PATEL PRABHUDAS DWARKADAS Vs. DHOLASAN GRAM PANCHAYAT DHOLASAN

JUDGEMENT

(1.) This Special Criminal Application is directed against the judgment of the Additional Sessions Judge, Mehsana given under his revisional jurisdiction under Section 271 of the Gujarat Panchayats Act, 1961 confirming the order of the Nyaya Panchayat at Lich village in Mehsana Taluka whereby he dismissed the Revision Application of the present petitioner against the order of the Nyaya Panchayat whereby the Nyaya Panchayat had convicted him for an alleged offence for having violated Section 93 of the Gujarat Panchayats Act, 1961, (hereinafter referred to as `the Act') and ordering him to pay a fine of Rs. 20/- and further ordering that if he did not fill up the gap made for putting in a door within ten days then a fine of Rs. 2/- per day from 18th February, 1967 be levied and further that the Panchayat should take necessary steps to fill up the gap of the door. The short facts leading to this order are as follows:- The petitioner is a resident of village Dholasan in Mehsana Taluka. Respondent No. 1 is the Gram Panchayat constituted under the Act and respondent No. 2 is the Nyaya Panchayat constituted for that area. Respondent No. 3 is the State of Gujarat. On the 2nd of November, 1968, the petitioner had applied to the Gram Panchayat for permission to allow him to open a door in the back wall of his house. This part of the petitioner's building abuts an open street land. It appears that one Ambaram of the same village having come to know that the petitioner had asked for the permission, applied to the Panchayat for granting him that land which is touching the petitioner's building at the back. The application made by the petitioner came to be considered by the Panchayat on the 30th November, 1968. It appears that at that time the application made by Ambaram Joitaram also came up for decision. It is the allegation of the petitioner that Ambalal Joitaram is an influential man in the village. Respondent No. 1 the Panchayat therefore found it difficult to take a decision which may displease Ambalal Joitaram by granting permission to the petitioner. On that day respondent No. 1 Panchayat passed a resolution (Exhibit `A') which runs as follows:- "Meeting was held today wherein Patel Prabhudas Dwarkadas of this village had sought permission for placing door in the wall of his house. Ambaram Joitarambhai of this village had given application to get the said land at a lump sum. The Panchayat, therefore, inspected the site today, looking to the present situation of the place under demand, the Panchayat is silent (this is erased) for disposing of these applications. The Panchayat therefore resolves to forward the papers to the Taluka Development Officer, for taking satisfactory decision regarding the demands of the aforesaid Patel Prabhudas Dwarkabhai and of the No. 2. Resolution passed unanimously. It is resolved that the papers and applications be sent to the Taluka. The secretary to take further steps." It is the case of the petitioner that the said resolution is ambiguous and it only expresses its inability to decide one way or the other and forwarded the application of the petitioner and the application of Ambaram Joitaram to the Taluka Development Officer, may be for guidance or for decision. It is the petitioner's case that intimation of this resolution was not given to him and he proceeded to open and fix the door assuming that the permission was granted as per the provisions of Section 93 (2) of the Act. The members of the Panchayat-respondent No. 1 being annoyed at this act of the petitioner, decided to file a complaint against him under Section 93 (4) of the Act, for having opened up a door in his wall abutting on the adjoining land belonging to the Panchayat without permission of the Panchayat. Thereafter respondent No 2 the Lich Nyaya Panchayat took up the matter on the 7th of February, 1969 and imposed a fine on the petitioner of Rs.20/- and further ordered that the petitioner shall pay a recurring fine of Rs. 2/- per day if he fails to close the door within ten days from the date of the order. Thereafter the Criminal Revision Application No. 11 of 1969 was filed in the Court of the Sessions Judge, Mehsana against the respondents by the petitioner but the learned Judge dismissed the Revision Application. The said order of the Additional Sessions Judge is Exhibit `B'.

(2.) Before us Mr. Bhatt, the learned Advocate for the petitioner, tried to raise the contention that the resolution of the Panchayat dated 30th November, 1968, was not communicated to him. Therefore whatever be the contents of that resolution, it not having been communicated, he was entitled under Section 93 to act under the presumption that the permission was granted and under the circumstance, in any event the conviction is bad in law. We have not permitted Mr. Bhatt to agitate that question because that involved a question of fact and we find that the learned Additional Sessions Judge has accepted the finding of the Nyaya Panchayat that the said resolution was communicated. It is therefore not open to the petitioner to reagitate that question before us. Under the circumstances, Mr. Bhatt made the following two submissions for challenging the conviction:I. The resolution of the Panchayat neither grants nor refuses permission. Therefore the petitioner was entitled to construct or put in the door for which he had asked for permission, on the presumption under subsection (2) of Section 93 of the Act. II. The recurring or daily fine imposed by the Nyaya Panchayat was not in accordance with law and in any case that part of the order must be quashed. Now before we go to the submissions made on this contention of the parties, it would be proper for us to look at the provisions of Section 93 of the Act and we may as well reproduce the relevant part thereof:

(3.) Before we proceed to deal with the respective submissions on behalf of the parties, it would be helpful to refer to some of the similar provisions in the Acts concerning other local authorities. In the Bombay District Municipal Act, 1901, Section 96 is the similar provision. There also the requirement is that before beginning to erect any building, or to alter externally or add to any existing building, or to construct or reconstruct any projecting portion of a building in respect of which the Municipality is empowered by Section 92 to enforce a removal or set-back, the person intending so to build, alter, add or reconstruct etc., shall have to give to the municipality notice thereof in writing for permission and shall also have to furnish certain details, if required by law or by special order to do so. Sub-section (2) of that section then provides that save as otherwise provided in the Act or the rules and bye-laws thereunder, the Municipality may either give permission, to erect, alter, add to or reconstruct the building according to the plan and information furnished or may impose in writing such conditions as to level, drainage, sanitation, materials or to the dimensions and cubical contents of rooms etc., or may direct that the work shall not be proceeded with unless and until all questions connected with the location of the building and any such street have been decided to their satisfaction. Sub-section (3) also authorises the Municipality, within one month from the receipt of such notice, before issuing any order under sub-section (2), to either issue a provisional order directing that for a period which shall not be longer than one month from the date of such order, the intended work shall not be proceeded with or may demand further particulars. Then sub-section (4) provides for the right of the owner of the building to proceed with the work under certain circumstances and those circumstances are that in case the municipality within one month from the receipt of the notice given under subsection (1), have neither (i) passed orders under sub-section (2) and served notice thereof in respect of the intended work; nor (ii) issued under sub-section (3) any provisional order or any demand for further particulars; (iii) in case the Municipality had demanded further particulars and such particulars were furnished but no further orders within one month from the receipt of such particulars are passed. Sub-section (5) then provides that if anybody were to begin any construction, alteration etc. without giving any notice under sub-sec.(1) or without furnishing the documents or affording information etc., prescribed in the earlier part of the section or except as provide in sub-section (4), without waiting or in any manner contrary to such legal orders that may be issued by the Municipality or in any other respect contrary to the provisions of the Act or any bye-law, shall be punished with a fine which may extend to one thousand rupees and in the case of a continuing contravention of any of the aforesaid provisions, he shall be liable to an additional fine which may extend to ten rupees for each day. It may also direct the building or the alteration etc., to be stopped and upon a conviction being obtained, by written notice require such construction etc., to be demolished or altered.