DARBARI AND ANR. Vs. STATE AND ANR.

JUDGEMENT

(1.) A complaint was filed in the court of the Sub -Divisional Magistrate Hata by the Chairman of the Town Area Committee against Darbari and Ramjit on the allegations that they had constructed a house adjacent to the public road without previous notice and sanction as required Under Section 178/181 of the U.P. Municipalities Act (Act No. 2 of 1916). A notice was given to them to remove the construction but they did not give any reply. It was alleged that a failure on the part of the accused to remove the unsanctioned construction despite due notice under the provisions of the Act amounted to an offence punishable Under Section 185 of the said Act. The defence of the accused was that the house in question belonged to one Mahatam and that it had been constructed much before the Town Area same into existence. The prosecution in support of its case examined Ram Naresh Lal, Buxi of the Town Area and Rajneti. The accused examined Guptar in defence. The Sub -Divisional Magistrate after considering the evidence on record came to the conclusion that the prosecution had succeeded in proving its case. On this finding he convicted the accused Under Section 185 of the U.P. Municipalities Act and sentenced them to a fine of Rs. 250/ - each. A further fine of Rs. 5/ - per day was imposed upon the accused till they had removed the construction in question. The Magistrate also directed the accused to remove the construction. Aggrieved by this decision the accused filed an appeal before the first Additional Sessions Judge, Deoria. The Sessions Judge, confirmed the findings of the trial court. He held that the accused had made new construction within the limits of the Town Area without prior notice and sanction and therefore, they had committed an offence Under Section 185 of the Municipalities Act. He, however, set aside the sentence of fine of Rs. 5/ - per day imposed upon the accused and ordered removal of the construction within 15 days from the date of the order. Aggrieved thereby the Applicants have filed a revision in this Court.

(2.) THE findings of fact have not been challenged before me by the counsel for the Applicants. His sole contention is that the courts below had no jurisdiction to order removal of the construction while convicting the accused Under Section 185 of the Municipalities Act. He contends that this power vests exclusively in the Board (Town Area) and cannot be exercised by the Magistrate. I shall now examine the force of this argument. From a perusal of Ch. VII of the U.P. Municipalities Act, it appears that the relevant sections in this connection to be considered are Sections 178 to 186. They relate to the erection of buildings within the limits of Municipality. The relevant portion of Section 178 reads thus:

(3.) SECTION 180 of the Act authorises the Board (Town Area Committee) to either sanction or refuse to sanction the construction of the proposed building. Sub -section (5) of Section 180 runs thus: