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2010 DIGILAW 891 (ALL)

Naveen Chopra v. State of U. P.

2010-03-17

VIRENDER SINGH

body2010
Virender Singh, J. 1.Naveen Chopra, the revisionist has preferred this Revision against the judgement and order dated 19.11.2008, passed by the Additional Sessions Judge, Court No. 2, Bareilly in Criminal Appeal No. 06/2004 (Naveen Chopra vs. State of U.P. and Another), by which the appeal filed by the appellant/revisionist has been dismissed and the order dated 11.02.2004 passed by the Chief Judicial Magistrate, Bareilly in Case No. 6443/1998 (Bareilly Development Authority, Bareilly vs. Naveen Chopra @ Bobby), convicting the revisionist u/s 26(1) and 28(4) of the U.P. Urban Planning and Development Act, 1973 and sentencing the revisionist by a fine of Rs. 10,000/- and Rs. 50/- per day till the date of removal of construction from the date of order u/s 26(1) of the Act and a fine of Rs. 400/- u/s 28(4) of the said Act and in default thereof to undergo simple imprisonment of one year, has been affirmed. 2.I have heard both the parties and perused the record. 3.It is contended on behalf of the revisionist that the impugned order is against the law and the facts on record, because both the courts below have failed to consider the fact that in fact there was a garage which was constructed as far back as in the year 1969 by the grandfather of the revisionist Sri Madan Gopal Chopra, which was being repaired and no fresh constructions were made. Sri Madan Gopal Chopra, the grandfather of the revisionist was in receipt of a notice in the year 1976 from the Bareilly Development Authority, Bareilly (hereinafter referred to as the ''BDA'), regarding some construction saying the illegal construction, but the notice was later on withdrawn vide order dated 30.09.1977 by the authority mentioning therein that a garage and other buildings were constructed. The land of the property in question is still recorded as an agricultural land and it does not belong to BDA and therefore, the proceeding initiated against the revisionist by the BDA by way of illegally delegated powers of Vice Chairman to the Secretary, BDA is not tenable. The land of the property in question is still recorded as an agricultural land and it does not belong to BDA and therefore, the proceeding initiated against the revisionist by the BDA by way of illegally delegated powers of Vice Chairman to the Secretary, BDA is not tenable. As per provisions of the U.P. Urban Planning and Development Act, 1973, the Vice Chairman of the authority is said to have delegated his power to the Secretary, BDA vide order dated 08.07.1992 subject to the supervision of the Vice Chairman as is mandatory u/s 51 of the U.P. Urban Planning and Development Act, 1973, but it is apparent that the Vice Chairman was not supervising the action of his subordinate as the Vice Chairman had only delegated his powers to the Secretary, BDA to sanction the prosecution and not to file complaint, thus the complaint in the present case is without competence and jurisdiction which was liable to be dismissed outrightly. 4.Learned counsel for the respondent contended that there is no illegality in the impugned order either on the facts of the case or in the eyes of law and the impugned order has been passed by the learned Lower Court thereby exercising the jurisdiction vested in the court and since the revisionist was found constructing the building illegally without prior approval and permission of the authority, therefore, the learned Magistrate has rightly convicted the accused/revisionist and the learned Appellate Court has rightly dismissed the appeal filed by the accused/revisionist in this regard. 5.In the light of the contentions of both the parties, I have gone through the facts and circumstances on record. The law relating to Revision as is laid down in various cases by Hon'ble Apex Court as well as various High Courts of this country is summarized as below: - "The revisional court is empowered to exercise all the powers conferred on the Appellate Court by virtue of the provisions contained in section 401 Cr.P.C. Section 397 Cr.P.C. confers power on the High Court or Sessions Court as the case may be, for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed and as to the regularity of any proceeding of such inferior court. It is for the above purpose, if necessary, the High Court or Sessions court can exercise of appellate powers. It is for the above purpose, if necessary, the High Court or Sessions court can exercise of appellate powers. Section 401 Cr.P.C. conferring power of Appellate court on the Revision court is with the above limited purpose. Section 395 to 401 Cr.P.C. read together do not indicate that the revisional power of the High Court can be exercised as the consequent appellate power. The revision powers though very wide are purely discretionary, to be fairly exercised according to the exigencies of each case. It is very well settled that it is normally to be exercised only unexceptional case if there is glaring defect in the procedure or there is manifest error of point of law and consequently there has been a flagrant miscarriage of justice. These powers are extraordinary powers which must be exercised with due regard to the circumstances of each particular case. High Court will not interfere on a technical ground, but only when substantial question arises or when a material error effects the decision. It may interfere when a jurisdiction vested has been exercised in an improper manner or improper ground. Even if the order is wrong or illegal, the High Court will not always interfere when substantial justice has been done or no prejudice has resulted to the accused. The error of law must lead to a failure of justice. In Revisional matter the High Court does not take a technical view and interfere in every case when an order has been made irregular or improper. The fact that the High Court as an court of appeal might have taken different view is no ground for interference. The revisional jurisdiction will not be exercised in such a way as a given right of appeal in cases excluded by the Criminal Procedure Code." In the light of the aforesaid law, the facts and circumstances on record revealed that Naveen Chopra @ Bobby, the revisionist aforesaid was found raising the construction of his shop and he did not stop the construction even after service of notice to him on 20.07.1992 and continued the construction till 29.07.1992. On such facts on record before the Magistrate on the complaint of the BDA, the revisionist as an accused was found guilty on 30.08.1996 for the offence u/s u/s 26(1) and 28(4) of the U.P. Urban Planning and Development Act, 1973. On such facts on record before the Magistrate on the complaint of the BDA, the revisionist as an accused was found guilty on 30.08.1996 for the offence u/s u/s 26(1) and 28(4) of the U.P. Urban Planning and Development Act, 1973. In an appeal filed by the accused against that order, the learned Sessions Judge as per order dated 28.10.1998 remanded the case to the Magistrate for ascertaining this fact that whether the spot of construction lies In the jurisdiction of the BDA or not and under what authority the Secretary, BDA had authorized the prosecution of the accused as well as filed the complaint himself. Thus, merely two questions were remained for determination before the Magistrate. The Magistrate concerned adjudicated that the spot of construction lies in the jurisdiction of the BDA and the complaint before him was appropriately filed by the Secretary as an Executive Officer of the BDA while the prosecution sanction was accorded by the Secretary as per delegated powers to him by the Vice Chairman of the BDA. Again in the appeal filed by the Revisionist against the aforesaid findings of the Magistrate, the Appellate Authority affirmed the findings of the Magistrate by the impugned order. Thus the mere findings of Appellate authority pertaining to the above two questions referred by the appellate authority to the Magistrate, remained the subject matter of this Revision. 6. So far as the question of jurisdiction of the authority on the disputed spot is concerned, I do not find any illegality or any infirmity in the order passed by the learned Appellate Authority as per the impugned order as the notification dated 01.11.1971 referred in the judgement very well indicates Nagaria Parikshit, the disputed place, in the jurisdiction of BDA and I do not find any other evidence or circumstances on record to show that the disputed place is/was beyond the jurisdiction of BDA. Therefore, the concurrent findings on facts of both the courts below in this regard is liable to be affirmed. 7. Therefore, the concurrent findings on facts of both the courts below in this regard is liable to be affirmed. 7. So far as the question of filing the complaint by the Secretary, BDA and the question of sanction of the prosecution by the Secretary himself is concerned, I do not find any illegality in the findings of both the courts below that the sanction was accorded by the Secretary under the delegated powers to him by the Vice Chairman as per provisions u/s 51(3) of the Act, which provides power to delegate that he may direct that any power exercisable by him may also be exercised by such officer as may be specified by him. Therefore the power of sanction of the prosecution vested in the Vice Chairman as per provisions of section 49 0f the Act has been validly delegated by the Vice Chairman to the Secretary and the Secretary has rightly exercised it. So far the question of filing the complaint by the Secretary himself is concerned, the Secretary being the officer of the Authority appointed as per provisions of section 5 of the Act is fully empowered for it being authorized by the Vice Chairman. Therefore, in this regard too, there is no illegality or any infirmity either on the facts of the case or in the eyes of law. 8. So far as the question of conviction and punishment is concerned, the record shows that by way of the impugned order, the learned Appellate Authority has rejected the appeal of the accused against the conviction and sentence of the accused u/s 26(1) and 28(4) of the U.P. Urban Planning and Development Act, 1973 for a sentence of the revisionist to the fine of Rs. 10,000/- and Rs. 50/- per day till the date or removal of the construction from the date of order u/s 26(1) of the Act and a fine of Rs. 400/- u/s 28(4) of the said Act and in default thereof, to undergo simple imprisonment of one year. 10,000/- and Rs. 50/- per day till the date or removal of the construction from the date of order u/s 26(1) of the Act and a fine of Rs. 400/- u/s 28(4) of the said Act and in default thereof, to undergo simple imprisonment of one year. The provisions of Section 26(1) of the U.P. Urban Planning and Development Act, 1973 provides that any person who whether at his own instance or at the instance of any other person or any body (including a department of Government) undertakes or carries out development of any land in contravention of the master plan or zonal development plan or without the permission, approval or sanction referred to in Section 14 or in contravention of any condition subject to which such permission, approval or sanction has been granted, shall be punishable with fine which may extend to ten thousand rupees[at the relavant time] and in the case of a continuing offence, with further fine which may extend to five hundred rupees for every day, during which such offence continues after conviction for the first commission of the offence. In this regard though I do not find any ground to interfere in the impugned order of conviction and sentence but looking in to this fact that the matter remained in litigation, I do find it expedient that the fine of Rs 50/- per day shall be payable from the order in this Revision. Section 28 of the Act deals with the Power to stop development and sub clause (4) of this section provides that, Any person failing to comply with an order under sub-section (1) requiring the development to be discontinued, shall be punishable with fine which may extend to two hundred rupees for every day during which the non-compliance continues after the service of the order. Therefore a fine of Rs 400/- in total requires no interference. 9. Looking into the aforesaid provisions and the sentence passed by the learned Magistrate which is affirmed by the learned Appellate Authority by way of the impugned order, I do not find any good ground to interfere in the impugned order and therefore, this Revision deserved to be dismissed and is hereby dismissed accordingly. 10. 9. Looking into the aforesaid provisions and the sentence passed by the learned Magistrate which is affirmed by the learned Appellate Authority by way of the impugned order, I do not find any good ground to interfere in the impugned order and therefore, this Revision deserved to be dismissed and is hereby dismissed accordingly. 10. The revisionist/accused is directed to comply with the order of the learned Magistrate within a period of two months, failing which, the Magistrate shall be at liberty to enforce the order of conviction and sentence as per law. Let the Magistrate be informed accordingly thereby sending back the order of lower court.