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Prafulchandra Kantilal Bhojak Vs. Rameshchandra Pharelal Shah and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtGujarat High Court
Decided On
Judge
Reported in(1983)2GLR1353
AppellantPrafulchandra Kantilal Bhojak
RespondentRameshchandra Pharelal Shah and anr.
Cases ReferredVyara Municipality v. Fulchand Shah
Excerpt:
- - after recording the evidence, the learned magistrate was satisfied that no offence was committed by the accused. shelat further argued that on february 10, 1978 when the accused person had gone to the office of the municipality he was orally told by the surveyor that his application was incomplete as he bad net put the date on the plan. shelat, the accused is guilty of contravening the provisions of the said act even after he bad been informed of the rejection of his application and, therefore, the accused is liable to be penalised as laid down in the act......to be acquired for the construction of a town hall. the applicant was also told in the aforesaid rejection letter that the acquisition proceedings will be carried out in due course. the present respondent no. 1 (original accused) carried out the construction en or after 13-3-'78 under the bona fide belief that under the provisions of the act he was entitled to construct in absence of the rejection of his application by the municipality within one month of making such application. according to him, february 26, 1978 one month was completed and that till then and quite sometime thereafter no intimation was received from the municipality rejecting his application, be carried out the construction and, therefore, he has not committed any offence under section 155(1) punishable under.....
Judgment:

A.S. Qureshi, J.

1. These two appeals are filed by the present appellant who was the original complainant. The present respondent No. 1 was the accused in the Summary Case Nos. 1065/78 and 39 of 1979 for the alleged offence of carrying out illegal construction without the permission of Patan Municipality and therefore, punishable under Section 155(7) of the Gujarat Municipalities Act, 1963 (Act XXXIV of 1964), hereinafter referred to as the Act. According to the complainant who is an employes of the Patan Municipality the accused had-illegally constructed some additional portion in his house. After recording the evidence, the learned Magistrate was satisfied that no offence was committed by the accused. Hence, by his judgment and order dated June 7, 1979 the learned Judicial Magistrate, First Class, Patan, acquitted the accused in both the cases.

2. It is not in dispute that the original accused who is respondent No. 1 in these two Appeals had given an application to the Municipality on January 27, 1978 keeking permission to make additional construction in his house. It is also agreed on behalf of the Municipality that a plan was submitted with the aforesaid application. The applicant went to the office of the Municipality on February 10, 1978 for inquiring about the decision regarding his application. On that day, the Surveyor of the Municipality drew the attention of the applicant to the fact that there was no date mentioned on the application. He was asked to put the date 10th February, 1978 which the applicant did. The Municipality did nut give any reply to the aforesaid application either granting permission or rejecting the same, till March 8, 1978 when the Municipality by an intimation informed the applicant that his application for the additional construction is rejected as the land in question is likely to be acquired for the construction of a Town Hall. The applicant was also told in the aforesaid rejection letter that the acquisition proceedings will be carried out in due course. The present respondent No. 1 (Original accused) carried out the construction en or after 13-3-'78 under the bona fide belief that under the provisions of the Act he was entitled to construct in absence of the rejection of his application by the Municipality within one month of making Such application. According to him, February 26, 1978 one month was completed and that till then and quite sometime thereafter no intimation was received from the Municipality rejecting his application, be carried out the construction and, therefore, he has not committed any offence under Section 155(1) punishable under Sub-section (7) of the same section.

3. Mr. S.N. Shelat, the learned Counsel for the Patan-Municipality has urged that the original accused had carried out the construction illegally before the one month period was over. According to Mr. Shelat, the application cannot be-entertained until it is completed by submitting all the documents etc. required for the purpose. In his submission the application given on January 27, 1978 was not a completed one and that the same was completed on February 10, 1978. Therefore, the period of one month will be calculated from February 10, and not January 27. According to him the letter of rejection dated March 8, 1978 was given within one month and hence the original accused was not entitled to construct as per his application. This contention of Mr. Shelat is obviously incorrect because it would not be correct to say that the application date January 27, was not a complete one and that it was completed on February 10. On February 10, all that had happened was that the date was put on the plan which was inadvertantly not put on the day on which the plan was submitted with the original application of January 27. It is true that the date January 27 should have been put on the plan also just as it was put on the application. The fact that the date was not put on the plan does not make the application incomplete. In fact it was improper on the part of the Municipal Surveyor to ask the applicant to put the date on the plan as 10th of the February when if was in fact submitted on January 27. The present respondent No. 1 was entitled to regard his application having been properly submitted on January 27 and in the absence of receiving any reply from the Municipality within one month i.e. on or before February 26, he could legitimately carry on the construction as permitted by the provisions of Section 155(5) of the said Act.

4. Mr. Shelat further argued that on February 10, 1978 when the accused person had gone to the office of the Municipality he was orally told by the Surveyor that his application was incomplete as he bad net put the date on the plan. Hence according to Mr. Shelat the accused person was put on guard on February 10, that his application was treated as incomplete and hence the computation of one month period would commence after February 10. This contention of Mr. Shelat also must be rejected. It is not sufficient for the Municipality to give an oral instruction of the application being incomplete. If the application is considered to be incomplete the Municipality must give an intimation in Writing to the applicant setting out the defects and deficiencies in the application and inform the applicant that his application Will not be considered for appropriate action untill it is completed. This requirement of giving an intimation in writing is necessary for the purpose of legal proof. In fairness also, it would be necessary and proper for the Muncipality to give the intimation in writing.

5. In Criminal Appeal No. 951 of 1979 Mr. Shelat states that the alleged illegal construction was carried out by the original accused long after the intimation of rejection dated March 8, 1978 was served on him. According to the Inspector of the Municipality, the said construction was found to be in progress in July 1978. Hence, according to Mr. Shelat, the accused is guilty of contravening the provisions of the said Act even after he bad been informed of the rejection of his application and, therefore, the accused is liable to be penalised as laid down in the Act.

6. Mr. C. V. Jani the learned Counsel for the respondent No. 1 (original accused) submits that the letter of rejection dated March 8, 1978 is illegal, void and ineffective in as much as the ground for rejection set out in the said letter is legally untenable.

7. Mr. Jani relying on the Division Bench decision in the case of Vyara Municipality v. Fulchand Shah reported in A.I.R. 1960 Bombay 99 decided on February 12, 1959, submits that the rejection of the respondent's application by the Patan Municipality was illegal. In the said Division Bench decision of the Bombay High Court which was rendered before this High Court came into existence and it is binding on this Court it has been held that it is not open to the Municipality to reject the application for construction on the ground that the land on which the construction is sought to be made is likely to be acquired by the Municipality without its passing a resolution to that effect. In that decision it is also held that not only Municipality should pass such a resolution but also send a copy thereof to the applicant With the letter of rejection. In the aforesaid case, it was urged that the Vyara Municipality had already passed, a resolution although the applicant was not supplied a copy thereof together with the letter of rejection. The Division Bench held that in the absence of a copy of the resolution being given to the applicant with the letter of rejection it would not help the Municipality to show that such a resolution is passed. Although the said decision of the Division Bench was under the provisions of the Bombay District Municipal Act, 1901 (Act III of 1901), the provisions under that Act are quite analogous to Sections 155 and 156 of the present Act. Hence the aforesaid decision is fully applicable to the facts of this case and is followed herein with due respect. In the present case also, the resolution, if any, passed by the Patan Municipality is not on the record of this case nor is it shown that a copy thereof was sent along with the letter of rejection. Therefore, the contention of Mr. Jani that the letter of rejection dated 8-3-1978 is illegal and void is accepted as correct.

8. In the result, both the appeals filed on behalf of the Patan Municipality are dismissed.


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