MUNICIPAL BOARD Vs. OM PRAKASH KABARI

JUDGEMENT

(1.) THIS is an appeal by the Municipal Board, Sikandarabad. against the order of acquittal of the respondent, who was put up for trial for offences punishable under Sections 185/ 210 of the U. P. Municipalities Act. 1916. The case of the prosecution was that the respondent had constructed a four storeyed building without obtaining proper sanction from the Municipal Board.

(2.) THE respondent made an application on 20-3-1964 for sanction of a plan of a two storeyed building and he was accorded the necessary sanction by the Board by an order dated 6-6-1966. On 22-9-1967 a report was made by the Overseer that the constructions were made not according to the plan sanctioned by the Board and further that the respondent had built two additional storeys on the same building. In pursuance of that report the Board sent a notice dated 26-10-1967, under Section 184/211 of the U. P. Municipalities Act, to the respondent asking for his explanation and to show cause why action be not taken against him according to law. The respondent replied to theforesaid notice which was received in the office of the Board on 1411-1967 and took up the stand that he had constructed two storeys with the sanction of the Board and the remaining two storeys were constructed in anticipation of the sanction as he had, about a year back, made an application for grant of the necessary sanction which had not been received till then. It was also alleged that the projection etc. existed in the old building and no difference arose because of the projection in the newly constructed building. It appears that the office put up a report on this reply of the respondent to the effect that the building which had been constructed was not according to the sanctioned plan and that no application had been made for constructing the third and fourth storeys and projections etc. were also made without the necessary sanction. It was recommended that action should be taken against the respondent under Sections 185/210 of the U. P. Municipalities Act as the explanation submitted by him was not satisfactory. On this report it was directed that the necessary complaint be filed which was done and this has given rise to the present appeal by the Board.

(3.) THE learned Tahsildar Magistrate by his order dated 30-12-1968 acquitted the respondent on the finding that the Board had failed to specify by positive evidence as to what were the material changes not covered by the approved site plan in respect of the first two storeys of the buildirg. As regards the third and fourth storeys, the view taken by the learned Magistrate was that they had been constructed in anticipation of the permission for which, according to the respondent, he had made an application. On the question whether such an application had actually been made or not, the learned Magistrate came to the conclusion that the prosecution witnesses had given evasive and indefinite statements to the effect that they did not know about it. The learned Magistrate was further of the opinion that under Section 178 (1) of the U. P. Municipalities Act only in those cases where the construction is adjacent or abuts on the public lane or property that the sanction is essential and since the third and fourth storeys did not touch the public lane at any place, no sanction was necessary for construction of the third and fourth storeys.