1. This is an application for revision against the acquittal of non-applicant 1.
2. Non-applicant 1 was prosecuted at the instance of the applicant, the Municipal Committee, Umarkhed, for the contravention of Section 15(1)(a), C.P. & Berar Town Planning Act, (Act 67 of 1948). He was convicted under Section 15(1)(c) and sentenced to pay a fine of Its. 100/- and in addition Rs. 52-12-6 as expenses incurred by the Municipal Committee.
3. Non-applicant 1 preferred an appeal before the Additional Sessions Judge, Yeotmal, who acquitted him and also set aside the order for payment of Rs. 52-12-0 to the Municipal Committee.
4. The first point urged in this application is that the case having been started on the complaint of the applicant, the applicant was entitled to be heard during the appeal and that the order setting aside conviction and sentence passed on non-applicant and also setting aside the order requiring non-applicant to pay Rs. 52-12-0 to the Municipal Committee on account of expenses without hearing the applicant is illegal. In support of this contention reliance was placed upon two un-reported decisions of this Court and the decision of Grille J. in-Balwant Ganesh v. Motilal Nathunam AIR 1938 Nag 144 (A). Grille J. did express the opinion in that case that in an appeal arising out of a complaint case it would be right and proper to hear the complainant. He has not said that failure to hear him would render the appellate order void. Indeed, he has pointed out that Section 422, Criminal P.C. requires the Court to give notice to the State but does not require that notice should be given to the complainant in n case arising out of a complaint. Thus, while, it is proper and desirable to give notice to a complainant in a complaint case, and more particularly where compensation or costs are given to a complainant, failure of the appellate Court to give such notice would not render an appellate order illegal or void.
In this connection I may refer to the decision of Horwill J. in-Mariasoosai v. Arokkiam AIR 1942 Mad 465 (B) with which I am in respectful agreement. I would also point out that in-Mangalchand v. Mohan AIR 1917 Nag 122 (C) in which a person to whom compensation was awarded by the trying Magistrate complained, in revision, against the reversal of that order by the appellate Court on the ground that he had not been given a notice of the appeal. Following-Ambakkagari v. Easappa 33 Mad 89 (D), Mittra, A.J.C., held that while it is desirable to give notice of an appeal to the person to whom compensation has been awarded, failure to give such notice does not amount to an illegality. A contrary view has been taken by my brother Hemeon J. in-89 Rasool v. Birjoo Cri. Revn. No. 439 of 1948, D/- 10.1.1949 (Nag) (E), but with great respect to him I would prefer to adopt the view taken by I-Forwill J., which, if I may say so, accords with the view underlying the decision in-Mangalchand's case (C). Thus, in my opinion, the order of acquittal, though passed without hearing the applicant, is not illegal or in any way void.
5. The order of the Additional Sessions Judge Is also attacked before me on merits. For appreciating the argument on which the attack is based it is necessary to refer to the facts of the case. Non-applicant 1 applied to the Municipal Committee, Umarkhed, on 16.7.1948, for grant of permission to build a house on plot No. 3/3. The Municipal Committee kept the application pending for a long time. Whereupon non-applicant 1 preferred an appeal to the Deputy Commissioner who remanded the case to the Municipality directing it to decide the application on merits without undue delay. The Municipal Committee rejected the application on 28.6.1949 on the ground that it had already passed a resolution on 29.4.1949 applying the provisions of the Town Planning Act to Umarkhed and that the permission cannot be granted without the approval of the Assistant Town Planning Export. Non-applicant 1 thereupon preferred an appeal before the Deputy Commissioner who allowed it on 10.11.1949 and granted permission to non-applicant 1 to build a house according to the plan submitted by him.
6. In the C.P. Gazette of 11.11.1949 was published a declaration of intention of the Municipal Committee Umarkhed under Section 9, Town Planning Act of applying the provisions of the Act to Umarkhed.
7. Non-applicant 1 started the digging of foundation of his house on 8.12.1949 whereupon the Municipal Committee sent him two notices, one through its peon and another by registered post on 12.12.1949 asking non-applicant 1 to stop work. He, however, refused to accept both the notices. It may be mentioned that the order of the Deputy Commissioner granting permission to non-applicant 1 was eventually set aside by the Board of Revenue and that an application by non-applicant 1 under Article 226 of the Constitution to this Court for quashing the order of the Board of Revenue was dismissed.
8. The Municipal Committee then prosecuted non-applicant 1 for carrying on the work despite publication of the notification and without securing a certificate from the local authority for commencing the work. Non-applicant 1 was convicted find sentenced as stated above and was also ordered to pay expenses of the Municipal Committee. He preferred an appeal from his conviction and sentence and the order regarding payment of expenses, and his appeal was allowed by the Additional Sessions Judge. The ground on which the learned Additional Sessions Judge set aside the decision of the learned Magistrate are, firstly, that the provisions of Section 15, Town Planning Act do not supersede a permission granted before the declaration of intention by a local authority; secondly, that publication of intention as required by Rule 5 has not been proved and finally that the expenses incurred by the applicant in prosecuting the case could not properly be awarded under Section 15(1)(d), Town Planning Act.
9. As regards the first ground the learned Counsel for the applicant says that the language of Clause (a) of Section 15(1), Town Planning Act clearly shows that the prohibition enacted by it applies to every case of commencement of erection of a building by a person. Therefore, according to him, the fact that non-applicant 1 secured permission under the Municipalities Act to erect a building before the publication of the declaration is wholly immaterial. I think that the interpretation placed by the learned Counsel on the provision is correct. No doubt, as the learned Counsel for non-applicant 1 points out, the provision of Chap. XI, C.P. Municipalities Act which deals with the subject of granting sanction for the erection of buildings, has not been sought to be excluded under Section 3(k), Town Planning Act. Even then, the effect of the continuance in force of the provisions would only be that till the Government actually sanctions a scheme under the Town Planning Act the Municipal Committee will have no right under Section 99(2), Municipalities Act to refuse permission to erect a building in an area included in the scheme. But despito the grant of permission by the Municipal Committee under the Municipalities Act a disability would operate 'upon the person' to whom permission is granted to commence the erection or continue with the erection of a building.
10. As regards the next point I am afraid I cannot accept the argument advanced on behalf of the applicant. The provision in the Act relating to publication of a declaration of intention is contained in Section 9(2) which runs thus:
Within twenty-one days from the date of such. declaration (hereinafter referred to as a declaration of intention to make a scheme), the local authority shall despatch a copy thereof for publication in the Gazette and shall publish it in the prescribed manner and shall apply to the Provincial Government for sanction for the making of such scheme.
It requires three things to be done; (i) despatch for publication within 21 days of the declaration in the official Gazette, (ii) publication thereof in a manner prescribed by the Government and (iii) application to Government for sanction to the scheme. Section 15 of the Act comes into play only 'when a local authority has published a declaration of intention to make a scheme'. Publication does not mean publication in the Gazette only as is contended by the learned Counsel for the applicant. It comprises of both the modes of publication referred to in Section 9(2). This is made clear beyond doubt by Rule 5 framed under Section 63(1), Town Planning Act which runs thus:
A local authority, in addition to publishing a declaration of intention to prepare a town-planning scheme in the Gazette, shall further publish the declaration by means of an advertisement in one or more newspapers published in the regional language circulating within the jurisdiction of the local authority, and by posting copies of the advertisement in prominent places in or near the area proposed to be included in the scheme and at the offices of the local authority and the Town Planning Department, C.P. and Berar. The advertisement shall contain the local authority's resolution making such declaration, and shall intimate that the plan of the area proposed to be included in the scheme and the surrounding lands is open for public inspection at the head of the local authority during office hours.
Publication in the prescribed manner cannot be presumed but must be proved. There is no proof of publication according to the provisions of this rule. In the circumstances the learned Additional Sessions Judge was right in holding that non-applicant 1 could not be convicted under Section 15(1)(c), Town Planning Act.
11. As regards the last ground I agree with the learned Additional Sessions Judge's interpretation of Clauses (c) and (d) of Section 15(1) of the Act, to the effect that expenses incurred in prosecuting a person who is said to have contravened Section 15(1)(a) cannot be awarded thereunder.
12. For these reasons I uphold the acquittal of non-applicant 1 and dismiss this application for revision.