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1968 DIGILAW 4 (ALL)

Ram Jiwan Gupta v. State

1968-01-03

J.N.TAKRU

body1968
ORDER J.N. Takru, J. - These are two Criminal Revisions. Criminal Revision No. 1785 of 1965 is by Ram Jiwan Gupta while Criminal Revision No. 2294 of 1966 is by Gur Bachan Singh. Ram Jiwan Gupta has filed his revision against his conviction and sentence of a fine of Rs. 200/- , in default two months' simple imprisonment u/s 13 of the UP Roadside Land Control Act--hereinafter called the Act--and Gur Bachan Singh has filed his revision against his conviction and sentence of a fine of Rs. 200/- in default one months simple imprisonment under the same section. Both the revisions arise out of separate prosecutions, but as the points involved in them are the same, they can be conveniently disposed of by a common judgment. 2. The case for the prosecution in Criminal Revision No. 1785 of 1965 is that Ram Jiwan Gupta, the Applicant, constructed a building within 220 feet from the centre of the Meerut-Baghpat Road near the 5th mile and first furlong. The case for the prosecution in criminal revision Mo. 2294 of 1936 is that Gur Bachan Singh, the Applicant, made a construction within 220 feet from the centre of the Delhi-Meerut Road near the 36th mile and the fifth furlong. In both these cases the prosecution case further was that the roads in question were "controlled areas" u/s 3(2) of the Act and as the Applicants had made their respective constructions within those areas without the permission of the Collector u/s 5 of the Act, they were liable to conviction u/s 13 of the Act. 3. Both the Applicants pleaded not guilty and stated that as their constructions had been in existence since long before the coming into force of the Act they could not be convicted u/s 13 thereof. 4. The prosecution produced witnesses to prove that the offending constructions were made recently, while the Applicants led evidence in support of their version. The learned Magistrate rejected the defence evidence and finding that of the prosecution satisfactory convicted and sentenced the Applicants, and, on appeal, the lower appellate court affirmed the same. Hence these revisions. 5. On behalf of the Applicants, his Learned Counsel, Sri Rajvanshi, urged two contentions in support of these revisions. The learned Magistrate rejected the defence evidence and finding that of the prosecution satisfactory convicted and sentenced the Applicants, and, on appeal, the lower appellate court affirmed the same. Hence these revisions. 5. On behalf of the Applicants, his Learned Counsel, Sri Rajvanshi, urged two contentions in support of these revisions. His first contention was that as the Governor of United Provinces was not competent to prepare the UP Roadside Land Control Act, 1945 in exercise of the powers assumed by him by the proclamation dated 3-11-1933, issued u/s 93 of the Government of India Act, 1935, the said Act was invalid and the Applicants could not be held guilty for contravening the provisions of an invalid Act. His second contention was that as there was no evidence on the record to show that the Notifications declaring the said roads 'Controlled areas' were published in two non-English newspapers as required u/s 3(2) of the Act, its provisions were inapplicable to the constructions in question and hence also the Applicants conviction and sentence were unsustainable. After hearing the Learned Counsel for the parties I am satisfied that the second contention is well founded and as that is sufficient for the disposal of these revisions it is unnecessary to say anything about the first contention. 6. Now Section 3(2) of the Act lays down that when any area is to be declared a 'controlled area' a notification to that effect shall be published inter alia in two non-English newspapers and it is only after the said and the other statutory publications as required u/s 3 of the Act have been made, and the objections if any, filed thereto have been disposed of, that the necessary declaration u/s 3(1) of the Act that the road is a 'controlled area' can lawfully be made by the State Government. Hence the first thing that has to be seen is whether there is any evidence to show that the requisite notifications were published in two non-English newspapers--there being no dispute that they were published in the UP Gazette etc. as required by law. To prove its case on this point the prosecution in Criminal Revision No. 1785 of 1985 filed the affidavit of Sri Sultanul Haq Siddiqui, an Upper Division Assistant in the PWD Secretariat. as required by law. To prove its case on this point the prosecution in Criminal Revision No. 1785 of 1985 filed the affidavit of Sri Sultanul Haq Siddiqui, an Upper Division Assistant in the PWD Secretariat. In this affidavit Sri Sultanual Haq Siddiqui averred that the notifications were duly published in a copy each of the daily Haq of Lucknow and the Prabhat of Meerut. Sri Sultanul Haq Siddiqui was also produced as a witness to prove the above, and though in his examination-in-chief he repeated what he had averred in his affidavit, in his cross-examination he admitted that he had not seen the relevant copies of those newspapers himself. It is, therefore, clear that there is no legal evidence to prove that the relevant Notifications were in fact published in two non-English newspapers as required by the mandatory provisions of Section 3(2) of the Act. Accordingly when these revisions were first heard by me on 1-12-1967, I directed the Learned Counsel for the State to obtain a copy each of the two non-English newspapers in which the aforesaid notifications were stated to have been published, and to produce them before me, but when these revisions came up for hearing today, the requisite copies of those newspapers were not produced. On the other hand an affidavit by the same Sri Sultanul Haq Siddiqui and in more or less the same terms as his original affidavit was filed wherein it was repeated that the copies of those newspapers could not be filed as the official copies had been weeded out and no new copies could be obtained as the Manager of the Daily Haq, Lucknow informed the deponent that the old record of the press was destroyed in the heavy floods which occurred in Lucknow in 1960, and the copy of the Prabhat, Meerut could not be procured despite the best efforts of the deponent. In Criminal Revision No. 2294 of 1966 the prosecution did not care even to file an affidavit or to lead evidence about the due publication of the Notification in two non-English newspapers. In Criminal Revision No. 2294 of 1966 the prosecution did not care even to file an affidavit or to lead evidence about the due publication of the Notification in two non-English newspapers. As the provisions of Section 3(2) of the Act are mandatory, the result of the failure on the part of the prosecution to prove affirmatively that the notifications were published in two non-English newspapers is that the declaration made by the State Government whereby those two roads were declared 'controlled areas' are null and void and the provisions of the Act do not apply to them. I am supported in this view by the decision in Prem Narain v. State 1959 AWR 494. Thus this contention of the Learned Counsel for the Applicants is well founded and has to be accepted. 7. As the acceptance of the aforesaid contention of the Learned Counsel for the Applicants is sufficient for the disposal of these revisions, the conviction and sentences of the Applicants are set aside and their revisions are allowed with the direction that the fine if paid, shall be refunded to the Applicants.