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1981 DIGILAW 15 (PAT)

Loon Karan Khemka v. State of Bihar

1981-01-15

MANORANJAN PRASAD

body1981
JUDGMENT : Manoranjan Prasad, J. 1. The petitioner was convicted by the Trial Court, of the offence, under Section 13(1) of the Bihar Restriction of Uses of Land Act 1948 (hereinafter referred to as the Act), for having made certain construction on municipal survey plot No. 747, at Ranchi, beyond the plan sanctioned and was sentenced to pay a fine of Rs. 500/- and in default of payment of fine, to undergo simple imprisonment for 6 months and he was further directed to pay a fine of Rs. 50 per day for the continuing construction from the date of the Trial Court's JUDGMENT :, dated 26-7-1977. On appeal the conviction of the petitioner was confirmed but his sentence of fine of Rs. 500 was reduced to Rs. 300 and in default in payment of fine he was ORDER :ed to undergo simple imprisonment for 2 months and his daily fine of Rs. 50 was also reduced to Rs. 30/- till the excess construction in contravention of sanctioned map was removed. Thereafter the petitioner filed the present revision application, which was admitted on the question of sentence only, but at the time of hearing, Mr. Debi Prasad, learned counsel appearing for the petitioner, has also raised a question of law regarding the merits, of decision of the courts below, on the ground that the decisions are based on inadmissible evidence. He has further contended that that part of the JUDGMENT : of the courts below which allows a daily fine for continuing construction is also bad in the eye of law, in view of the Division Bench decision of this court in the case of (1) Diwan K. Kumar Chopra and others V. The State of Bihar and others, in Criminal Miscellaneous No. 874 of 1976 (R), which was decided along with the Criminal Miscellaneous No. 142 of 1977 (R), by JUDGMENT :, dated 1-4-1980. A certified copy of the said JUDGMENT : had been filed. 2. A certified copy of the said JUDGMENT : had been filed. 2. The contention of the learned counsel for the petitioner on the first point is that, since the petitioner was sought to be convicted under Section 13(1) of the Act, for making certain constructions beyond the sanctioned plan, it was incumbent on the prosecution to file and prove the sanctioned plan to show that the constructions made by the petitioner were beyond it, but the prosecution had not filed or proved the said sanctioned plan, though it was in the evidence of P.W. 6, an Assistant Engineer of the Ranchi Improvement Trust, that the sanctioned plan was in the file of the Trust. The prosecution had tried to prove excess construction with the help of a rough sketch map (Ext. 6), which P.W. 6 had prepared at the spot, with the help of the sanctioned plan and the courts below have heavily relied on this rough sketch map (Ext. 6) for holding that the petitioner had made construction beyond the sanctioned plan. Regarding this rough sketch map (Ext. 6), the contention of the learned counsel for the petitioner is that it is a secondary evidence of the sanctioned plan which is in the custody of the complainant and hence of the requirements of Sections 65 and 66 of the Evidence Act under which secondary evidence can be given are not fulfilled in this case. On the other hand it has been contended by the learned counsel for the opposite-party that a copy of the sanctioned plan was also given to the petitioner, against whom it is sought to be proved and as such under Section 65 of the Evidence Act, secondary evidence of its content is admissible in evidence. Firstly, there is nothing on the record to show that a copy of the sanctioned plan was given to the petitioner, but even if it is assumed that a copy of the sanctioned plan was given to him, still there is another hurdle in accepting the secondary evidence of its content in the absence of any notice given to the petitioner to produce it as required under Section 66 of the Evidence Act. That being the position, it must be held that the findings of the courts below, that the petitioner has made construction beyond the sanctioned plan is based on inadmissible evidence. That being the position, it must be held that the findings of the courts below, that the petitioner has made construction beyond the sanctioned plan is based on inadmissible evidence. The conviction and sentence of the petitioner for the offence under Section 13(1) of the Act for making construction beyond the sanctioned plan must, therefore, be set aside. This makes it unnecessary, to consider the second point raised on behalf of the petitioner. Accordingly, the application is allowed and the conviction and sentence of the petitioner under Section 13(1) of the Act are set aside and he is acquitted. Application allowed.