S.D. Khare, J.
1. This appeal is directed against an order dated 12th September, 1967, passed by the learned Sessions Judge. Meerut, setting aside an order of conviction passed against Darshan Lal (respondent) Under Section 13 (1) (b) of the U. P. Roadside Land Control Act (Act 10 of 1945) (hereinafter referred to as the Act).
2. The facts leading to this appeal are simple. In the year 1965 it was noticed that Darshan Lai had constructed a building close to Delhi-Mussoorie Road between miles 38 and 39. The Delhi Mussoorie Road had been duly notified under the provisions of the Act The construction made by the respondent was within controlled area declared Under Section 3 of the Act. By an order dated 8th November. 1965. Darshan Lai was convicted and sentenced to pay a fine of Rs. 200/-, Darshan Lai, however, did not remove the unauthorised construction after his conviction. On being prosecuted again Under Section 13 of the Act one year later, he took the plea that the building in question did not fall within the controlled area. That plea was negatived, because it had already been decided in an earlier case that the building was within the controlled area, as declared Under Section 3 of the Act. On the assumption that the non-removal of the unauthorised construction after conviction amounted to a continuing offence under the Act, the Sub-Divisional Magistrate by his order dated 10th April. 1967, convicted Darshan Lai (respondent) Under Section 13 (1) (b) of the Act, and sentenced him to pay a fine of Rs. 200/- and a further fine of Rs. 2/- only from the date of his previous conviction, i.e., 8th November, 1965, to the. - date of his second conviction. This fine amounted to Rs. 1,038. On an appeal being filed before the learned Sessions Judge, Meerut, the conviction and sentence were set aside on the finding that there was no provision in the Act which made the non-removal of an unauthorised construction after the first conviction to be a continuing offence. The Government Appeal is directed against that order setting aside the order of conviction and sentence which had been passed against Darshan Lai by the Sub-Divisional Magistrate, Meerut.
3. The purpose of the Act was to control the haphazard construction of buildings along the roads which had been notified Under Section 3 of the Act. After the notification had been made nobody could make any construction or make or extend any excavation or lay out any means of access to the road in a controlled area, except with the permission of the Collector in writing (vide Section 5 of the Act). Section 6 of the Act provided for an application for permission to build etc. and the grant or refusal of the said permission by the Collector. A right of appeal was given to any person aggrieved by an order of the Collector Under Section 6 of the Act (vide Section 7 of the Act). Section 12 of the Act provided for a prohibition on use of any land as a brick field etc without any licence within a controlled area. Then came Section 13 of the Act. which reads as follows:
13 (1) Any person who:-
(a) erects or re-erects any building or makes or extends any excavation or lays out any means of access to a road in contravention of the provisions of Section 5 or in contravention of any conditions imposed by an order Under Section 6 or Section 7, or
(b) uses any land in contravention of the provisions of Sub-section (1) of Section 12, shall be punishable with fine which may extend to five hundred rupees and, in case of a continuing con- travention, with a further fine which may extend to fifty rupees for every day after the date of the first conviction during which he is proved to have persisted in the contravention.
(2) Without prejudice to the provisions of Sub-section (1), the Collector may order any person who has committed a breach of the provisions of the said sub-section to restore to its original state or to bring into conformity with the conditions which have been violated, as the case may be, any building or land in respect of which a contravention such as is described in the said Sub-section has been committed, and if such person fails to do so within three months of the order, may himself take such measures as may appear to him to be necessary to give effect to the order, and the cost of such measures shall be recoverable from such person as arrears of land revenue.
4. On a perusal of Section 13, which has been quoted above, it becomes clear that the erection or re-erection of a building within the controlled area has been made punishable, but the non-removal of building already erected before first conviction Under Section 13 has not been made punishable. In other words, a mere occupier of the building in respect of which an order Under Section 13 has been passed cannot be held liable Under Section 13 of the Act.
5. In the present case the erection of the building was complete before the date of the first conviction, and for the offence of erection of the building Darshan Lai had already been punished by the order of the Sub-Divisional Magistrate passed on 8th November, 1965.
6. The Magistrate was of the view that inasmuch as Darshan Lai had not removed the unauthorised construction after his conviction, it must be deemed that he was guilty of a continuing contravention within the meaning of Section 13 of the Act. There is nothing in the language of Section 13 of the Act to Justify that conclusion. On the other hand. Section 13 of the Act makes it clear that it was only in cases of continuing contravention that a further fine of Rs. 50/- for every day could be imposed. In view of the fact that the mere occupation of a building in respect of which an order might have been passed Under Section 13 of the Act, earlier, particularly when the act of erection of the building was complete before the date of the first conviction has not been made an offence Under Section 13 of the Act, it could not be said that the mere non-removal of the building after the date of the first con- viction constituted a continuing contravention within the meaning of Section 131 of the Act. i
7. The learned Government Advocate has relied upon the cases of the Public Prosecutor v. Veerabhadrappa Lakshminarayana Setty : AIR1953Mad204 and State v. A. H. Bhiwandiwalla : (1956)IILLJ153Bom .
8. Both the cases are under the Factories Act. In the Madras case, the Inspector of Factories had inspected a factory on 5th October, 1950, and found that the accused had failed to construct a pucca dust-proof husk chamber as required by Section 14. The Inspector visited the factory again on 24th January, 1951, when also he found the above defect, and made a complaint on 15th March, 1951, for an offence Under Section 92 of the Factories Act. The question arose whether the complaint was barred by limitation as being beyond three months of the first visit of the Inspector on 5th October, 1950, and it was held that the offence committed was a continuing one.
9. In the Bombay case the accused, an occupier of a salt factory, which was in existence prior to the commencement of the Factories Act, 1948, was called upon to comply with the requirements of the Factories Act by the Inspector of Factories when he visited the factory on 10th March, 1952. On a second visit of the Inspector on 23rd May, 1953/ it was found that the accused- had taken no steps to comply with the requirements. The accused was thereupon prosecuted within three months from 20th May. 1953, but beyond three months from 10th March, 1952, Under Section 92 of the Factories Act for having failed to apply in Form No. 2 for registration of the factory and grant of licence as required by Section 6, read with Rule 4 of the Bombay Factory Rules, and also for failing to give a written notice of occupation in Form No. 3, as required Under Section 7 (1) of the Factories Act and the rules made thereunder.
10. In both the cases the prosecution was for failure to do something which was required under the Factories Act and the rules framed thereunder. Inasmuch as the failure continued, it could very well be said to be a continuing offence. The facts of the present case are entirely different. Here the erection of the building was made punishable Under Section 13 of the Act, and after the erection was complete, nothing i else remained to be done. The Act does not require the occupier of the building, for the erection of which he has been once convicted, to remove it at once. There is nothing in the provisions of the Act to indicate that in case the person who had erected. the building fails to remove it, he shall be made liable to be convicted again Under Section 13 of the Act, On the other hand Sub-section (2) of Section 13 clearly provides that in case a person fails to remove the building for the erection of which he has been convicted, the same can be removed by the Collector, and. the costs realised from the person, who had erected the i building, as arrears of land revenue.
11. There is no force in this appeal, and it is dismissed.