GIR PRASAD GUPTA Vs. STATE

JUDGEMENT

(1.) This appeal by the state of UP is directed against an order of the Sub -Divisional Magistrate, Chail, district Allahabad by which he dismissed a complaint filed by the Improvement Trust of Allahabad Under Sec. 185 of the UP Municipalities Act read with S. 49 of the UP Town Improvement Act. The Improvement Trust through its administrator has also filed Revision application against the same order. As both appeal and the revision application are directed against the same order, I propose to dispose them of by a common judgment.

(2.) The facts leading up to the order under appeal are not in dispute and may be briefly summarised as follows.

(3.) The Respondent to this appeal is one Sri Gir Prasad Gupta, who also styles himself as Sri Gir Prasad Varshney. He took a plot of land -being Plot No. 552 -in the Mumfordganj Housing Scheme, Allahabad, on lease from the Allahabad Improvement Trust hereinafter to be referred as the Trust on certain terms and conditions, and entered into possession thereof. It appears that sometime after coming into possession of the said plot he started constructions thereon but without giving notice to, and obtaining the sanction of, the Trust. On 20 -11 -1951 the Secretary of the Trust sent a letter to the Respondent (Ex. P2) informing him that the former had come to know that the Respondent had made some construction over the said plot without obtaining the previous sanction of the Trust; and he was therefore asked to stop further constructions at once and to show cause why proceedings for making those unauthorised constructions should not be taken against him. Thereafter on some date which is not clear the Respondent sent a letter to the Chairman of the Trust informing him that as there was some uncertainty with regard to the boundaries of the Respondent's plot and as he the Respondent had collected building materials which were being stolen he had, with the permission of the authorities, constructed four rooms on the understanding that they would be included in the map of the whole plot when the boundaries came to be fixed. It was also mentioned in that letter that a notice had been received by him from the Trust to the effect that those constructions were unauthorised and that they would be demolished on 15 -2 -1952. The letter wound up with the prayer that as the demolition would be very unjust and illegal and would cause irreparable loss to the Respondent, the said constructions might be approved and sanctioned and further proceedings in respect thereof might be stayed. Thereafter the Chairman of the Trust sent a letter dated 9 -2 -1952 (Ex. P. 3) to the Respondent stating that the Secretary and the Assistant Engineer had gone to inspect the site on 7 -2 -1952 and had found the work of unauthorised constructions on he said plot going on in full swing and the Respondent was asked to stop further constructions at once on pain of rendering himself liable to legal proceedings. The Respondent obviously paid no heed to this letter because we find that on 2 -4 -1954 the Trust sent a notice to him through its counsel Sir S. N. Pathak to the effect that the Respondent had "without execution and completion of the lease taken possession of the plot and started making constructions over it without the permission of the Trust, "and asked him to hand over possession of the said plot to the Trust failing which a suit would be filed against him. Apparently the Respondent did not pay any heed to this notice for we find that sometime afterwards the Chairman of the Improvement Trust sanctioned the prosecution of the Respondent for making the unauthorised constructions without permission, and for committing breach of bye -law No. 30 (h) (vi) page 8l of the Allahabad Municipality Part 1 rule and bey -laws corrected upto 31 -5 -1936 and the complaint was forwarded to the ADM Allahabad for taking cognizance Under Sec. 191 (1) (c) of the Code of Criminal Procedure In due course the case came up for trial before Sri R. N. Lal, SDM Chail. After recording evidence and hearing arguments he dismissed the complaint on the ground that the prosecution had failed to prove that the bye -law of the Alld. Municipality on which they relied had been made applicable to the Alld. Improvement Trust by any enactment or notification. As stated above both the appeal and the connected revision are directed against this order of dismissal passed by the learned SDM.