Zila Parishad Bareilly v. Seva Ram — 1968 DIGILAW 315 (ALL)

JUDGMENT H.C.P. Tripathi, J. - This appeal under Section 417(3) of the Cr.P.C. is directed against an order of acquittal passed by learned Assistant Sessions Judge, Bareilly, in Cr. Appeal No. 151 of 1965 in a case under Section 246 of the U.P. Zila Parishad Act, 1961 (U.P. Act XXXIII of 1961). 2. The facts of the case lie in a narrow campus. One Sewa Ram was prosecuted by the Zila Parishad, Bareilly, for causing obstruction on the Aliganj Siroli road in village Aliganj by extending his house on the road and thereby encroaching on it. Sewa Ram denied to have encroached on the road by making undue constructions. According to him, his house was standing since a long period on the same site and he had not extended it. The Zila Parishad examined its Draftsman Riasat Yar Khan, its Overseer S. R. Diwan, and the roadside Chaukidar Zilani Khan, all of whom stated that the road was measured at the spot with reference to the settlement map of 1938-39 and it was found to have been narrowed on account of the encroachment made by Sewa Ram, who extended his house on a part of it. Sri Diwan, the Overseer, filed a site plan (Ex. Ka-1) showing the said encroachment. Radhey Shyam, the Lekhpal of the village, verified the correctness of the site plan prepared by the Zila Parishad Overseer with reference to the settlement map of 1938-39, and added that the encroachment had been made after the aforesaid settlement. Sheo Shanker Mehrotra, the Assistant Record Keeper of the Zila Parishad, testified that a notice dated April 27, 1964 under Section 209 of the Zila Parishad Act was addressed to Sewa Ram asking him to remove the encroachment, but he did not comply with it. 3. Sewa Ram admitted to have received the notice but asserted to have sent a reply denying to have encroached on the road by making any construction. He examined Chhidda in his defence who stated that he was the President of village Aliganj and had been seeing the house of Sewa Ram in the same condition for the last several years, and that a part of the house was in a dilapidated condition which had been reconstructed by Sewa Ram on the old site. He examined Chhidda in his defence who stated that he was the President of village Aliganj and had been seeing the house of Sewa Ram in the same condition for the last several years, and that a part of the house was in a dilapidated condition which had been reconstructed by Sewa Ram on the old site. The trial Magistrate found Sewa Ram guilty under Section 246 of the U.P. Zila Parishad Act, 1961, and sentenced him to a fine of Rs. 80/-. In default of payment of fine, he was directed to undergo one month's simple imprisonment. 4. Sewa Ram went up in appeal before the Assistant Sessions Judge who allowed it and set aside his conviction and sentence. The learned Judge was of opinion that as the dispute between the parties had a reference to property, civil court was the only forum for determining the aforesaid dispute and the prosecution of Sewa Ram was misconceived. For arriving at this finding, the learned Judge placed reliance on a Single Judge decision of this Court in the case of Gauri Shanker v. Emperor, AIR 1930 Allahabad 26 under the U.P. Municipalities Act, the relevant provisions of which were almost analogous to those of the Zila Parishad Act, 1961. 5. Learned counsel for the appellant has urged that the decision in the case of Gauri Shanker v. Emperor, AIR 1930 Allahabad 26 was not correct, that the principle laid down therein was not applicable to the facts of the present case and that it was incumbent on the appellate court to have given notice to the Zila Parishad before disposing of the appeal. Section 422 of the Cr.P.C. reads: "422. If the appellate Court does not dismiss the appeal summarily, it shall cause notice to be given to the appellant or his pleader, and to such officer as the State Government may appoint in this behalf, of the time and place at which such appeal will be heard, and shall, on the application of such officer, furnish him with a copy of the grounds of appeal; and, in cases of appeals under Section 411-A, sub-section (2), or Section 417, the Appellate Court shall cause a like notice to be given to the accused." 6. It will be noticed that the aforesaid section which deals with the notice of appeal against an order of conviction does not provide that notice has to be sent to the complainant as well. It is true that in cases of the present nature it is desirable that where the complainant is a local body, information should be sent to it for the hearing of the appeal. The law, however, does not make issuing of notice to the complainant incumbent on court. In this situation, we cannot agree with the learned counsel for the appellant that as notice of appeal had not been issued to the Zila Parishad, the lower appellate court had no jurisdiction to hear and dispose of the same. 7. As regards the decision in the case of Gauri Shanker v. Emperor, AIR 1930 Allahabad 26, referred to above, it does not lay down the rule that in every case of encroachment on a public street, the local authority is to take recourse to the civil court instead of taking action under Section 209 of the Zila Parishad Act or Section 265 of the U.P. Municipalities Act, as the case may be. If the rule laid down in the aforesaid decision is interpreted to be so wide, it will render the provisions of the aforesaid two sections of the respective Acts entirely nugatory. In cases, however, where the accused or the respondent is able to show a prima facie right to the land encroached upon, either by efflux of time or on account of acquiescence by the Board, a question of right does arise, and in such cases we are of opinion that the matter should be agitated before the civil court as that alone is competent to give a decision on the disputed questions of right to the property. 8. In this case, according to the prosecution it was in January 1960 that on measurement it was found that a part of the land bordering the road had been encroached by the respondent by extending his house over a portion of it. On the other hand, the respondent had asserted that he had not constructed any new house and had only reconstructed his house on its old site which had been there for the last several years. On the other hand, the respondent had asserted that he had not constructed any new house and had only reconstructed his house on its old site which had been there for the last several years. The encroachment, which is alleged by the prosecution, was found in 1960 with reference to the settlement map of 1938-39. There is no evidence to show in which year this encroachment was made by the respondent. It is possible, therefore, that the encroachment may have been made some time immediately after the year 1939 or 1940. That being so, a question of right to property does arise in this case which can be legitimately agitated only in the civil court. We, therefore, agree with the finding of the lower appellate court that the prosecution of the respondent was misconceived. 9. In the result, we find no force in this appeal, and it is dismissed.