NAGAR PALIKA PARISHAD MORENA Vs. NEMEE CHAND

JUDGEMENT

(1.) THE appellant Nagar Palika Parishad, Morena has filed this Criminal appeal under Section 378, Cr. PC against the judgment dated 2-8-1999 passed by the Chief Judicial Magistrate, Morena in Criminal Case No. 541/89, whereby acquitted the respondent from the charges under Sections 187 (8) and 223 of the municipalities Act.

(2.) NAGAR Palika Parishad, Morena filed a complaint before the Chief judicial Magistrate, Morena under Sections 187 (8) and 223 of the municipalities Act, 1961, in which it was mentioned that the respondent has made encroachment over the land of the Nagar Palika and has raised construction without obtaining permission from the Nagar Palika and has constructed three shops on the land reserve for foot-path and drain. The Trial court acquitted the respondent and dismissed the complaint on the ground that the Municipality has failed to prove that the open land belongs to the municipality, nor has examined Yogendra Prasad, Sub-Engineer, who had taken the measurement on spot, nor has produced any documentary evidence about ownership on record and after giving benefit of doubt acquitted the respondent against which appellant Municipality has filed this appeal, after obtaining leave from this Court.

(3.) I have heard the learned Counsel for the parties and perused the evidence on record. Ramswaroop Kashyap (P. W. 1) has categorically stated that rough sketch map was prepared after taking measurements on spot, which is exh. P-l and he has marked the encroached portion by red colour and the land belongs to Nagar Palika and reserved for footpath and drain. The construction has been raised on the land of footpath and drain. From the evidence of ramswaroop Kashyap (P. W. 1) it is clear that if the construction has been raised on the land reserved for drain and footpath, the same is illegal as the land of drain and footpath belong to the Municipality and the learned Trial Court has overlooked the legal provisions, specially the provisions of Sections 200 and 212 of the Municipalities Act, 1961 according to which all sewers and drains vest in the Council and under Sections 187 and 223 their breach and encroachment thereon is punishable offence. Section 223 also prohibits the obstruction on streets and therefore under the aforesaid legal position, the Municipal Council was only required to prove that the land where the construction has been made is the land of drain and footpath. Under the law, the Municipal Council is empowered to remove and demolish the aforesaid encroachment and construction after due notice to the respondent and enquiry. If it is proved by the Council by producing the evidence beyond reasonable doubt that the construction has been raised on drains and footpath, the same is liable to be punished and removed. In such case, burden also lies on the respondent to prove that he has obtained permission from the Competent Authority before raising any construction thereon and has got the map duly sanctioned and if no permission is produced in the Court, the Court can also draw adverse inference against him. Prima facie it appears that the learned Trial Court has committed illegality in recording the finding and dismissing the complaint without considering the provision of law. Thus, it appears that there is clear violation of provisions of sub-section (8) of Section 187 and Section 223 of the municipalities Act. However, considering the factual aspect and legal position on record, this appeal is allowed and the case is remanded to the Trial Court to decide the case afresh. Trial Court shall provide opportunity to the municipality to examine Yogendra Prasad Rawat Sub-Engineer and to produce the relevant record and shall also provide opportunity to the respondent to produce evidence in rebuttal, if any and thereafter shall decide the complaint on merits in accordance with law.