State of Uttar Pradesh vs Naidar Singh

M. Hidayatullah, J.—This case has had a chequered history. It arose from a prosecution u/s 13(1) UP Roadside Land Control Act 1945 against the present Respondent for having constructed a building within the controlled area of Delhi-Mussorie Road in mile 43 Furlong 2 (right side) without obtaining previous permission of the authorities. The accused pleaded not guilty. In his written statement, the accused stated that he had raised a wall running parallel to the Meerut-Roorkee Road enclosing his land before 1-7-1952 or 26-12-1953 when a notification prohibiting construction under that section is said to have been issued. The prosecution examined a number of witnesses and proved that previously there was a construction 46 feet in length but later this construction was extended to about 250 feet and this was in 1960. It is not necessary to go into the details of the case, because of its subsequent history. The Magistrate gave a finding; that the construction was new and offended the notification prohibiting such a construction issued under the Act. The Respondent was fined Rs. 200/- in default, he was ordered to undergo rigorous imprisonment for one month. This fin ding was confirmed by the Sessions Judge. The Respondent then filed a revision in the High Court and there the question was raised as to whether the provisions of Section 3 of the Act had been complied with or not. The section requires that when any controlled area is declared, the State Government may by notification in the Official Gazette declare any land within a distance of 440 yards from the centre line of any road to be controlled area for the purposes of the Act. Sub-section (2) of Section 3, however, lays down that not less than three months before making a declaration under Sub-section (1) the State Government shall cause to be published in the Official Gazette and in at least two newspapers printed in a language other than English a notification stating that they propose to make such a declaration and specifying therein the boundaries of the land in respect of which the declaration is proposed to be made. The copies of such declaration are also required under the sub-section to be published by the Collector in such manner as he thinks fit at his office and at such other places as he considers necessary. In the High Court the question was raised whether a publication in the newspapers had taken place as required by law. The High Court did not go into the merits of the case but ordered a remand of the appeal after setting aside the order of the Sessions Jude, directing that the appeal be heard after recording additional evidence in accordance with law. In the order passed by the High Court it was indicated that the Act required publication of the notification in two "local newspapers" in a language other than English. The learned Judge in the High Court observed that proof of this could have been given by filing copies of newspapers or by filing affidavits of persons who were subscribing to the newspapers.

After remand, evidence was taken; but the Sessions Judge went again into the question of fact as to whether the constructions were old or new. He re-weighed the evidence and came to the conclusion that these constructions were made prior to the passing of the Act and therefore were not affected by the notification. In fact he placed these constructions in the year 1942 or 1943. He therefore ordered the acquittal of the Respondent. In addition to decision on the above lines he gave a finding that the publication of the notification in "Pratap" and "Hindustan" of Delhi was not publication in local newspapers.

When the matter was taken in revision again to the High Court, the learned single Judge (whose judgment is impugned before us) decided only the first question. According to him the finding of fact clearly indicated that the constructions were old and therefore the Act and the notification did not apply and no offence was disclosed. He declined to consider the question whether there was publication in the local newspapers or not.

In this appeal by special leave we were invited to consider the question of publication in the local newspapers. We have been unable to find any provision either in the Act or the Rules which requires that the publication should be in "local newspapers". No such provision was also brought to our notice. In fact in the case of a long highway it would be very difficult to find out which would be regarded as a local newspaper, because the road may run through several towns in which newspapers are published. In our opinion, the matter has perhaps been left at large and the question is one of convenience and publicity. That publication would be considered sufficient which may be regarded as best suited to subserve the purpose of informing the persons affected by the notification.

As the High Court has not decided this point and has rested its order on the finding of fact, we find it difficult to interfere. It may be that the learned Sessions Judge on the second occasion need not have reconsidered the evidence and should have gone by the finding already reached. But we find from the record that the judgment of the Sessions Judge on the first occasion was set aside by the High Court and the matter was left at large for a fresh decision in the light of the additional evidence taken. We are not quite happy with the finding given in this case, because we think that the Sessions Judge was carried away by the burden of proof, although the evidence itself was perhaps not indicative clearly of the fact that the buildings were constructed in 1942 or 1943. As we read the record, they seem to us to be new constructions. Even so, we do not think that we can enter into this question, because the Sessions Judge has believed the defence evidence and on its basis given the finding that the buildings were old and prior to the notification. This finding has not been interfered with by the High Court and we think it is too late now for us to reagitate the question of fact to decide in this appeal whether the buildings were old or new. We accordingly do not accept the appeal and it will be dismissed.