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Municipal Corporation Through Municipal Commissioner Vs. Shankar S/O Haribhau Jadhav and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai High Court
Decided On
Case NumberCriminal Appeal No. 68 of 1985
Judge
Reported in1986(2)BomCR38
ActsMaharashtra Regional and Town Planning Act, 1966 - Sections 43, 52, 53, 54, 142 and 152; Code of Criminal Procedure (CrPC) , 1973 - Sections 468
AppellantMunicipal Corporation Through Municipal Commissioner
RespondentShankar S/O Haribhau Jadhav and anr.
Appellant AdvocateK.G. Navandar, Adv.
Respondent AdvocateV.B. Patil, Adv. for respondent No. 1 and ;C.G. Solshe, Adv. (appointed by the Court) for respondent No. 1
DispositionAppeal allowed
Excerpt:
.....- - what is to be noted in this connection is that he filed the complaint in his capacity of the chief officer as well as the planning authority for the city of aurangabad. navandar the learned advocate appearing for the appellants corporation has raised an extremely interesting and ingenious point before me. patil appeared and stated that he had already filed vakalatnama on behalf of the accused but the office has wrongly failed to show the same. 13. i fail to see any justification even for this point. the power to sanction and the power to complain. but when both the powers, to sanction and to complain, reside in the same officer, the signing of the complaint before filing of the same itself can be considered to be accord of sanction. all that he must see to it is that sanction or..........of the maharashtra regional and town planning act 1966, (hereinafter referred to as 'the town planning act'), arises for consideration in this appeal.2. respondent no. 1 (who will be referred to hereinafter as the accused) is owner and occupant of a plot situate at paharsinghpura, aurangabad within the territorial limit of the municipal corporation, aurangabad.on 15-12-1980, one of the officers of the aurangabad municipal corporation (hereinafter referred to as 'the corporation') noticed some construction being carried on by the accused upon the said plot of land unauthorisedly. he informed this fact to the chief officer and the chief officer issued a notice dated 15-12-1980 addressed to the accused calling upon him to stop the construction and to remove the unauthorised.....
Judgment:

Sharad Manohar, J.

1. Quite an important question relating to the interpretation and functioning of the Maharashtra Regional and Town Planning Act 1966, (hereinafter referred to as 'The Town Planning Act'), arises for consideration in this appeal.

2. Respondent No. 1 (who will be referred to hereinafter as the accused) is owner and occupant of a plot situate at Paharsinghpura, Aurangabad within the territorial limit of the Municipal Corporation, Aurangabad.

On 15-12-1980, one of the officers of the Aurangabad Municipal Corporation (hereinafter referred to as 'the Corporation') noticed some construction being carried on by the accused upon the said plot of land unauthorisedly. He informed this fact to the Chief Officer and the Chief Officer issued a notice dated 15-12-1980 addressed to the accused calling upon him to stop the construction and to remove the unauthorised constructions within one day from the receipt of the notice. It is the contention of the prosecution that the notice dated 15-12-1980 sent by the Chief Officer was sought to be served upon the accused on 17-12-1980; but that he refused to accept the service and hence the notice was served upon him by affixing the same upon the site of the construction.

As will be presently pointed out, the Chief Officer went into quite a delightful slumber for a full period of five months thereafter. It was only on 14-5-1981 that the Chief Officer himself accorded his sanction to prosecute the accused for offences under sections 53 and 54 of the Town Planning Act. Thereafter, the Chief Officer himself filed a complaint against the accused for offences under sections 52, 53 and 54 of the Town Planning Act. What is to be noted in this connection is that he filed the complaint in his capacity of the Chief Officer as well as the Planning Authority for the city of Aurangabad.

3. It is unnecessary to set out the various contentions raised by the parties in the proceedings. It is enough here to state that the evidence was led by the Corporation to prove the service of the notice upon the accused dated 15-12-1980 and to show that the receipt of the notice was refused by the accused and that the same had to be served upon the accused only by affixing the same on the construction site.

4. The Appellate Court accepted the contention of the prosecution in all other respects. The fact that the accused had been in fact carrying on construction unauthorisedly on the day in question is not disbelieved by the trial Court. Likewise the fact that the receipt of the notice was refused by the accused is not very seriously doubted by the trial Court. But the trial Court came to the conclusion that so far as the service of the notice was concerned , the mode of service could not be said to be lawful if the notice was affixed on the construction site. It appears from the judgment of the learned Magistrate that according to him the notice was affixed after refusal by the addressee at the site of his residence the service would be valid that if the affixing was done on the construction site, the service suffered from defect. In this view of his approach, the learned Magistrate held that since the service of notice was the condition precedent for prosecution under sections 53 and 54 of the Town Planning Act, the accused could not be convicted under those sections.

However, the learned Magistrate held that section 52 as such required no previous service of notice. He held that the fact that the unauthorised construction was in fact being carried out by the accused was sufficiently established by the prosecution. He, therefore, convicted the accused of offences under section 52(1) read with section 43 of the Town Planning Act and sentenced him to pay a fine of Rs. 1000/- and in default undergo simple imprisonment for 30 days.

5. In the appeal filed by the accused, the Sessions Court has taken the view that no prosecution could lie against the accused or any person for offences under sections 52, 53 and 54 of the Town Planning Act unless the Planning Authority had given its sanction to the prosecution as required by section 142 of the Town Planning Act. The learned Addl. Sessions Judge took the view that in the instant case the sanction dated 14-5-1982 was accorded by the Chief Officer only to the prosecution for offences under sections 53 and 54 of the Town Planning Act and that for the offence under section 52 there was an absence of indispensable sanction on the part of the Chief Officer. Since according to him sanction was a condition precedent for the prosecution, the learned Judge held that the conviction of the accused under section 52 was unjustified in law. The appeal was, therefore, allowed by the learned Additional Sessions Judge and he set aside the order of conviction of the accused even for offence under section 52 of the Town Planning Act.

6. In this appeal against the acquittal of the accused Mr. Navandar the learned Advocate appearing for the appellants Corporation has raised an extremely interesting and ingenious point before me. He did not dispute the findings of fact recorded by both the courts below nor did he call in question the view taken by the Sessions Court to the effect that accord of sanction to the offence under section 52 was a condition precedent for prosecution of offenders for offence under that section. But he invited my attention to the fact that the complaint in this case is filed by no other officer of the Corporation than the Chief Officer himself. He invited my attention to section 152 of the Town Planning Act and pointed out that certain functions of the Planning Authority have been in fact delegated by that section to the Chief Officer and so far as the functions under these sections are concerned the Chief Officer is the de facto and de jure Planning Authority as recognised by said section 152. The submission of Mr. Navandar was that a sanction is necessary for the prosecution if the complaint is filed by any officer other than the Planning Authority. In that case the sanction has got to come from some other Higher Authority which must also be a Planning Authority. But when the Planning Authority itself lawfully files the complaint, it must be held that the requirement of the sanction has been complied with. He contended that it is not as if that the complaint is to be filled after the lapse of any particular period from the date of sanction. The sanction and complaint could be given and filed on the same day and at the same time. If that is so, contends Mr. Navandar, the filing of the complaint must itself be deemed to be also the accord of the sanction.

7. Mr. Navandar further pointed out that under section 152 of the Town Planning Act, which is the delegating provision, the Chief Officer is constituted the Planning Authority by virtue of the delegation in respect of the provisions contained in sections 24, 25, 43, to 46, 49, 51, 53, 55, 56, 58, 89, 90, 107, 112, 135 and 142. There is a noticeable omission of section 52 in that section. Mr. Navandar himself warded off a likely argument. There was a likelihood of argument envisaged by him that since this section 52 is not noticeably excluded from the array of sections mentioned in the said section 152, the Chief Officer was not entitled to order prosecution for offence under section 52. Mr. Navandar contended that the omission of section 52 from the array of sections mentioned in section 152 does not mean and cannot mean that the Chief Officer cannot accord sanction for offence under section 52 of the Town Planning Act. He pointed out that sanction is to be accorded by the Chief Officer for offences under various sections under the Act and the power is given to sanction under section 142 of the Act. Under section 142 the Planning Authority can accord sanction for prosecution in respect of various offences. The array of provisions mentioned in section 152 does not exhaust the various provisions under which the Planning Authority can sanction prosecution of offenders under the Act. Under section 142 the Planning Authority could have accorded sanction for offence if any under section 52 although under section 52 by itself no function is to be performed by the Authority as such. There is no provision under section 52 of the Act requiring the Chief Officer to give any notice to the offenders. The entire function under section 52 is to be performed by the Court not by the Chief Officer. It is only when the Chief officer notices the offence under section 52 that he is empowered to give notice under section 53 of the Act and he may further prosecute the offenders for non compliance with the notice. Under sections 53 and 54 of the Town Planning Act he has definite function to perform. No such function to be performed by the Chief Officer is contemplated by section 52. This is the reason why section 52 is studiedly omitted from the array of sections mentioned in section 152. Significantly enough since section 142 finds place in section 152 the power to sanction offence under section 52 is very much there delegated to the Chief Officer.

8. There was a second point urged by Mr. Navandar. According to him in the sanction to prosecute an offender for offence under sections 53 and 54 of the Town Planning Act is implicit the sanction for prosecution for offence under section 52. There is quite a force in this argument ; but I do not propose to deal with the same in this judgment, because, to my mind, the appeal has got to be allowed on the first point urged by Mr. Navandar.

9. When the appeal reached for hearing, I found that there was no appearance on the part of the accused shown on the board and hence I appointed Mr. S.G. Solshe. But when the appeal reached for hearing Mr. V.B. Patil appeared and stated that he had already filed Vakalatnama on behalf of the accused but the office has wrongly failed to show the same. Whatever that may be, in the particular circumstances Mr. Solshe appeared for the accused as amicus curaie and hearing of the appeal was adjourned to enable him to study the case. I received quite some assistance from Mr. Solshe in this appeal and the Court is indebted to him in that connection. But I also allowed Mr. Patil to argue the case. Mr. Patil fairly stated that after the argument of Mr. Solshe he had no further point to urge on behalf the accused.

10. I answer to the main point Mr. Solshe contended that the provisions of section 52 apply to the plot which is included in the Town Planning Scheme. He invited my attention to section 2(21) of the Town Planning Act which runs as follows :---

''Plot' means a portion of land held in one ownership and numbered and shown as one plot in town planning scheme.'

Relying upon this definition Mr. Solshe contended that no material was brought on record by the prosecution to prove that the land upon which the accused had been making construction had been included in the Town Planning Scheme as such.

The simple answer to Mr. Solshe's plea is that section 52 of the Town Planning Act does not refer to any plot at all. It refers to development etc. of any 'land'. The technical word 'plot' is not used anywhere in said section 52. The technical objection, therefore, is devoid of any substance.

11. The second point urged by Mr. Solshe was that under section 43 of the Town Planning Act, the land in question must form a part of the development plan. He contended that there was nothing in the record to show that this plot is part of the development plan. To my mind, this objection is also hyper-technical. Under section 43 of the Town Planning Act, all the lands included in the Municipal Territory, have got to be included in the development plan. The Court must take judicial note of the fact that the development plan is prepared for every Municipal area. In fact at no stage has the accused questioned the fact that his land is included in the development plan. It is impossible for me to accept the above technical objection of Mr. Solshe.

12. His third point is that if the filing of the complaint by the Chief Officer, as the Planning Authority, was itself to be regarded as accord of sanction, then section 142 of the Act would be rendered otiose.

13. I fail to see any justification even for this point. It is not as if that the complaint has got to be filed by the Chief Officer alone and not by any one else. Likewise, it is not as if that every offence under the Act is included in the provisions listed in section 152. For example, in the instant case, some other officer who is not constituted the Planning Authority under said section 152 could as well have filed the instant complaint and, in that event, if the complaint was not backed by the section, the prosecution would be bad by virtue of the provisions of section 142. I do not see any reason to take the view that by holding the complaint to be tantamount to sanction, section 142 of the Town Planning Act is made otiose. To my mind, this argument stems from the confusion of the factum of the sanction with the method of the sanction. The sanction is injuncted, but no particular method is prescribed. The Chief Officer has a two-fold power: the power to sanction and the power to complain. His complaint, therefore, can itself be a sanction, because he can exercise both these powers simultaneously. In the cases of the other officers or authorities in whom both the powers do not vest, the complaint validly filed by one shall have to be preceded by the sanction validly given by the other. But when both the powers, to sanction and to complain, reside in the same officer, the signing of the complaint before filing of the same itself can be considered to be accord of sanction.

13-A. The fourth point urged by Mr. Solshe was that if the complaint was itself to be construed as sanction it is un-intelligible as to why the sanction was restricted by the Chief Officer only to offences under sections 53 and 54 of the Act.

There may be various reasons why the Chief Officer chose to restrict the sanction only to offences under sections 53 and 54. In the first place, it might be result of inadvertence; or else if might be that on second thought he felt that sanction for offence under section 52 was also warranted. Moreover, it was open for the Chief Officer to accord his sanction to the complaint in respect of some offences by one order and for some additional offences by a subsequent order. There is nothing in the Act disabling him from doing so. All that he must see to it is that sanction or sanctions in respect of each of the offences complained about must precede the filing of the complaint. His signature on the complaint will necessarily precede its filing and hence it cannot be said that before filing complaint, the Chief Officer had not applied his mind to the facts and to the legal position. His act of signing the complaint will, therefore, be tantamount to accord of sanction. The filing of the complaint which will follow this accord of sanction will, therefore, be perfectly within the four corners of law.

In this connection, it is to be noted that basically the essential requirement for both, the sanction and the complaint, is the complete application of mind by the authority granting the sanction and filing the complaint. While granting the sanction no doubt the Chief Officer applies his mind. But when he himself files the complaint, he goes a step further and there is a two-fold application of mind on his part. The complaint in such a case by the Chief Officer cannot, therefore, be faulted.

14. There is another answer to Mr. Solshe's plea. It is quite possible that on 14-5-1981, when the Chief Officer accorded sanction for prosecution he was not intending himself to file a complaint. If the complaint was to be filed by some officers of the Corporation then the previous sanction by the Chief Officer for enabling Officer to file a complaint would be imperative. It may be that subsequently the Chief Officer himself decided to take the matter in his own hand and to file a complaint personally. In that case the prosecution will be valid even if the sanction accorded by the Chief Officer was not produced by the prosecution at all because the Chief Officer was not himself the complainant. If that would be so, the prosecution case is not affected merely because the earlier sanction was produced by the prosecution and the sanction was restricted only to the offences under sections 53 and 54 of the Town Planning Act.

15. Lastly, Mr. Solshe contended that the very fact that the Chief Officer accorded sanction under sections 53 and 54 of the Town Planning Act but refrained from according sanction under section 52 means that according to the Chief Officer no offence was committed by the accused under section 52 of the Act.

I find no substance even in this contention. If the Chief Officer has himself filed complaint against the accused for offence even section 52 it is futile to contend that he thought that the offence under section 52 was not made out. Moreover, what is important to note is that implicit in the offence under section 53 of the Act is the offence under section 52, because no accused can be said to have committed offence under section 53 unless he has committed also offence under section 52. In a sense the basic offence one under section 52 of the Act of unauthorised construction. The subsequent offences under sections 53 and 54 of the Act stem from the offence under section 52. As a matter of fact this is the argument advanced by Mr. Navandar and as stated above I find quite some force in the said arguments. Although I am not deciding that point in this judgment finally, the legal position is clear answer to the plea raised by Mr. Solshe as mentioned above.

16. Mr. Shelke the learned Additional Public Prosecutor contended that as per section 152 of the Act, when power was not given to the Chief Officer to perform functions under section 52, he was not within his power to file complaint for offence under section 52 even though he had power to sanction 142.

I have already answered the above contention. It will be seen that section 52 itself contemplates no function to be performed by the Chief Officer or by the Planning Authority and contemplates no powers to the Planning Authority or Chief Officer under said section. Section 142 no doubt authorises the Planning Authority to accord sanction for offence under section 52. But that power to sanction is related to the offences by the occupier. The offence itself has nothing to do with any function or power to be performed or exercised by the Planning Authority or by the Chief Officer. It is precisely because of this reason that section 52 is noticeably omitted from the array of sections 152 of the Act.

The appeal, therefore, succeeds.

17. I cannot however part with the judgment without making certain observations as regards the negligent manner in which the Municipal Authorities have been dealing with this matter. The unauthorised construction was noticed by the Officer of the Corporation as early as 15-12-1980. This fact was communicated to the Chief Officer by the Officer on the same day and hence a notice dated 15-12-1980 was in fact issued by the Chief Officer calling upon the accused to stop the construction and to remove the unauthorised construction. There is no reason to believe that the Chief Officer was not informed of the fact that the accused had refused to accept the notice. There is no reason to believe that the Chief Officer was also not informed about the fact that the accused had not removed the unauthorised construction. Still the Chief Officer took as much as a period of 5 months to give sanction and further period of two months to file a complaint against the accused. The unhealthy development of the cities is the direct result of such delay and inefficiency shown by the Municipal Authorities in the matter of enforcement and implementation of the Town Planning Act. Any law abiding citizen could have taken appropriate proceedings in requiring the Chief Officer to perform his duties expeditiously. To my mind the time has come when the younger generation should put their heart and soul into this function.

18. After the judgment was over Mr. Patil asked for permission from the Court to urge additional point on behalf of the accused. His contention was that the offence of the accused was complete on 15-12-1980. The prosecution launched by the Chief Officer on 28-7-1981 was, therefore, according to him barred by limitation having regard to the provisions of section 468 of the Criminal Procedure Code.

In the first place this point is being aired before this Court for the first time in this appeal against the acquittal and that too after all the arguments were over and even after the judgment was completely dictated.

But that apart, the argument is without substance. The offences which are susceptible to the plea of limitation under section 468 of the Code are offences which are not continuing offences. It is nobody's case that unauthorised construction has been removed by the accused even till this date. The offence, therefore, continues and there is the cause of action for the Corporation to file the complaint against the accused every day until the offences continue. The complaint filed on 28-7-1981, therefore, does not suffer from any bar of limitation. To give to the said section 52 of the Town Planning Act an interpretation by virtue of which the offence will be deemed to have been completed once for all even though the unauthorised construction remains there on the land in the teeth of the objections raised by the Corporation, would be to defeat the very intendment and spirit of the Town Planning Act and the planned development of the cities.

The argument must, therefore, be rejected.

19. As mentioned above, the appeals succeeds. The order of acquittal passed by the Appellate Court is hereby set aside and the order of conviction and sentence passed by the trial Court is hereby restored.

The accused is given 15 days time to pay fine.

In default in the compliance with this order the remaining part of the order passed by the trial Court will come into operation.


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