JAIPUR DEVELOPMENT AUTHORITY, JAIPUR Vs. BANE SINGH

JUDGEMENT

(1.) THE instant appeal is directed against the judgment and order dated 10th May, 1988 passed by the Additional Sessions Judge (Special Court: Essential Commodities Act), Jaipur (for short 'the Appellate Court') whereby the judgment and order dated 12th of June, 1987 passed by the Chief Judicial Magistrate, Jaipur Development Authority, Jaipur, was set aside accepting the appeal of the respondent-appellant (Bane Singh). The relevant facts of the case are that on 16th of December, 1985, Shiv Nath Singh, Enforcement Officer, Jaipur Development Authority (for short 'the JDA') while inspecting Ajmer road site, found the accused-respondent (Bane Singh) raising illegal construction of shops and a basement of 30x30 feet size near New Octroi Post, Ajmer Road, Jaipur without obtaining any permission from the appellant authority. The accused-respondent (Bane Singh) was served with a notice under Section 32 of the Jaipur Development Authority Act, 1982 (for short 'the Act of 1982') for removal of unauthorized construction, who failed to comply with and therefore, a complaint was filed by the Deputy Director, Enforcement, JDA, Jaipur to punish the accused-respondent under sub-section (7) of Section 32 of the Act of 1982.

(2.) IN response to the notice aforesaid, the accused-respondent (Bane Singh) appeared before the Court of Chief Judicial Magistrate and denied the accusation and therefore, was put to trial. The prosecution in support of the charges produced three witnesses and the accused-respondent was examined under Section 313 of the Code of Criminal Procedure (for short 'the Code'). The accused-respondent produced four witnesses in his defence. The Trial Magistrate after taking into consideration the facts and material brought on record held guilty to the accused-respondent (Bane Singh), and convicted him for offence under Section 31(1) and Section 32(7) of the Act of 1982 and imposed a fine of Rs.4,000/- and Rs.2,000/- respectively and in default of payment of fine, to suffer three months simple imprisonment.

(3.) LEARNED counsel for the appellant has assailed the impugned judgment and order dated 10th of May, 1988 being contrary to the mandate of Section 75 of the Act of 1982. Learned counsel for the appellant submitted that the Deputy Director, Enforcement, JDA (Shri V.P. Singh) was fully authorized to institute a complaint against the person, who violated the provisions of Sections 31 and 32 of the Act of 1982 and further, general authorization for instituting the complaint is as good as special authorization. Thus, since there was a general authorization in favour of the Deputy Director, Enforcement, JDA, which was sufficient compliance of the mandate of Section 75 of the Act of 1982, assailing the judgment and order dated 10th of May, 1988 of the Appellate Court, it was submitted that a copy of the order bearing No.JDA/ Estab./6/82/D/393 dated 7th of November, 1983 was shown to the Appellate Court, which authorized the Deputy Commissioner, Enforcement, JDA to institute the complaint. The Court of learned Trial Magistrate took cognizance of the complaint on its satisfaction with reference to competency of the complainant and the accused-respondent did not plead any objection immediately after service of the summon and therefore, the learned Appellate Court was totally in error in entertaining the technical objections of the accused-respondent since neither accused was prejudiced nor any failure of justice resulted and there was no cross-examination on the issue of competency of the authority filing the complaint, while supporting view taken by the Court of Chief Judicial Magistrate vide judgment dated 12th of June, 1987. I have heard the learned counsel for the appellant and the accused-respondent and with their assistance also perused the material available on record.