Rajasthan High Court - Jaipur
Mahesh Goyal vs State Of Rajasthan And Ors on 22 February, 2017
HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT
JAIPUR
S.B.Criminal Appeal No. 193/2014
Mahesh Goyal s/o Shri Prahlad Prasad Goyal, R/o 8,
Chhayadeep-II Colony, Mahesh Nagar, Tempo Stand, Jaipur
(Raj.)
Appellant-Complainant
Versus
1. State Of Rajasthan through Public Prosecutor
2. Ram Gopal Gupta R/o 9, Chhayadeep-II Colony, Mahesh Nagar, Tempo Stand, Jaipur (Raj.) Respondent-Accused
3. Jaipur Development Authority, Jaipur through its Assistant Public Prosecutor.
Non-Petitioners
For Appellant(s) : Mr. Rajendra Soni, Advocate
For the Respondent : Mr. J.P.Goyal, Sr.Advocate with
Mr.Dheeraj Singhal
For Respondent JDA: Mr.R.A.Katta.
For State (s) : Mr. R.R.Gurjar.
_____________________________________________________ HON'BLE MR. JUSTICE PRASHANT KUMAR AGARWAL Judgment Date of Judgement :: 22.02.2017 REPORTABLE Aggrieved with the judgment and order dated 19.10.2011 passed by the Additional Chief Judicial Magistrate No.1, Jaipur Development Authority in Criminal Case No.132/2009 whereby the accused-respondent-Shri Ram Gopal Gupta was acquitted for the offences under Sections 31 (1), 32 (7) and for offence under Section 33 (2) of the Jaipur Development Authority Act, 1982 (hereinafter to be referred as "the Act"), the appellant has filed this criminal appeal (2 of 28) [CRLA-193/2014] under sub-section (4) of Section 378 Cr.P.C. It is to be noted that leave to appeal was granted vide order dated 29.1.2014.
Brief relevant facts for the disposal of this appeal are that a complaint under Section 75 of the Act was filed by the Enforcement Officer, JDA, Jaipur against the accused-respondent for the aforesaid offences on 8.5.2009 with the averment that respondent has undertaken development on Plot No.9 situated at Chhayadeep-II Colony within the area of Police Station Mahesh Nagar, Jaipur in violation of the bye-laws prescribed by the Jaipur Development Authority and without its permission. It was further averred that a notice under Section 31 (1) of the Act was served upon the respondent on 30.3.2009 with the direction that the illegal development undertaken by him should be stopped immediately and if he has any objection to it, he may appear before the competent officer and can file objection before him but the respondent neither stopped illegal development on the aforesaid plot till 27.4.2009 nor any objection/explanation was filed. It was further averred in the complaint that the illegal construction undertaken by the accused- respondent is still present on the plot which is liable to be removed. Alongwith the complaint some documents were also filed. Learned trial Court took cognizance against the respondent and after his appearance before it, on 20.7.2009 summary of charge was read over to him which was denied. In order to prove the charge against the respondent, complainant-Jaipur Development Authority produced oral as well as documentary evidence whereas respondent in his statement (3 of 28) [CRLA-193/2014] recorded under Section 313 Cr.P.C. denied the evidence produced on behalf of the complainant and specifically stated that he did not undertake any illegal construction and in defence respondent-accused himself appeared as witness. Learned trial Court after considering the submissions made on behalf of the respective parties and appreciating and evaluating the evidence made available on record acquitted the respondent-accused. Feeling aggrieved, appellant-Shri Mahesh Goyal is before this Court by way of this appeal. It is to be noted that appellant is neighbour of respondent-accused being owner and resident of Plot No.8 which is situated on the southern side of the plot in dispute and it is appellant who initially lodged complaint more than once before J.D.A. when development/construction work was undertaken by the accused-respondent on his plot and it is on the basis of the complaints made by the appellant, J.D.A. initiated action against the respondent and filed complaint before the trial Court. It is to be noted that appellant was not made a witness in the case and he was also not examined during trial. It is further to be noted that Jaipur Development Authority has not filed appeal against the impugned judgment and order. It is also to be noted that an application under Section 391 Cr.P.C. was filed by the appellant with a prayer to take on record documents filed alongwith it as additional evidence. However, reply to the application was not filed on behalf of the respondent and alongwith the appeal order on this application is also to be passed. In the course of hearing of the appeal in compliance of the order dated 15.9.2015, Jaipur Development Authority filed a report dated (4 of 28) [CRLA-193/2014] 6.10.2015 showing the development/construction work undertaken on the plot in dispute in violation of the bye-laws prescribed by the Jaipur Development Authority. Apart from that, this Court vide order dated 8.3.2016 appointed advocate Shri A.K.Bhargava as commissioner to inspect the site in dispute and file his report and in compliance of the same Shri Bhargava filed his report dated 13.3.2016 alongwith some photographs. Vide order dated 16.3.2016 liberty was given to the parties to file objections, if any, to the commissioner's report but no objections have been filed by any of the parties.
Before considering the appeal and the application under Section 391 Cr.P.C., it is appropriate to consider and decide the following two preliminary objections raised by the accused- respondent-
(a) Appeal under Section 378 (4) Cr.P.C. is not maintainable as remedy under proviso to Section 372 was available to the appellant to file appeal before the concerned Sessions Judge and
(b) Complaint under Section 75 of the Act filed by the Enforcement Officer before the trial Court was not maintainable as he was not an authorized and competent person to file such a complaint.
It was submitted by the learned counsel for the respondent that appellant claims that he is actual "victim" of the development/construction work undertaken by the respondent on the plot No.9 situated adjacent to his plot No.8 as according to him as a result of the said construction free flow of air and light has obstructed and it is on the complaint made by the appellant that Jaipur (5 of 28) [CRLA-193/2014] Development Authority initiated legal proceedings against the respondent by way of filing a complaint under Section 75 of the Act and, therefore, appellant being a "victim" within the meaning of clause (wa) of Section 2 of Cr.P.C., remedy was available to him to challenge the order of acquittal under proviso to Section 372 Cr.P.C. before the concerned Sessions Judge and not before High Court by way of present leave to appeal under Section 378 (4) Cr.P.C. It was further submitted that as per main part of Section 372, appeal can lie against any judgment or order of a criminal court only in the manner prescribed by the Code and not in any other manner and when a right has been conferred upon a "victim" to prefer an appeal against an order of acquittal passed by the Court of Magistrate before Sessions Judge, appeal under Section 378 (4) is not competent. It was also submitted that appeal under Section 378 (4) can be filed only by a complainant against an order of acquittal in a case instituted upon a complaint after obtaining special leave from the High Court and in the present case, appellant can not be said to be a complainant as complaint under Section 75 of the Act was not filed by him but by Enforcement Officer of Jaipur Development Authority. It was submitted that as per proviso to Section 372, right of appeal against an order of acquittal has been conferred upon a "victim" not only in a case instituted upon a police report but also in a case instituted upon the complaint. It was pointed out that against an order passed by the Sessions Judge in appeal, accused has an additional right to file revision petition before High Court which is not available to him if (6 of 28) [CRLA-193/2014] appeal is filed under Section 378 (4) Cr.P.C. It was submitted by the learned counsel for the respondent that victim of an offence, who has not filed complaint, has no right to file appeal after grant of special leave under sub-section (4) of Section 378 of the Code but he may file appeal under proviso to Section 372 Cr.P.C. thereof. According to him only the complainant who is also a "victim" has a right in a complaint case to avail the remedy of special leave to appeal against the judgment of acquittal under sub-section (4) of Section 378 Cr.P.C.
On the other hand, learned counsel for the appellant submitted that by way of newly added proviso to Section 372 Cr.P.C, right has been conferred upon the "victim" of an offence against an order of acquittal only in a case instituted upon a police report as previously such right was not available to him in such a case and only State was having right to challenge such acquittal under Section 378 Cr.P.C. and victim was wholly dependant on the mercy of the State for this purpose. It was further submitted that proviso to Section 372 will not be attracted to a case filed on complaint and even such victim of the offence who himself has not filed the complaint has to file special leave under Section 378 (4) against order of acquittal. It was also submitted that when in a complaint case against order of acquittal the complainant is required to obtain leave under Section 378 (4) by High Court, victim of the offence who has not actually filed the complaint must follow the same procedure and choose the same forum and not any other. It was submitted that it would be anamolous that the complainant i.e. the person who actually filed the complaint has to file (7 of 28) [CRLA-193/2014] appeal under Section 378 (4) Cr.P.C. before High Court after obtaining special leave to appeal whereas victim of the offence, who is not the actual complainant, has to file appeal before the Sessions Judge under proviso to Section 372 in a case in which order of acquittal has been passed by a Magistrate. There cannot be two different forums of appeal to challenge the same order of acquittal by two different persons and in such a situation possibility of contradictory orders being passed in appeals cannot be ruled out.
The question to be decided in this case is "whether in a case instituted upon a complaint against order of acquittal passed by the Court of Magistrate appeal against such an order at the instance of the victim, who is not the complainant i.e. complaint before the Court was not filed by him but by some other person or statutory authority would lie under proviso to Section 372 Cr.P.C. before the concerned Sessions Judge or under sub-section (4) of Section 378 before High Court after obtaining special leave to appeal." It is not in dispute that in such a case, appeal at the instance of the complainant i.e. the person who filed the complaint before the Court would lie under sub- section (4) of Section 378. Section 372 Cr.P.C. provides that no appeal shall lie from any judgment or order of a criminal Court except as provided by the Code of Criminal Procedure or by any other law for time being in force. As per this provision appeal against a judgment or order passed by a criminal Court would lie only in such manner and before such appellate Court as provided under other provisions of the Code of Criminal Procedure. So far as appeal in case of acquittal is (8 of 28) [CRLA-193/2014] concerned, sub-section (4) of Section 378 provides that if such an order of acquittal is passed in any case instituted upon complaint and the High Court, on an application made to it by the complainant in this behalf, grants special leave from the order of acquittal, the complainant may present such an appeal to the High Court. Thus, it is clear that against an order of acquittal passed in a case instituted upon a complaint, appeal would lie under this provision. Merely because a new right has been conferred upon a victim under proviso to Section 372 to file appeal against an order of acquittal, it cannot be held that appeal at his instance would lie under that provision even in a case instituted upon a complaint. In my opinion appeal in such a case either at the instance of complainant or at the instance of victim, who himself has not filed the complaint, would lie under sub-section (4) of Section 378 and not under proviso to Section 372 as the basic criteria to decide the provision of appeal is - In what case the order of acquittal has been passed and not the person who filed the complaint. Newly added proviso to Section 372 of the Code is a general provision dealing with remedy for victims of crime but section 378 (4) is a special provision dealing with appeal in case of acquittal of accused in complaint cases. Although, the complainant has been conferred right of appeal under this provision but it does not bar appeal at the instance of victim, who is not the complainant. Plain reading of the provision brings out that the remedy is provided in the provision to the victim also. Section 378 (4) of the Code being a special provision will have overriding application and effect over the category of cases (9 of 28) [CRLA-193/2014] specifically dealt with by it on the principle of " Generalia Specialibus non derogant" which literally means the general does not detract from the specific. It is well settled that if a special provision deals with certain matter, then that matter is excluded from the application of general provision. Although, Section 378 (4) provides for appeal at the instance of complainant but in absence of definition of word complainant in the Code, it cannot be confined only to the person who has actually filed the complaint more particularly in view of the fact that it is not necessary that only victim is entitled to file complaint before the Court. In a case the complainant himself may be victim also, in another case the complainant is not the actual victim but that does not mean that he would not have a right of appeal in case the complaint is dismissed and accused is acquitted. In some cases the victim has no right to file complaint and same is required to be filed by some designate person upon complaint due to statutory prescription. I am of the view that there cannot be two forums of appeal against the same order of acquittal, one at the instance of complainant under Section 378 (4) and other at the instance of victim, who is not the complainant, under proviso to Section 372 giving rise to possibility of contradictory orders in the same case. A provision is to be interpreted in a manner which rules out such possibility.
As a result of this discussion, the first preliminary objection raised by the respondent is rejected and it is held that appeal under Section378 (4) Cr.P.C. at the instance of appellant is maintainable.
(10 of 28) [CRLA-193/2014] In regard to the second preliminary objection, inviting attention to sub-section (1) of Section 75 of the Act, it was submitted by learned counsel for the respondent that Court can take cognizance for an offence punishable under the Act or any rule or regulation or order made thereunder only upon a complaint made by the Jaipur Development Authority or by a person expressly authorized in this behalf by the Jaipur Development Authority whereas in the present case Enforcement Officer, who has filed the complaint was not authorized to file such complaint, as he was authorized not by the Jaipur Development Authority but by its Secretary vide an order issued in the year 1990. It was submitted that as per Section 4 of the Act, the Jaipur Development Authority is a body corporate composed of several members as provided in this provision and its Secretary alone cannot function as authority and authorize any person to file complaint under Section 75 of the Act. It was further submitted that Secretary, Jaipur Development Authority was authorized to file complaint vide order dated 4.9.1982 and, therefore, he was not competent to further delegate upon his power and authorize any other officer to file such a complaint. It was submitted that although such an objection was not raised before the Court below but being a legal question going to the root of the matter, it can be raised for the first time even in this appeal and the entire proceedings are vitiated being based on an incompetent complaint and, therefore, the appeal is liable to be dismissed on that account only.
(11 of 28) [CRLA-193/2014] In support of his submissions, learned counsel for the respondent relied upon the case of P.Pramila & Ors. Vs. State of Karnataka & anr. reported in AIR 2015 (SC) 2495.
On the other hand, learned counsel for the appellant submitted that appeal cannot be dismissed on such technical ground taken for the first time in the appeal as the same does not go to the root of the case. It was further submitted that if such objection would have been taken at the first opportunity in the trial Court, necessary steps could have been taken by the Jaipur Development Authority for filing the complaint by a competent person.
In the present case, the complaint has been filed by the Enforcement Officer Shri K.K.Avasthi who appeared during trial as PW1. He claimed that he was authorized by order Ex.P5 to file complaint before the Court. Sub-section (1) of Section 75 of the Act provides that no court shall take cognizance of any offence punishable under this Act or any rule or regulation or order made thereunder except upon a complaint in writing of the facts constituting such offence made by the Authority, or by a person expressly authorized in this behalf by the Authority. Thus, according to this provision complaint can be filed either by the Jaipur Development Authority or by a person expressly authorized in this behalf by it. As per this provision it cannot be disputed that only Jaipur Development Authority can authorize any other person to file such a complaint and a person who has been authorized by the Jaipur Development Authority to file complaint cannot further delegate his power upon and authorize any (12 of 28) [CRLA-193/2014] other person to file complaint in a Court. In the light of this legal requirement, if Ex.P5 is closely looked, it cannot be said that Secretary, Jaipur Development Authority has further delegated his power upon and authorized Enforcement Officers to file complaints. As per this order, it is Jaipur Development Authority, while exercising power conferred upon it under sub-section (1) of Section 75 of the Act, has authorized the Enforcement Officers to file complaints but with the condition that before doing so prior permission of Secretary, Jaipur Development Authority/Director, Enforcement/Deputy Director, Enforcement would be obtained. It is further to be noted that this order was issued under the sign of Secretary for and on behalf of the Jaipur Development Authority and not by the Secretary himself in his personal official capacity. Merely because this order was issued under the sign of Secretary, who was also separately authorized by Jaipur Development Authority to file complaints or the Enforcement Officer can file complaint with his or some other officers prior permission, it cannot be said that Secretary has further delegated upon and authorized the Enforcement Officers to file complaints. As required by this order, vide Ex.P4 Deputy Director, Enforcement has permitted the Enforcement Officer-Shri K.K.Avasthi to file the complaint in the present case.
In view of the aforesaid discussion, the second objection raised on behalf of the respondent is also rejected.
So far as application under Section 391 Cr.P.C. is concerned, by way of the same appellant has sought permission of (13 of 28) [CRLA-193/2014] this Court to file following documents as additional evidence with the averment that the same are necessary for the just disposal of the appeal:-
(1) Representations, five in number, made by the appellant to various authorities complaining about the alleged illegal construction undertaken by the respondent-accused on his Plot No.9 in violation of bye-laws of the Jaipur Development Authority without leaving front and side set back.
(2) Letter dated 6.4.2014 issued by the Office of Chief Minister, Government of Rajasthan to Secretary, Jaipur Development Authority to look into and take necessary action on the complaint made by the appellant.
(3) Order dated 18.3.2009 passed by the Court of Additional Civil Judge (Junior Division) No.2, Jaipur City, Jaipur in Civil Misc.
Application No.205/2009 filed by the appellant against respondent whereby the learned Civil Court restrained the respondent not to raise construction upon Plot No.9 in the set back in violation of bye- laws of Jaipur Development Authority.
(4) Colored photographs, six in number, of the construction allegedly undertaken by the respondent from time to time including after complaints were made by the appellant and suit alongwith application for temporary injunction was filed by the appellant in the Civil Court.
(14 of 28) [CRLA-193/2014] (5) Report of Commissioner alongwith site map and photos prepared by him in compliance of the order passed by the Civil Court.
(6) Copy of relevant bye-laws of Jaipur Development Authority.
It is to be noted that respondent-accused neither filed reply to the application nor denied the genuineness of the documents filed alongwith the application.
It was submitted by the learned counsel for the appellant that these documents are necessary for the just decision of the dispute between the parties and the same could not be produced before the trial Court as appellant was not called as witness on behalf of the Jaipur Development Authority during trial. It was further submitted that representations and photographs were available with the Jaipur Development Authority but they were not produced but only by that reason the application cannot be refused.
On the other hand, learned counsel for the respondent submitted that unless opportunity of cross-examination is given to the respondent, additional evidence in any form cannot be permitted to be produced in appeal. It was further submitted that report of Commissioner is not automatically admissible in evidence unless the Commissioner who prepared it is cross-examined by the respondent.
In the facts and circumstances of the case, it is to be seen whether documents filed alongwith the application are relevant and necessary for the just decision of the appeal. In the present case, the question involved is whether respondent has made (15 of 28) [CRLA-193/2014] construction on his plot No.9 in violation of bye-laws of Jaipur Development Authority more particularly raising construction on the set backs even after complaints were made by the appellant against him as soon as the respondent started raising construction and continued with it.
Sub-section (1) of Section 391 Cr.P.C. provides that appellate Court may allow additional evidence if it thinks it to be necessary after recording reasons and such evidence shall be taken in the manner as provided under Chapter-XXIII Hon'ble Supreme Court in the case of Ashok Tshering Bhutia Vs. State of Sikkim reported in (2011) 4 SCC 402 has held that additional evidence at the appellate stage is permissible, in case of a failure of justice. However, such power must be exercised sparingly and only in exceptional suitable cases where the court is satisfied that directing additional evidence would serve the interests of justice. It would depend upon the facts and circumstances of an individual case as to whether such permission should be granted having due regard to the concepts of fair play, justice and the well-being of society. Such an application for taking additional evidence must be decided objectively, just to cure the irregularity. The primary object of the provisions of Section 391 Cr.P.C. is the prevention of a guilty man's escape through some careless or ignorant action on part of the prosecution before the court or for vindication of an innocent person wrongfully accused, where the court omitted to record the circumstances essential to (16 of 28) [CRLA-193/2014] elucidation of truth. Generally, it should be invoked when formal proof for the prosecution is necessary.
It was further held that additional evidence can be taken at the appellate stage in exceptional circumstances, to remove an irregularity, where the circumstances so warrant in public interest. Generally, such power is exercised to have formal proof of the documents etc. just to meet the ends of justice. However, the provisions of Section 391 Cr.P.C. cannot be pressed into service in order to fill up lacunae in the prosecution case .
In view of the principle of law laid down by Hon'ble Supreme Court and the fact that respondent has not disputed the genuineness of the documents produced as additional evidence by filing reply to the application, the application is allowed and the documents filed alongwith it are taken on record as additional evidence.
As per order dated 15.9.2015, counsel for the Jaipur Development Authority was directed to make statement as to whether house in question has been constructed as per bye- laws/rules or not and in compliance thereof report dated 6.10.2015 showing construction made on plot No.9 in violation of bye-laws and also encroachment made on the road in front of plot No.9 was produced. Respondent-accused has not disputed the report made by the Jaipur Development Authority. I found that this report is also relevant and necessary for the just decision of the appeal.
(17 of 28) [CRLA-193/2014] Vide order dated 8.3.2016, with the consent of counsel for the parties, advocate Shri A.K.Bhargava was appointed as Commissioner to inspect the site in dispute and prepare the report and in compliance thereof, Shri Bhargava inspected the site in the presence of the parties on 13.3.2016 and a report alongwith some photographs was produced. As none of the parties has filed objection to the report, it will also be considered while deciding the appeal.
It was submitted by the learned counsel for the appellant that from the evidence produced during trial it was clear that respondent-accused made construction on the disputed plot in the side and front set back in violation of bye-laws of Jaipur Development Authority and despite notice Ex.P2 dated 30.3.2009 under sub-section (1) and (6) of Section 32 and notice Ex.P3 under Section 33 of the Act were duly served upon him, respondent did not stop and remove the illegal construction rather he continued with it. It was submitted that respondent has not disputed the service of these notices upon him. It was further submitted that PW1-Shri K.K.Avasthi, the then Enforcement Officer, in his statement before the trial Court in clear terms stated that at the time of inspection of 30.3.2009 by him, it was found that construction on the plot No.9 in area of 36' x 20' covering front set back was being undertaken by the accused-respondent-Shri Ram Gopal Gupta. According to learned counsel for the appellant benefit of doubt was wrongly given to the respondent by the learned trial Court merely by the reason that the (18 of 28) [CRLA-193/2014] witness did not specifically denied in his cross-examination the suggestion that balcony of three feet has been constructed after leaving set back of 7'6". It was submitted that as per the statement of the witness and the requirement of law, front set back of ten feet was required to be left open and it was denied by the witness in his cross-examination that the required set back of ten feet was left, benefit of doubt should not have been given merely by the reason already stated. It was also submitted that from the additional evidence produced during appeal, report dated 6.10.2015 of Jaipur Development Authority and report of Commissioner dated 13.3.2016, it is further clear that respondent not only made construction covering front set back but also side set back towards plot No.8 of appellant in violation of bye-laws and continued with it even after service of notice upon him on 30.09.2009. It was submitted that order of acquittal can be set aside by this appellate Court if it is found that it has been passed by the trial Court over looking the material evidence and without properly appreciating it.
On the other hand, learned counsel for the respondent- accused supporting the impugned order, submitted that the learned trial Court after appreciating and evaluating the evidence available on record and considering the relevant legal provisions has passed the same warranting no interference by this Court. It was further submitted that it is well settled legal position that scope of appeal against order of acquittal is very limited and if two views are (19 of 28) [CRLA-193/2014] possible, appellate Court should not substitute his view and set aside the order passed by the trial Court.
In this case respondent-accused was prosecuted and tried for the offences punishable under Section 31 (1), 32 (7) and Section 33 (2) of the Act on the premise that on inspection being made by the Enforcement Officer-Shri K.K.Avasthi on 30.3.2009 of his plot No.9 it was found that illegal construction was being undertaken by him without permission and consent of Jaipur Development Authority in the front set back of the plot after covering area of 36'x20'. It was further alleged by the prosecution that the Enforcement Officer served notice under Section 33 of the Act on 30.3.2009 restraining the respondent not to undertake the construction, but the same was not stopped despite due service of notice. It is also the prosecution case that the Enforcement Officer on the same day served another notice under Section 32 of the Act upon the respondent with a direction to remove the illegal construction made by him but the same was not removed. It is to be noted that respondent has not denied the service of the notices upon him and construction made by him on the aforesaid plot but his defence is that he has not made any illegal construction. The respondent-accused during trial appeared as witness and in his statement recorded on 12.10.2011 stated that he undertook construction after leaving front set back of 7' 6" and balcony of three feet.
(20 of 28) [CRLA-193/2014] Sub-section (1) of Section 31 of the Act as it was applicable at the relevant time provided that any person who, whether at his own instance or at the instance of any other person commences, undertakes or carries out development or institutes, 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 in contravention of any condition subject to which such permission has been granted; or
(c) after the permission for development has been duly revoked; or
(d) in contravention of any permission which has been duly modified shall, on conviction, be punished with fine which may extend 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 day during which the offence continues after conviction for the first commission of the offence.
Sub-section (6) of Section 32 of the Act provided that if within the period specified in the notice or within the same period after the disposal of the application under sub-section (4), the notice or so much of it as stands is not complied with, the Authority may-
(a) prosecute the owner for not complying with the notice and where the notice requires the discontinuance of any use of land, any other person also who uses the and or causes or permits the land to be used in contravention of the notice, and (21 of 28) [CRLA-193/2014]
(b) where the notice requires the demolition or alteration of any building or works or carrying out of any building or other operations, itself cause the restoration of the land to its condition before the development took place and secure compliance with the conditions of the permission or with the permission as modified by taking such steps as the Authority may consider necessary including demolition or alteration of any building or works or carrying out of any building or other operation; and recover the amount of any expenses incurred by it in this behalf from the owner as arrears of land revenue.
Sub-section (7) of Section 32 of the Act provided that any person prosecuted under clause (a) of sub-section (6) shall, on conviction, be punished with fine which may extend to five thousand rupees, and in the case of a continuing offence, with a further fine which may extend to five hundred rupees for every day during which such offence continues after conviction for the first commission of the offence.
Sub-section (2) of Section 33 provided that any person, who continues to carry out the development of land, whether for himself or on behalf of the owner or any other person, after such notice has been served shall, on conviction, be punished with fine which may extend to five thousand rupees and when the non- compliance is a continuing one, with a further fine which may extend to five hundred rupees for every day after the date of the service of (22 of 28) [CRLA-193/2014] the notice during which the non-compliance has continued or continues.
Sub-section (1) of Section 32 provided that where any development of land has been carried out as indicated in sub-section (1) of section 31, the Authority may, subject to the provisions of this section, within ten years of such development, serve on the owner a notice requiring him, within such period, being not exceeding one month, as may be specified therein after the service of the notice, to take such steps as may be specified in the notice -
(a) in cases specified clause (a) or (c) of sub-section (1) of section 31 to restore the land to its condition existing before the said development took place;
(b) in cases specified in clause (b) or (d) of sub-section (1) of section 31 to secure compliance with the conditions or with the permission as modified:
provided that, where the notice requires the discontinuance of any use of land the Authority shall serve a notice on the occupier also.
Sub-section (1) of Section 33 is as below:
"Where any development of land as indicated in sub-section (1) of section 31 is being carried out but has not been completed, the Authority may serve on the owner and the person carrying out the development, a notice requiring the development of land to be discontinued from the time of the service of the notice; and thereupon, the provisions of sub-section (3), (4), (5) and (6) of (23 of 28) [CRLA-193/2014] section 32 shall, so far as may be applicable, apply in relation to such notice, as they apply in relation to notice under section 32."
From the evidence made available during trial, additional evidence allowed in the appeal, report dated 6.10.2015 filed by the Jaipur Development Authority and the commissioner's report, I found the following facts well established:-
(1) The plot in dispute bearing No.9 measuring 190 sq. yards (158.92 sq.meter) was allotted by the Jaipur Development Authority to one Smt.Gayatri Verma with the condition that construction would be carried on it as per the rules applicable. It measures 36' North to South and 47'6" East to West facing east having a 30 feet wide road. (2) Smt.Gayatri Verma sold this plot to respondent-accused vide registered sale-deed dated 1.6.2002. At the time of said sale one room, one kitchen, lounge, garage and one set of latrine-bathroom covering an area of 67.07 sq.meter on the back portion of the plot were constructed of this plot.
(3) At that time, the front set back and side set back towards Plot No.8 of appellant and back set back were open as per the site map attached with the sale-deed.
(4) As per the then applicable bye-laws of Jaipur Development Authority front set back of 3 meter (10 feet) and back set back of 2.5 sq. meter (8.33 feet) was required to be left open. Construction was allowed only on the remaining area.
(5) Respondent-accused undertook further construction on this plot some time in the month of March 2009 upon which complaints (24 of 28) [CRLA-193/2014] were made by the appellant starting from 16.3.2009 to various authorities of Jaipur Development Authority to the effect that respondent is raising construction on his plot without leaving the required set back which may obstruct his right to receive free flow of air and light. It was prayed by the appellant that illegal construction may be stopped and removed.
(6) A civil suit alongwith application for grant of temporary injunction was filed by the appellant against the respondent-accused in the Court of Additional Civil Judge (Junior Division) No.2, Jaipur City, Jaipur on or before 17.3.2009 and on 18.3.2009, an ad-interim temporary injunction was passed by the Court in the presence of both the parties restraining the respondent not to raise construction in the front set back of the plot in dispute in violation of the bye- laws of Jaipur Development Authority.
(7) Respondent continued with the construction work and finally two storied building came to be constructed. This fact is clear not only from the coloured photographs but also from the report dated 14.2.2011 prepared by the Commissioner in compliance of the order passed by the Civil Court. Respondent has also not disputed this fact.
(8) PW1 Enforcement Officer Shri K.K.Avasthi alongwith PW2-Shri Manohar Kohli inspected the plot in dispute on 30.3.2009 and finding that respondent has undertaken construction on an area of 36' x 20' covering front set back without permission and consent of Jaipur Development Authority served notices upon respondent which were (25 of 28) [CRLA-193/2014] duly received by him. Respondent has not denied the service of notices upon him.
(9) Construction has been made in the disputed plot from North to South covering the entire area of 36' after leaving open area of 7' 6"
only as front set back instead of 3 meter (10 feet) as required by law. Balcony constructed on the first and second floor of the building is also part of this open area 7' 6" and not separate from it as claimed by the respondent and held by the learned trial Court. (10) As per the site map attached with the registered sale-deed set back in the back portion of the plot from North to South covering length of 26 feet was open whereas as per report dated 6.10.2015 further construction was made in this set back also in violation of bye-laws.
From the evidence available on record it is clear that trial Court has misread the statement of prosecution witness PW1-Shri K.K.Avasthi merely by the reason that he failed to specifically deny the suggestion made in his cross-examination that respondent has left open front set back of seven feet, apart from balcony of three feet. Although, at the time of inspection on 30.3.2009 made by the Enforcement Officer, the actual area left open by the respondent was not very much clear and visible because at that time the construction work was undergoing but thereafter the entire picture became clear when construction was completed and inspection was made on 14.9.2011 by Commissioner appointed by the Civil Court i.e. two and half years after inspection was made on 30.3.2009. As (26 of 28) [CRLA-193/2014] per report dated 13.3.2016 also front set back of 7'6" only was found to be left open and construction has been made upto common boundary wall between Plot Nos.8 and 9 i.e. covering entire area of 36 feet from North to South.
Although, in case of appeal against an order of acquittal, it is well settled legal position that where two views are reasonably possible from the evidence, the order of acquittal should not be disturbed by the appellate Court but at the same time it is also well settled that where the judgment of the trial Court is perverse, legally erroneous and based on misreading of evidence, in such a case appellate Court is justified in reversing the order of acquittal and convicting the accused. Appellate Court has full power to reappreciate and re-valuate the entire evidence and reach its own independent conclusion but before doing so, it must dislodge the reasons recorded by the trial Court.
From the conclusions arrived at as above, it is clear that respondent-accused has committed offence under sub-section (1) of Section 31 of the Act as he undertook and carried out construction on the plot in dispute in contravention of the condition subject to which permission of construction was given to him i.e. without leaving open the set back as required by bye-laws of the Jaipur Development Authority. It is also clear that respondent has also committed offence under sub-section (7) of Section 32 of the Act as he did not remove the construction undertaken by him in contravention of the condition subject to which permission was (27 of 28) [CRLA-193/2014] granted to him even after due service of notice requiring him to do so. It is also clear that respondent has committed offence under sub- section (2) of Section 33 of the Act as he continued to make construction on the plot in dispute even after due service of notice requiring him to stop and dis-continue the construction being carried by him.
In the facts and circumstances of the case, the respondent-accused is sentenced with a fine of Rs.5,000/- for offence under sub-section (1) of Section 31 of the Act and in default thereof to undergo simple imprisonment for three months. For offence under sub-section (7) of Section 32 of the Act also he is sentenced with a fine of Rs.5,000/- and in default thereof to suffer simple imprisonment for three months. Similarly, he is further sentenced with a fine of Rs.5,000/- for offence under sub-section (2) of Section 33 of the Act and in default thereof to undergo simple imprisonment for three months. Thirty days time is granted to the respondent to pay the aforesaid amount of fine, failing which he will surrender before the trial Court after expiry of the time granted to him so that he can undergo the sentence of imprisonment awarded to him in default of payment of fine. If respondent fails to appear before the trial Court, necessary steps provided by law will be taken by it for his appearance so that he can be sent to the concerned jail to serve the sentence awarded.
(28 of 28) [CRLA-193/2014] Consequently, the appeal is allowed in the aforesaid manner.
(PRASHANT KUMAR AGARWAL) J teekam Reserved order