to restore the land to its condition existing before the side development took place.

Sub-section (2) of Section 37 includes three categories: --

(a) the demolition or alteration of any building or works;

(b) the carrying out on land of any building or other operation; or

(c) the discontinuance of any use of land.

In the present case, none of their offences have been proved by the complainant and in sub-section (6) of Section 37, it is the Director who is authorised to prosecute. In the present case, there is no notice under clause (a) category. Thus, there is no case for prosecution under sub-section (6) of Section 37.

The submission of the learned counsel for the respondent is that the Director is the officer u/s 3(1) of the Act which says that "the State Government shall appoint an officer to be the Director of Town and Country Planning for the State and may appoint one or more officers of the following categories to assist him namely;

(a) Additional Director of Town and Country Planning;

(b) Joint Director of Town and Country Planning;

(c) Deputy Director of Town and Country Planning;

(d) Assistant Director of Town and Country Planning; and

(e) such other categories of officers as may be prescribed.

The Director has been defined u/s 2(h) as under: --

2(h) "Director" means the Director of Town and Country Planning appointed under this Act;

The definition of the Director is not inclusive and as such, Director is the person who is appointed as Director of Town arid Country Planning and shall not include the persons who have been appointed to assist him. Apart from this, Sub-section (2) of Section 3 of the Adhiniyam also makes it clear, which says:--

(2) The Director shall exercise such powers and perform such duties as are conferred or imposed upon him by or under this Act and the officers appointed to assist the Director shall within such areas as the State Government may specify, exercise such powers and perform such duties conferred and imposed on the Director by or under this Act as the State Government may, by special or general order, direct.

Further Sub-section (3) of Section 3 is relevant which says --

The officers appointed to assist the Director shall be subordinate to him and shall work under his guidance, supervision and control.

Thus it becomes clear that Director is an independent entity and the persons who are appointed to assist him cannot come within the category and meaning of the word "Director.

In the present case, the complaint is not by Director and as such, it could not be treated as complaint within the meaning of Section 37 of the Act.

It is not necessary to dilate on the matter any further, in view of the finding recorded by the trial Court that no notice was given. Further, the complaint was not filed by the Director.

In view of the above, the appeal is sans substance and is accordingly rejected. In the facts and circumstances of the case, it is not a case worth awarding costs.