URBAN IMPROVEMENT TRUST Vs. NARBADA DEVI

JUDGEMENT

(1.) THIS is an appeal by the Urban Improvement Trust, Alwar against an order of acquittal passed by the learned Judicial Magistrate No. 1, Alwar. The facts in brief are that a scheme No. 11 was published under Section 32 of the Raiasthan Urban Improvement Trust Act, 1959 (hereinafter referred to as 'the Act') by the Urban Im- provement Trust, Alwar. The accused non-petitioner Smt. Nanbada Devi made certain constructions over the land covered by Scheme No. 11 and a report in this regard was submitted by the Inspector on 22nd September. 1971. In pursuance to the above report of the Inspector, a notice under Section 90 of the Act, was issued on 23rd September, 1971, in the name of Smt Narbada Devi wife of Shri Vishnu Datt Sharma, Pat-wari. Hazuri Gate, Alwar. This notice was accepted by Shri V. D. Sharma husband of Smt. Narbada Devi on 29th September, 1971. As the accused non-petitioner d (id not stop the constructions, a complaint was filed, against her under Section 91 of the Act. The learned Magistrate, recorded the statements of Brij Nandan Tiwari P. W. 2, Kishori Narain PW 1, and Hari Shaian PW 3 from the side of the complainant and statement of the accused was recorded under Section 342 Cr. P. C. The accused examined Munnilal DW 1, Nand-lal DW 2. Munshi Lai DW 3, and Kanhaiya Lai DW 4 in defence. After hearing arguments the learned Magistrate, though accepted the case of the prosecution that the accused had made constructions in violation of Scheme No. 11 but took the view that notice Ex. P3 dated 23rd September. 1971 issued under Section 90 of the Act, was not properly served on the accused and as such she could not be held guilty under Section 91 of the Act. Aggrieved against the aforesaid order of acquittal passed by the learned Magistrate, the Urban Improvement Trust has filed this appeal.

(2.) IT is contended by Mr. Goyal, learned Counsel for the Trust that the accused was living with her husband Shri Vishnu Dutt, and the notice was properly issued in the name of the accused but when the process server PW 3, Hari Bhaian, went on the spot, the accused herself told that the notices may be given to her husband and in these circumstances if the notice was taken by the husbhnd of the accused it was a sufficient and valid service of notice on the accused. It is also argued that Vishnu Datt Sharma, has not been produced to rebut the statement of Hari Bhaian PW 3 and the learned Magistrate committed a serious error of law in holding that the service of notice on the accused was not properly made,

(3.) MR. Jain, appearing on behalf of the accused has contended that it was incumbent on PW 3 Hari Bhajan, to have served the notice on Smt, Narbada Devi herself when she was present and the husband had no authority to accept notice on her behalf. It is a question of fact whether the service of notice was effected on Narbada Devi or not and it cannot be interfered in appeal by this Court,