JUDGMENT 1. - This is a reference made by the Additional District Magistrate, Udaipur, with a recommendation that the unauthorised construction made by Madan Lal, non-petitioner, in an area specified in a scheme framed by the Urban Improvement Trust, Udaipur, hereinafter referred to as the Trust, may be ordered to be demolished or any other suitable order may be passed because the learned Municipal Magistrate, Udaipur, who tried Madan Lal, non-petitioner, for non-compliance with notice under S. 90 of the Rajasthan Urban Improvement Act, 1950, hereinafter to as the Act, failed to pass an order relating to demolition of the unauthorised construction. 2. The reference arises under the following circumstances:The Trust decided to frame a scheme for an urban area, namely, Aghat Nagar and requested the State Government to issue a notification specifying such area and declaring that the Trust had decided to frame a scheme for such area. It will not be out of place to mention that at the request of the Trust the State Government issued a notification No. F 20(8) Nyas 69 dated 18th November, 1969 (Ex. P. 4). In this notification, the urban area, for which a scheme was decided to be framed, was specified in detail and a declaration was made about the decision of the Trust to frame a scheme for such area. It was alleged that after issuance of the said notification Madan Lal, non-petitioner started reacting a building on a piece of land falling within the notified area. The Trust sent its Building Inspector to inspect the site and prepare a site-inspection memo and a site-plan. Shri Karim Bux, Building Inspector, thereupon reached the place where Madan Lal was erecting a building. He prepared a site-inspection memo and a site-plan, which is Ex. P. 1 on the record. After site inspection, he made a report to the Secretary of the Trust that Madan Lal had been constructing a building on the land falling within the notified area without obtaining previous permission from the Trust. A notice under S. 90 of the Act was issued to Madan Lal. non-petitioner directing the latter that the erection be stopped and that the building be demolished and in case the above directions were not complied within the time specified in the notice, legal action would betaken against him under S. 91 of the Act. A notice under S. 90 of the Act was issued to Madan Lal. non-petitioner directing the latter that the erection be stopped and that the building be demolished and in case the above directions were not complied within the time specified in the notice, legal action would betaken against him under S. 91 of the Act. The notice was served upon Madan Lal on 5th may, 1970, as is evident from the endorsement made to this effect on it by the process server Hari Ram. According to the prosecution, Madan Lal did not comply with the notice and continued to erect the building. Thereupon, a complaint was filed against him in the court of the Municipal Magistrate, Udaipur for non-compliance with directions contained in the notice. 3. The learned Municipal Magistrate tried Madan Lal, non-petitioner, and found him liable for penalty for non-compliance with the notice. The Municipal Magistrate accordingly sentenced Madan Lal to pay a fine of Rs. 300 and in default of payment of fine to undergo simple imprisonment for one month. The learned Magistrate, however, did not think it proper to pass any order regarding demolition of unauthorised construction although he was requested by the Trust to passsuch an order. Aggrieved by the order of the Municipal Magistrate, the Trust filed a revis-on-petition in the court of the learned Additional District Magistrate, Udaipur. The learned Additional District Magistrate. Udaipur, heard the revision-petition and came to a conclusion that the Municipal Magistrate committed a grave error of law in not passing an order for demolition of the unauthorised construction raised by Madan Lal on a place of land falling within the area specified in the scheme and that he was bound to order demolition of the building which had been erected by Madan Lal without obtaining previous permission of the Trust. The Additional District Magistrate, Udaipur, has, therefore, made this reference. 4. I have carefully gone through the record and heard Mr. N. N. Mathur for the Trust and Mr. N. P. Gupta appearing on behalf of Madan Lal, non-petitioner. It has been strenuously urged before me by Dr. N. N. Mathur that the Municipal Magistrate ought to have passed an order for demolition of unauthorised construction, when he was requested by the Trust to pass such an order. N. N. Mathur for the Trust and Mr. N. P. Gupta appearing on behalf of Madan Lal, non-petitioner. It has been strenuously urged before me by Dr. N. N. Mathur that the Municipal Magistrate ought to have passed an order for demolition of unauthorised construction, when he was requested by the Trust to pass such an order. It was further argued that the learned Municipal Magistrate did not assign any reason for not passing an order of demolition of unauthorised construction made by Madan Lal on the land specified in a scheme and that in the absence of reasons, it may be safely held that the learned Magistrate did not exercise his discretion in a judicial manner. Mr. N. P. Gupta for the non-petitioner, on the other hand, contended that no order of demolition of the alleged unauthorised construction could legally be passed in this case under S. 91 of the Act, because, no evidence was led from the side of the Trust that any building was erected or constructed by Madan Lal in ain area specified in a scheme framed by the Trust. In Support of his above contention he invited my attention to the provisions of S. 90 and 91 of the Act, which are reproduced below 90. Power to prevent or demolish building. If any person without the permission of the Trust erects, adds to or alters any building or wall so as to make the same project beyond the street alignment or building line shown in any plan finally adopted by the Trust, or erects or alters any building or wall in an area specified in a scheme, the Trust may, by a written notice (a) direct that the erection, alteration or addition be stopped, and (b) require such building or wall to be altered or demolished as it may deem necessary. 91 Penalty for non-compliance with notice under section 90. 5. If any person, after due notice given under section 90 does not stop erection, alteration or addition, or does not demo lien or after any building or wall he shall be punishable with fine which may extend to five hundred rupees, or with simple imprisonment, for a period of six months or with both and the said unauthorised construction shall be demolished or altered by the order of the Magistrate dealing with the case if so requested by the Trust. 6. According to Mr. 6. According to Mr. N. P. Gupta, unless it is proved by the trust that the non-petitioner erected any building so as to make the same project beyond the street alignment or building line shown in any plan finally adopted by the Trust or constructed any building in an area specified in a scheme, no penalty for non-compliance with the notice under S. 90 of the Act could legally be imposed on the non-petitioner. 7. I have considered the rival contentions. It may be observed at the outset that the complainant did not produce any scheme on the record which was framed by the Trust relating to the area in which the building was constructed by Madan Lal. What was produced by the complainant is the notification issued by the State Govt, at the request of the Trust under S. 32 of the Act specifying the area for which the Trust decided to frame a scheme and declaring the decision of the Trust to frame a scheme for such area. The notification issued under S. 32 of the Act by the State Govt, is not a scheme framed by the Trust for the urban area in which unauthorised construction was alleged to have been made by the non-petitioner. The notification merely declared the decision of the Trust to prepare a scheme for a particular area and further specified that area for which decision to frame a scheme was taken by the Trust. Specification of the area by the State Govt. In its notification under S. 32 of the Act cannot be regarded as a substitute for a scheme framed by the Trust. The reason is that the Trust may or may not frame a scheme for a notified area during the period the notification remains in force. Hence in the absence of any scheme, there is no satisfactory evidence on the record that Madan Lal, non petitioner, erected any building in an area specified in a scheme framed by the Trust. Karim Bux no doubt stated in his deposition at the trial that Aghat Nagar scheme was a scheme sanctioned by the State Govt., but no such sanctioned scheme had been produced in the trial court for reasons best known him or the complainant. Karim Bux no doubt stated in his deposition at the trial that Aghat Nagar scheme was a scheme sanctioned by the State Govt., but no such sanctioned scheme had been produced in the trial court for reasons best known him or the complainant. For v/ant of such evidence, I am unable to hold that the learned Magistrate committed any serious error in refusing to pass an order regarding demolition of unauthorised construction made by Madan Lal. 8. The learned counsel appearing on behalf of Madan Lal, non-petitioner, further contended that though the non-petitioner has not filed any appeal against his conviction and sentence of fine in the lower appellate court or any formal application-in-revision in this court yet he is entitled to request this court to exercise its revisional jurisdiction to set aside the conviction and sentence recorded against him, if it comes to a conclusion that there was no contravention of any of the provisions of S. 90 of the Act. The above contention is not devoid of force. I have already held above that there is no reliable evidence on the record against the non-petitioner that he erected any building so as to make the same project beyond the street alignment or building-line shown in any plan finally adopted by the Trust or erected any building in an area specified in a scheme framed by the Trust. In view of my above conclusion, the conviction and sentence of fine passed against the non petitioner cannot stand, because the non-petitioner did not contravene the provisions of section 90 of the Act and he could not legally be penalised for non-compliance with the notice issued under the said section. The Trust filed a revision-petition for enhancement of the penalty for non-compliance with the notice under S. 90 of the Act. 9. The learned Additional District Magistrate reported the matter in this Court for imposition of further penalty or demolition of unauthorised construction on the non-petitioner. On notice being issued to him by this Court for showing cause against enhancement of penalty the non-petitioner is entitled to show cause against his conviction also. 10. Consequently, the reference is rejected and the conviction and sentence of fine passed against Madan Lal, non-petitioner, by the Municipal Magistrate Udaipur, is set aside and he is acquitted of the charge punishable under S. 91 of the Act. 10. Consequently, the reference is rejected and the conviction and sentence of fine passed against Madan Lal, non-petitioner, by the Municipal Magistrate Udaipur, is set aside and he is acquitted of the charge punishable under S. 91 of the Act. The fine, if paid, small be refunded to him according to law. *******