State Of Gujarat & 1 ­

1.0 Rule. Ms. C.M. Shah, learned Additional Public Prosecutor waives service of notice of Rule on behalf of the respondent no.1 State and Shri Anvesh Vyas, learned advocate waives service of notice of Rule on behalf of respondent no.2­ original accused. In the facts and circumstances of the case and with the consent of the learned advocates for the respective parties, the application is taken up for final hearing today.

2.0 Present Criminal Revision Application under Section 397 r/w Section 401 of the Code of Criminal Procedure has been preferred by the petitioner herein­original complainant – Patan Municipality through his Chief Officer to quash and set aside the impugned judgment and order dated 3.5.2010 passed by the learned Chief Judicial Magistrate, Patan passed in Criminal Case No. 205 of 2001 by which the learned trial Court has acquitted the respondent no.2 herein­original accused for the offence punishable under sub­Section (7) of Section 155 of the Gujarat Municipalities Act, 1963.

3.0 The facts leading to the present Criminal Revision Application in nutshell are as under:

3.1. That the petitioner herein ­original complainant had filed the complaint ­Criminal Case No. 205 of 2002 against the respondent no.2 herein­original accused in the Court of learned Chief Judicial Magistrate, Patel for the offence punishable under sub­ section (7) of Section 155 of the Gujarat Municipalities Act, 1963 (hereinafter referred to as the “Act”) alleging inter alia that the original accused has put up the illegal and unauthorized construction without getting the plan sanctioned as required under Section 155 of the Act. It was the case on behalf of the complainant that accused submitted the application for development permission for putting up the construction on the land in question on 22.8.2000 and within three days the Chief Officer asked for certain particulars and without supplying any particulars as demanded by the Chief Officer vide communication dated 25.8.2000 and without any development permission/ getting the plan sanctioned the accused has put up the construction of Rs.1,21,855/­ and committed the offence punishable under sub­Section (7) of Section 155 of the Act and therefore, it was requested to convict the accused for the offence under sub­Section (7) of Section 155 of the Act.

3.2. On the other hand, it was the case on behalf of the accused that the accused submitted the application for development permission on 22.8.2000 and as no decision was taken refusing to grant permission within the period of one month and the application for development permission was rejected on 5.1.2001, vide communication at Exh.71 which was beyond the period of one month from the date of submitting the application for development permission and therefore, the accused would be entitled to benefit of Section 155(5) of the Act and was entitled to put up the construction and therefore, it was requested to dismiss the complaint. The learned trial Court accepted the contention on behalf of the accused and has acquitted the respondent no.2 herein­ original accused by holding that as the decision to reject the application for development permission was after a period of one month of submitting the application and application was not rejected within the period of one month from the date of submitting the application for development permission, as per Section 155(5) of the Act the accused was entitled to put up the construction and therefore, was entitled to benefit of Section 155(5) of the Act.

3.3. Being aggrieved and dissatisfied with the impugned order passed by the learned Chief Judicial Magistrate, Patan dated 2.5.2001 passed in Criminal Case No.205 of 2001 acquitting the accused for the offence punishable under sub­Section (7) of Section 155 of the Act, the petitioner herein­original complainant ­Patan Municipality preferred through its Chief Officer has preferred Criminal Revision Application under Section 397 r/w section 401 of the Code of Criminal Procedure.

4.0 Shri Shivang Shah, learned advocate for the applicant ­original complainant has vehemently submitted that learned trial Court has misinterpreted the Section 155 of the Act. It is submitted that the learned trial Court has materially erred in granting the benefit of provision of Section 155(5) of the of the Act to the accused. It is submitted that the learned trial Court has materially erred in not appreciating the fact that as such on receipt of application by the accused dated 22.8.2000 for development permission for putting up the construction on the land in question, in fact the Chief Officer asked certain particulars under Section 155(4) of the Act vide communication dated 25.8.2000 (within a period of one month) and the accused never supplied the particulars which were asked by the Chief Officer and on the contrary put up the construction without obtaining any development permission unauthorizedly and illegally. It is submitted that as such while granting benefit under Section 155(5) of the Act, the learned Chief Judicial Magistrate, Patan has not considered Section 155(5)(a)(ii) as well as Section 155(5)(b) of the Act. It is submitted that in case where whether the Chief Officer has demanded any particulars as provided under Section 155(4)(b) of the Act and concerned persons / applicant furnishes the particulars as demanded and thereafter within the period of one month from the date of submitting further particulars as demanded by the chief Officer under Section 155(4) of the Act, if the Chief Officer does not pass any order whether granting or rejecting the application for development permission,in that case, a person who has applied for development permission under Section 155 of the Act acquires right to proceed further with the construction as per the work proposed in the notice given under sub­section (1) of Section 155 of the Act and that too if the same is in accordance with Act, Rules and bye laws. It is submitted that therefore, only in a case where within one month from the date of receipt of the application as provided under sub­section (1) of Section 155, the Chief Officer has neither issue any provisional order or if has demanded any further particulars within one month from the date of submitting such application (Section 155(4)(b) of the Act) and thereafter as and when the concerned applicants/ persons submits further particulars as demanded by the Chief Officer and thereafter within a period of one month from the date of receipt of such further particulars as demanded by the Chief Officer, the Chief Officer does not pass any order either rejecting and / or granting development permission as sought for then and then the concerned persons acquired the right to put up the construction as provided under Section 155(5) of the Act. It is submitted by Shri Shah, learned advocate for the applicant­original complainant that in the present case the learned trial Court has materially erred in considering one month from the date of submission of the application i.e. 22.8.2000. It is submitted that learned trial Court has not at all considered the fact that vide communication dated 25.8.2000 (within period of one month from the date of receipt of application dated 22.8.2000), the Chief Officer has asked for further particulars as per Section 155(4) of the Act and as such the accused did not supply the further particulars as demanded by the Chief Officer and therefore, unless and until the accused would have submitted the particulars demanded by the Chief Officer as demanded vide communication dated 25.8.2000 he could not have pleaded for the benefit under Section 155 of the Act. Therefore, it is submitted that the learned trial Court has as such misinterpreted the provision of Section 155 of the Act and has committed grave error and / or illegality in acquitting the accused for the offence punishable under sub­Section (7) of Section 155 of the Act. By making above submission, it is requested to allow the present Criminal Revision Application and convict the accused for the offence under sub­Section (7) of Section 155 of the Act and to impose the maximum fine as provided under sub­Section (7) of Section 155 of the Act.

5.0 Shri Vyas, learned advocate for the original accused has tried to support the impugned judgment and order passed by the learned trial Court acquitting the accused for the offences punishable under sub­Section (7) of Section 155 of the Act. It is submitted that as the communication dated 5.1.2001 rejecting the application submitted by the accused for development permission for putting up the construction was beyond the period of one month from the date of submission of application and therefore, the learned trial Court has rightly granted the benefit of Section 155(5) of the Act and has rightly held that as the decision rejecting the application of the original accused for development permission was after a period of one month from the date of submitting the application he has right to put up the construction as per his earlier application. Therefore, it is submitted that as such no illegality has been committed by the learned trial Court in acquitting the appellant for the offence under sub­Section (7) of Section 155 of the Act.

6.0 Heard the learned advocates for the respective parties at length. While deciding the present Criminal Revision Application and considering the case against the respondent no.2 ­accused for the offence under sub­Section (7) of Section 155 of the Act few dates are required to be considered. That the original accused submitted the application for development permission for putting up the construction as provided under Section 155 of the Act on 22.8.2000. That within the period of three days from the date of receipt of the aforesaid application for development permission, the Chief Officer demanded the certain particulars vide communication dated 25.8.2000. That thereafter, the accused did not supply any further particulars demanded by the Chief Officer, demanded vide communication dated 25.8.2000 and had put up the construction illegally and unauthorizedly without getting development permission and / or without getting plan sanctioned and in the report it was found that he has put up the construction of Rs.

1,24,855/­ (as per the panchnama prepared on 2.1.2001 and the report of the Civil Engineer dated 18.1.2001). That vide communication dated 5.1.2001 (Exh. 72) the accused was communicated that as he has not supplied / furnished the further particulars as demanded by the Chief Officer in its communication dated 25.8.2000, his application for development permission has been rejected.

7.0 While considering present Criminal Revision Application Section 155 of the Act is also required to be considered which reads as under:

“155. Notice of new building :­ (1) Before beginning to construct any building or to alter externally or add to any existing building, or to construct or reconstruct any projecting portion of a building in respect of which the executive committee is empowered by section 151 to enforce a removal or set back, or to construct or reconstruct which the Chief Officer is empowered by section 150 to give permission, the person intending so to construct, alter, add or reconstruct shall give to the Chief Officer notice thereof in writing and shall furnish to him at the same time, if required by a by­law or by special order of the State Government to do so, a plan certified by a qualified person recognised by the municipality for the purpose and showing the levels, at which the foundation and lowest floor of such building are proposed to be laid, by reference to some level known to the Chief Officer, and shall information required by the bye­laws or demanded by the Chief Officer regarding the limits, design, ventilation and materials of the proposed building, and the intended situation and construction of the drains, sewers, privies, water­closets, and cesspools, if any, to be used in connection therewith, and the location of the building with reference to any existing or projected streets, and the purpose for which the building will be used.

(2) Power of Chief Officer to pass order:­Save as otherwise provided in this Act or the rules and by­laws thereunder, the Chief Officer may either give permission to construct, alter, add or reconstruct, according to the plan and information furnished or may impose in writing conditions, in accordance with this Act and the rules and by­laws made thereunder, as to level, drainage, sanitation, materials or to the dimensions and cubical contents of rooms, doors, windows and apertures for ventilation or to the number of storeys to be erected, or with reference to the location of the building in relation to any street existing or projected or the purpose for which building is to be used, or may direct that the work shall not be proceeded with unless and until all questions connected with the respective location of the building and any such street have been decided to his satisfaction or may for reasons recorded in writing reject the notice given under subsection (1).

(3) The municipality may, before any work has been commenced in pursuance of any permission granted by the Chief Officer under sub­section (2), revoke such permission and may give fresh permission in lieu thereof on such conditions, in accordance with this Act and the rules and by­laws made thereunder, with reference to the matter mentioned in the said sub­section, as it thinks proper, and may direct that the work shall not be proceeded with unless and until all questions connected with the respective location of the building and any such street have been decided to its satisfaction.

(4) Power to suspend the work or require further particulars:­ Before issuing any orders under sub­section (2), the Chief Officer may­within one month from the receipt of such notice, either issue­ (a) a provisional order directing that for a period, which shall not be longer than one month from the date of such order, the intended work shall not be proceeded with, or (b) may demand further particulars.

(5) Right to proceed in certain cases:­A work proposed in a notice given under subsection (1) may be proceeded within the manner specified in such notice, provided such manner is not inconsistent with any provision of this Act or of any by­law for the time being in force thereunder in the following cases, namely:­ (a) in case the Chief Officer within one month from the receipt of the notice given under sub­section (1) has neither­ (i) passed orders under sub­section (2) and served notice thereof in respect of the intended work; nor (ii) issued under sub­section (4) any provisional order or any demand for further particulars; (b) in case the Chief Officer having issued such demand for and having received such further particulars, has issued no further orders within one month from the receipt of such particulars.

(6) Commencement of work: No person who becomes entitled under sub­section (2) or (5) to proceed with any intended work of which notice is required by sub­section (1) shall commence such work after the expiry of the period of one year from the date on which he first became entitled so to proceed therewith, unless he shall have again become so entitled by a fresh compliance with the provisions of sub­sections fl) or (5). And no person to whom permission to erect or alter or add to any building has been granted by the municipality under section 96 of the Bombay District Municipal Act, 1901 (Bom. Ill of 1901), or of that Act as adapted and applied to the Saurashtra area or under section 123 of the Bombay Municipal Boroughs Act, 1925 (Bom. XVIII of 1925), or of that Act as adapted and applied to the Saurashtra area or that Act as extended to the Kutch area shall be entitled to commence such work after the expiry of one year from the date on which this Act comes into force. (7) Whoever begins any construction, alteration, addition or reconstruction without giving the notice required by sub­section (1) or without furnishing any plan, in formation or particulars required by or under this section, or except as provided in sub­ section (5), without awaiting or in any manner contrary to such legal orders of the Chief Officer as may be issued under this section or contrary to the provisions of this Act or of any by­law in force thereunder, shall be punished with fine which may extend to an amount to fifty percent of the cost of the construction, alteration, addition or reconstruction, as the case may be, or one thousand rupees, whichever is greater and in the case of a continuing contravention of any of the aforesaid provisions, he shall be liable to an additional fine which may extend to an amount upto one percent of the cost or ten rupees, whichever is greater, for each day during which such contravention continues after conviction for the first such contravention; and the Chief Officer may­ (a) direct that the construction, alteration, addition or reconstruction be stopped, and (b) upon a conviction being obtained under sub­section (7), by written notice require such construction, alteration, addition or reconstruction to be altered or demolished in accordance with the provisions of such notice.

(8) The Chief Officer may at any time inspect any work of which notice is required by sub­section (1) without giving notice of his intention to do so; and at any time during the execution of any such work as aforesaid, may, by written notice, specify, any matter in respect of which the execution of such work is in contravention of any provision of this Act or of any by­law made under this Act at the time in force or of any order passed under this section; and require the person executing such work to cause anything done contrary to any such provision or bye­law or order he is required to do but which has been omitted.”.

8.0 Considering the aforesaid provision of the Act, it appears that a person before beginning any construction of any building or to alter externally or add to any existing building, or to construct or reconstruct any projecting portion of a building is required to give to the Chief Officer a notice thereof in writing submitting plan for proposed construction / reconstruction. (Section 155(1) of the Act). Sub­section (2) of Section 155 provides that the Chief Officer may either give permission to erect, alter, add to or reconstruct the building according to the plan and information furnished or may impose in writing such conditions, in accordance with this Act and the Rules and by laws made thereunder (sub­ section (2) of Section 155). Sub­section (4) of the Section 155 of the Act provides that before issuing any orders under sub­section (2) of Section 155, the Chief Officer may within one month from the receipt of such notice, either issue (a) a provisional order directing that for a period, which shall not be longer than one month from the date of such order, the intended work shall not be proceeded with or (b) may demand further particulars. Sub­section (5) of Section 155 of the Act provides and confers right upon the person who has submitted the notice for development permission and / or putting up construction as per sub­section (1) of Section 155 provided such construction is in consonance with any provision of the Act or of any bye laws, in case the Chief Office within one month from the receipt of the notice given under sub­section 1 has neither (I) passed orders under sub­section(2) and served notice thereof in respect of the intended work; nor (ii) issued under sub­ section(4) any provisional order or any demand for further particulars. Therefore, on fair reading of Section 155 of the Act only in a case where the Chief Officer has not passed any order under section 155(2) of the Act within the period of one month, from the date of receipt of notice under Section 155(1) of the Act and in case any further particulars are demanded by the Chief Officer as per sub­section(4) of Section 155 of the Act and within the period of one month from the date of receipt of such further particulars as demanded under sub­section (4) of Section 155 the Chief Officer has not passed any further order then and then only the concerned person who has submitted the notice for development permission has right to put the construction as per the notice and the proposed construction and that too if the same is in consonance with the provision of the Act, Rules and bye laws. Therefore, in case where within one month from the notice for proposed construction under Section 155(1) of the Act the Chief Officer has demanded further particulars as provided under Section 155(4) of the Act, in that case, one month as provided under sub­section(5) of Section 155 of the Act would commence from the date of submitting further particulars as demanded by the Chief Officer under Section 155(4) of the Act.

9.0 In the present case, admittedly within the period of one month, the Chief Officer had asked for further particulars vide communication dated 25.8.2000 under Section 155(4) of the Act. Nothing on record that the respondent no.2 accused submitted further particulars as demanded by the Chief Officer, demanded vide communication dated 25.8.2000 before putting up any construction in question. Even it is not the case on behalf of the accused that he submitted the particulars demanded by the Chief Officer, demanded vide communication dated 25.8.2000. Under the circumstances, the learned trial Court has materially erred in granting benefit of Section 155(5) of the Act and holding that as the communication dated 5.1.2001 rejecting the application for development permission was after a period of one month, the accused had right to put up the construction. The aforesaid is absolutely on misinterpretation and misreading of Section 155 of the Act. The learned trial Court has lost sight of the fact that the accused could not have put up any construction even under Section 155(5) of the Act unless and until he had furnished the particulars demanded by the Chief Officer under Section 155(4) of the Act and thereafter within one month the Chief Officer has not taken any decision. In the present case as stated above, the accused has not supplied any further particulars demanded by Chief Officer, demanded under Section 155(4) of the Act and therefore, he could not have and ought not to have put up any construction. As such communication dated 5.1.2001 of the Chief Officer was absolutely irrelevant. The question which was required to be considered by the learned trial Court was whether the accused could have put up any construction even considering sub­section (5) of Section 155 of the Act or not. Under the circumstances, the learned trial Court has committed a grave error and / or illegality in acquitting the accused for the offence under sub­section (7) of Section 155 of the Act by granting benefit of Section 155(5) of the Act. The impugned judgment and order passed by the learned trial Court acquitting the accused is absolutely on misinterpreting and misreading of Section 155 of the Act which cannot be sustained and considering the aforesaid facts and circumstances of the case, the respondent no.2­ original accused is held to have committed the offence under sub­ section (7) of Section 155 of the Act and he is to be convicted for the said offence.

10. Now next question which is posed for consideration of this Court is that which convicting the accused punishment to be imposed while convicting respondent no.2 for the offence under sub­section (7) of Section 155 of the Act. As per sub­section (7) of Section 155 of the Act whoever begins any construction, alteration, addition or reconstruction without giving the notice required by sub­section(1) or without furnishing any plan in formation or particulars required by or under the said Section, or except as provided in sub­section (5), without awarding or in any manner contrary to such legal orders of the Chief Officer as may be issued under the section 155 or contrary to the provisions of sub­ section(5) of the Act or in any other respect contrary to the provision of Gujarat Municipalities Act or of any bye­law in force thereunder, shall be punished with fine which may extend to an amount to 50% of the cost of the construction, alteration, addition or reconstruction, as the case may be, or Rs. 1000, whichever is greater and in the case of a continuing contravention of any of the aforesaid provisions, he shall be liable to an additional fine which may extend to an amount upto 1% of the cost or Rs.10, whichever is greater, for each day during which such contravention continues after conviction for the first such contravention; and the Chief Officer may (a) direct that the construction, alteration, addition or reconstruction be stopped and (b) upon a conviction being obtained under sub­section (7), by written notice require such construction, alteration, addition, or reconstruction to be altered or demolished in accordance with the provision of such notice. At this stage, Shri Vyas, learned advocate for the respondent no.2 ­original accused has requested not to impose maximum punishment i.e. to impose fine to the extent of 50% cost i.e. Rs.1,21,855/­ and has requested to impose reasonable fine.

11. In view of the above and for the reasons stated above, present Revision application succeeds. The impugned judgment and order dated 3.5.2010 passed by the learned Chief Judicial Magistrate, Patan passed in Criminal Case No. 205 of 2001 acquitting the respondent no.2 accused for the offence under sub­ section (7) of Section 155 of the Act is hereby quashed and set aside and respondent no.2 herein ­original accused no.2 is hereby held guilty for the offence under sub­section (7) of Section 155 of the Act for which he was tried and is convicted for the offence under sub­section (7) of Section 155 of the Act with a fine which is quantified at Rs.25,000/­ and original accused no.2 is directed to pay fine on Rs.25000/­ of conviction for the offence under sub­ section (7) of Section 155 of the Act. Rule is made absolute to the aforesaid extent.

“kaushik”

sd/­ ( M. R. Shah, J. )