MUNICIPAL COMMITTEE, MANDSAUR Vs. AHMED KHAN ALIAS CHOTEKHAN

JUDGEMENT

(1.) THIS is an appeal by the complainant, Municipal Committee, Mandsaur, with special leave under Section 417(3), Code of Criminal Procedure from the judgment of acquittal of the Respondent, himself, one of the three accused persons put up for trial in the case. The offence was of the violation of a condition about location with reference to a public street, in the sanction given for rebuilding his house imposed under Section 112(2) of the Madhya Bharat Municipalities Act, 1964. The charge was under Section 112(7).

(2.) THE order, that the accused should leave out without building a strip of land two and a half feet wide which belongs to them, was illegal and therefore it was unnecessary for the accused to comply with it. They are fully entitled under the Constitution of India to build on their own land as they have done. If in fact the municipality needed a strip of land two and a half feet wide belonging to the accused for the sake of the road, then it should have acquired it in accordance with the proceedings laid down in the Municipalities Act. The powers given to it under this Act are limited and the municipality could exercise them only in the manner provided in it.

(3.) THE facts are mostly admitted. Within the Mandsaur Municipality, the Respondent's family have a piece of land by the side of a street on a part of which they seem to have had an old house. The family consists of two brothers and the mother, but it is common ground that the person who was in charge of the building -work was the elder of the two sons, that is, the present Respondent, though all the three members were proceeded against before the Magistrate. As required by Section 112(1), he applied for sanction and got it subject to the condition imposed under Section 112(2), that the house -front, which is about 35 feet long, should, at all points, be twenty -one and a half feet away from the middle -thread of the public street adjoining. It appears that at about that time there was a proposal to widen the road at that place; but we are not directly concerned with it. The strip of land twenty -one and a half feet wide between the middle -thread of the road and the permitted house -front was, in part existing road and, in part, land belonging to the Respondent. It might even be that the municipality had plans for acquiring, for the purpose of road -widening, part of the Respondent's land in the manner provided in Section 108 of the Act; but the condition about location has, as such, nothing to do with the ownership. Whatever width of the intervening land belonged to the owner, the order of the Council was, that it should not be built over and must be left open. This is called a "set back" of the house. The Respondent built over the entirety of what he considered to be his land, but contravened the condition, because at one end the house front came to within nineteen feet of the middle -thread of the street. At the other end, however, the set -back was in accordance with the Committee's order. The surveyor as well as the other witnesses are clear about this, this is also shown on the map. It was not suggested to them that there had been a mistake in the measurement nor was a request made to have a re -measurement. Though the Respondent stated in his statement under Section 342, Criminal Procedure Code, that he obeyed with the order; he himself did not assert that he had left twenty -one and a half feet all along the house -front. There is no difficulty or uncertainty in the measurement; the parties as well as the Magistrate proceeded on the assumption, which I find is fully justified by the evidence, that the order has been contravened to the extent mentioned already.