High Court

Legal Reasoning

-1- Cri.Appeal.143.2005IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO. 143 OF 2005The State of Maharashtra, Through Building Inspector, Dhule Municipal Council, Dhule, Dist. Dhule… Appellant(Orig. Complainant)VersusSunil Pandurang Jagtap, Age : 30 years, Occu. : Trade, Resident at Lane No.7, DhuleTaluka and District Dhule.… Respondent(Orig. Accused)…Mr. D. J. Patil, APP for Appellant - StateMr. R. S. Shinde, Advocate for Respondent Sole... CORAM : ABHAY S. WAGHWASE, J.RESERVED ON : 25th APRIL, 2024PRONOUNCED ON : 10th MAY, 2024JUDGMENT : 1.State is questioning the correctness of the judgmentand order passed by Sessions Judge, Dhule in Criminal Appeal No.42 of 1995 arising out of R.C.C. No.419 of 1993.FACTS GIVING RISE TO THE TRIAL ARE AS UNDER2.Respondent Sunil undertook construction of buildingon Parola Road. Visit was made by Building Inspector ofMunicipality and he claims to have noticed unauthorizedconstruction by making encroachment and reported it to Chief -2- Cri.Appeal.143.2005Officer. Therefore, notice was said to be issued under section189(8) of The Maharashtra Municipal Councils, Nagar Panchayatsand Industrial Townships Act, 1965 directing to restore vacantland and remove encroachment within 15 days. In spite of notice,respondent did not comply and after obtaining sanction, BuildingInspector lodged complaint for commission of offence under section52 read with section 43 of Maharashtra Regional and TownPlanning Act, 1966 (for short, “MRTP Act”). After investigation, respondent was charge-sheeted andtried by learned Chief Judicial Magistrate, Dhule vide R.C.C. No.419 of 1993. Matter was contested. Evidence of prosecution anddefence of accused was appreciated and learned Chief JudicialMagistrate by its judgment and order dated 19.08.1995, convictedrespondent for offence under section 52 of MRTP Act andsentenced him to suffer simple imprisonment for one year and topay fine, in default to suffer simple imprisonment for six months.3.Such judgment and order of conviction was questionedby respondent by filing appeal before Sessions Court, Dhule bearingCriminal Appeal No. 42 of 1995. After hearing both sides, learnedAppellate Court vide judgment and order dated 20.09.2003allowed the appeal of respondent and setting aside the convictionand sentence. -3- Cri.Appeal.143.2005 Hence, instant appeal by State.SUBMISSIONSOn behalf of Appellant – State : 4.Learned APP questioned the correctness of judgment ofAppellate Court pointing out that, prosecution was launched forcommission of offence under section 52 of MRTP Act. That, therewas apparent encroachment and unauthorized construction. That,during field visit, Building Inspector verified the encroachment.Chief Officer on getting convinced, issued notice underMunicipalities Act, calling upon respondent to remove theencroachment within stipulated period. However, he failed andtherefore, prosecution was launched, wherein ample evidence wasadduced before Chief Judicial Magistrate. According to learnedAPP, learned trial court appreciated the evidence as well as lawand rightly convicted respondent. That, there was correctappreciation of both evidence as well as legal position. That, therewas no reason to interfere. However, according to him, AppellateCourt erred in interfering and allowing the appeal. Therefore, heprays to re-appreciate the evidence and to restore the judgmentand order passed by learned Chief Judicial Magistrate by settingaside judgment and order passed by the Appellate Court. -4- Cri.Appeal.143.2005On behalf of Respondent :5.Supporting the judgment of Appellate Court, learnedcounsel for respondent pointed out that, apparently prosecutionlaunched itself was illegal. That, there was no proper service ofnotice. That, notice dated 16.03.1992 is shown to be issued undersection 189(8) of Municipalities Act 1965, which is a code in itselfand in said act itself, by virtue of section 189(9) mechanism to dealwith contingency of non-obedience with regard to issue undersection 189(8) is already provided. 6.He further pointed out that, on the date of complaint,there was no sanction. Post facto sanction is impermissible. That,for invoking section 52 of MRTP Act, distinct procedure iscontemplated. According to him, learned Appellate Court rightlyheld that prosecution had failed to establish its case beyondreasonable doubt. That, moreover, prosecution evidence itselfsuggested that, there was no encroachment or illegal activity.Respondent being wrongly charged, he prays to confirm theAppellate Court’s Judgment and uphold it by dismissing theappeal. -5- Cri.Appeal.143.20057.Consequently the gist of prosecution case in trial courtwas that, accused unauthorizely erected illegal construction overland belonging to Municipal Council. In spite of being called uponby way of legal notice to remove the encroachment, he failed andtherefore, after sanction, he was prosecuted for commission ofoffence under section 52 of MRTP Act. 8.In support of above case, prosecuted seems to haveadduced evidence of PW1 Pandharinath complainant, a BuildingInspector; PW2 Jafar Ahmad, Peon officiating in Municipality, whohas served notice to accused; PW3 Dilip, Private Contractor; PW4Chagan Wagh, Contractor engaged by accused; PW5 one RameshMawasi, Chief Officer; PW6 Ramnath, the then Chief Officer;9.Learned Chief Judicial Magistrate, who conduced trial,and who appreciated above evidence, discussed the evidence ofPW1 Pandharinath, Building Inspector on the point of visit,noticing encroaching, reporting it to the Chief Officer and issuingnotice (Exh.15) to stop and remove illegal construction. Learnedtrial court also appreciated the evidence of PW6 Ramnath, ChiefOfficer and held that, both these witnesses are lending support toeach other regarding unauthorized construction, issuance of legalnotice and in spite of it, accused failed to comply and remove illegalconstruction and hence the action. -6- Cri.Appeal.143.200510.Relying on the evidence of PW3 Dilip, PW4 Chagan andPW5 Ramesh, learned trial court reached to a finding that theirtestimonies have remained unshaken and consequently held thecharges proved. Learned trial court has also discussed andanalyzed evidence of PW1 Pandharinath and held sanction to bevalid. As Appellate Court overturned the judgment of learnedChief Judicial Magistrate, State has come up by way of instantappeal.11.Section 52 of MRTP Act deals with Penalty forunauthorised development or for use otherwise than in conformitywith Development plan. It reads thus: “52. Penalty for unauthorised development or for use otherwise thanin conformity with Development plan(1) Any person who, whether at his own instance or at the instance ofany other person commences, undertakes or carries out development orinstitutes, or changes the use of any land —(a) without permission required under this Act ; or(b) which is not in accordance with any permission granted or incontravention of any condition subject to which such permission hasbeen granted ;(c) after the permission for development has been duly revoked ; or -7- Cri.Appeal.143.2005(d) in contravention of any permission which has been duly modified,shall, on conviction, 1[be punished with imprisonment for a term 2[whichshall not be less than one month but which may extend to three years andwith fine which shall not be less than two thousand rupees but which mayextend to five thousand rupees, and in the case of a continuing offence witha further daily fine which may extend to two hundred rupees]] for every dayduring which the offence continues after conviction for the firstcommission of the offence.(2) Any person who continues to use or allows the use of any landor building in contravention of the provisions of a Development planwithout being allowed to do so under section 45 or 47, or where thecontinuance of such use has been allowed under that section continues suchuse after the period for which the use has been allowed or withoutcomplying with the terms and conditions under which the continuance ofsuch use is allowed, shall on conviction be punished 3[with fine which mayextend to five thousand rupees]; and in the case of a continuing offence,with a further fine which may extend to one hundred rupees for every dayduring which such offence continues after conviction for the firstcommission of the offence.”12.Here, section 52 provides for penalty for unauthoriseddevelopment or for use otherwise therein conformity withdevelopment. It is noticed that in trial Court development plan hasnot been placed on record to demonstrate that there wasconstruction, which was not in conformity with the said map.Secondly, section 152 of MRTP Act provides powers to thePlanning Authority or Development Authority for the purpose ofinvoking provisions under sections 25, 43 to 46, 49, 51 to 53 ofMRTP Act (i.e. including section 52 of MRTP Act) and othersections for revocation or modification or permission to carryoutdevelopment. -8- Cri.Appeal.143.2005 We are concerned herewith sections 51 and 52 of MRTPAct, which deals with powers of Planning Authority to revoke andmodify orders as are necessary. Section 152(3) empowers ChiefOfficer of the Municipal Council to exercise powers. Here,admittedly there is no complaint at the behest of PW6 Chief Officer,who is in fact authorized by the statute to lodge complaint. Ratherhere complaint is on behalf of a Building Inspector (PW1Pandharinath). 13.It is also noticed that, prior sanction is necessarybefore launching prosecution under section 52 of MRTP Act.Sanction accorded vide Exh.32 is of 03.04.1993. However,complaint at the instance of PW1 Pandharinath is already of18.06.1992 vide Exh.20. Resultantly, such material shows that,prior to seeking sanction, complaint has been already lodged andthat to be not by Chief Officer, but at the hands of BuildingInspector. This is not permissible.14.The Act also provides for issuance of notice prior toproposed action. Here, on re-appreciation of PW1 Pandharinath, itis noticed that, and he too has admitted that, service is effected onrespondent on 16.09.1992, whereas complaint is of 18.06.1992. -9- Cri.Appeal.143.2005Above material shows that there is no prior notice as is required.15.On re-appreciating of the evidence, it is also emergingthat, Exh.14 shows that, respondent has succeeded in gettingpermission for minor construction way back on 12.09.1991 itself.Prosecution could not establish that construction was carried outbeyond said permission or in contravention as there are no distinctdocuments including development plan. Further, above all, allegedconstruction is in the name of Dilip Umrao Jagtap and not presentrespondent Sunil Pandurang Jagtap. Therefore, on such count alsoprosecution case cannot stand.16.To sum up, firstly, there is no complaint by Chief Officerto whom statute empowers to file complaint, rather it is by BuildingInspector. Secondly, prior to mandatory notice, complaint is shownto be lodged. In trial Court, prosecuting authority could notdemonstrate that, alleged construction was at the instance ofparticularly respondent and it was in contravention to anydevelopment plan. 17.For all above reasons, learned appellate court seems tohave correctly re-appreciated the available evidence and hasrightly intervened to set aside the trial court’s order. No case -10- Cri.Appeal.143.2005being made on merit, appeal is required to be dismissed. Hence,the following order :- ORDERThe Criminal Appeal stands dismissed (ABHAY S. WAGHWASE, J.) Tandale