Himachal Pradesh High Court
Babu Lal Sood vs Cantonment Board on 31 May, 2017
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. MMO No.122 of 2009.
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Judgment reserved on : 24.05.2017.
Date of decision: May , 2017.
Babu Lal Sood .....Petitioner.
Versus
Cantonment Board ..... Respondent.
Coram
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
Whether approved for reporting?1 No For the Petitioner : Mr.Bimal Gupta, Sr. Advocate with Mr.Vineet Vashisht, Advocate.
For the Respondent : Mr.Ashok Sharma, ASGI with Ms.Sukarma, Advocate.
Tarlok Singh Chauhan, Judge.
This petition under Article 227 of the Constitution of India read with Sections 397 and 401 of the Code of Criminal Procedure takes exception to the judgment passed by the learned Sessions Judge, Solan, on 07.08.2009, whereby he affirmed the judgment passed by the learned Chief Judicial Magistrate, Solan, on 08.04.2009, holding the petitioner Whether the reporters of the local papers may be allowed to see the Judgment? yes ::: Downloaded on - 02/06/2017 00:00:53 :::HCHP 2 guilty for committing offence punishable under Section 184 of the Cantonments Act, for illegally constructing/erecting toilets/bathrooms on .
the ground floor of Bungalow No.35 and accordingly sentenced to pay fine of Rs.5,000/- alongwith costs of sealing of illegal construction and its demolition.
2. The brief facts are that the complainant/respondent is a Board constituted under the Cantonments Act, 1924 (for short the 'Act') and filed a complaint against the petitioner through its Junior Engineer Shri Manoj Kumar seeking his prosecution under Section 184 of the Act.
3. The case set up by the complainant was that the petitioner was in occupation of Bungalow No.35, comprising GLR Sy. No.35, situated in Charring Cross, Dagshai Cantonment Area, Tehsil and District Solan (for short 'Premises') The said property was situated in the Cantonment Area and held on old grant term by one late Sardar Gurdial Singh Sandhu and placed under the management of Defence Estate Officer, Ambala Cantt.
and was governed by the terms and conditions and rules of the Act and regulations framed under the Act. It was averred that no person in the Cantonment Area has any right to make any addition, alteration, erection/re-erection in any premises without the prior permission or sanction of the Cantonment Board. The petitioner had started ::: Downloaded on - 02/06/2017 00:00:53 :::HCHP 3 unauthorized erection of four sets of toilets and four sets of bathrooms at the ground floor of the premises in dispute on 6th August, 2004. This .
unauthorized act was noticed by Sanitary Inspector Shri Mahesh Swaroop during the course of his routine inspection and was reported to CEO, Dagshai, who in turn sought report from Junior Engineer. On inspection, it was found that the petitioner had unauthorizedly constructed the toilets and bath rooms without having issued a valid notice or application under Section 179 of the Act. It was further averred that the petitioner had carried out the above erection of toilets/bath rooms, without prior consent of the Cantonment Board and without getting any building plan/site plan sanctioned, such erection/re-erection was in gross violation of Section 184 of the Act and thereby the petitioner had committed the offence punishable under the said section.
4. Since the complaint was filed by a public servant in his official capacity, formal examination of the complainant under Section 200 Cr.P.C. was dispensed with.
5. On appearance and after admitting the petitioner on bail, he was put to notice of accusation for the commission of offence punishable under Section 184 of the Act to which he pleaded not guilty and claimed trial.
::: Downloaded on - 02/06/2017 00:00:53 :::HCHP 46. In order to prove its case, the Cantonment examined two witnesses and after closure of the evidence, statement of the petitioner .
under Section 313 Cr.P.C. was recorded in which the petitioner denied the case of the Cantonment, but did not lead any defence evidence.
7. As observed earlier, the learned trial Court sentenced the petitioner for committing the offence under Section 184 of the Act which sentence was upheld by the learned Sessions Judge in an appeal filed before it by the petitioner.
8. Feeling aggrieved by the judgments rendered by the learned Courts below, the petitioner has filed the instant petition mainly on the ground that in absence of original map, the learned Courts below could not have recorded the findings of guilty of the petitioner. It is further contended that these findings are otherwise perverse and, therefore, deserve to be set aside.
I have heard the learned counsel for the parties and gone through the records.
9. To prove its case, the Cantonment examined Shri Manoj Kumar, Junior Engineer, as CW-1, whereas, Shri Mahesh Swaroop, Sanitary Inspector, was examined as CW-2.
::: Downloaded on - 02/06/2017 00:00:53 :::HCHP 510. As regards CW-1, he had stated that the petitioner had illegally erected the aforesaid toilets/bathrooms on the ground floor of .
Bungalow No.35 and had relied upon the report submitted by CW-2 Shri Mahesh Swaroop, Sanitary Inspector, dated 06.08.2004 Ex.CW1/C and his own report dated 07.08.2004 Ex.CW1/D. Whereas, while appearing as CW-2 Shri Mahesh Swaroop stated that being a Sanitary Inspector, he had noticed the unauthorized erection of structure by the petitioner in Bungalow No.35 which was in occupation of the petitioner and reported the matter to the CEO vide report Ex. CW1/C.
11. It is more than settled that the evidence led by the prosecution must be assertive enough to prove the allegations against the accused beyond all reasonable doubt. Admittedly, the original plans of Bungalow have not been produced and are stated to be with the authorities at Ambala. Therefore, in absence of such plans, I really wonder how the offence punishable under Section 184 of the Act could have been held to be proved. Afterall, the ingredients of the aforesaid Section are required to be proved by the complainant by showing, with reference to any sanctioned plan, with the construction found to have been carried out, was infact unauthorized, which in no manner has been ::: Downloaded on - 02/06/2017 00:00:53 :::HCHP 6 proved in this case by producing on record the contemporaneous evidence which in turn was required to be proved in accordance with law.
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12. That apart, the Cantonment has failed to disclose the exact construction existing at the site at the time of allegation so as to carry out the comparison of the construction existing on the date of the allegation and on the date of alleged incident at site and the learned Magistrate has in a cursory and slip-shod manner sentenced the petitioner which findings in a similar fashion have been affirmed by the learned Sessions Judge.
13. That apart, how the learned trial Magistrate sentenced the petitioner to pay costs of sealing of illegal construction and demolition is anybody's guess and is beyond the jurisdiction conferred under the Act, as would be evident from Section 184 of the Act which reads thus:-
"184. Illegal erection or re-erection.- Whoever begins, continues or completes the erection or re-erection of a building-
(a) without having given a valid notice as required by sections 179 and 180, or before the building has been sanctioned or is deemed to have been sanctioned, or
(b) without complying with any direction made under sub-
section (1) of Section 181, or
(c) when sanction has been refused, or has ceased to be a available, [or has been suspended by the Officer ::: Downloaded on - 02/06/2017 00:00:53 :::HCHP 7 Commanding-in-Chief, the Command, under clause (b) of sub-section(1) of Section 52,] shall be punishable with fine which may extend to [five thousand .
rupees]."
14. On the basis of the aforesaid discussion, I have no difficulty in concluding that the judgments passed by the learned Courts below suffer from not only material irregularity and illegality but are perverse and are, therefore, not sustainable in the eyes of law.
15. There is merit in this petition and the same is accordingly allowed. The judgments passed by the learned Courts below sentencing the petitioner to pay a fine of `5,000/- alongwith costs of sealing of illegal construction and its demolition, for the commission of offence punishable under Section 184 of the Act, against the petitioner, are set aside.
Pending application, if any, also stands disposed of.
May , 2017. (Tarlok Singh Chauhan),
(krt) Judge.
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