Criminal Revision App. No.210 of 1992

26th March, 1999

Petitioner Counsel: Mr. M.L. PATIL
Respondent Counsel: Mr. S.U.V. KEJARIWAL, APP

JUDGMENT

JUDGMENT :- This Revision Application is directed against the judgment and order dated 17-8-1992 of the 2nd Additional Sessions Judge, Kolhapur in Criminal Appeal No.7 of 1987 dismissing the said appeal and upholding the order of the Judicial Magistrate First Class, Gadhinglaj dated 22.12.1986 in Summary Criminal Case No.351 of 1983 whereby the petitioner was convicted for offences punishable under Section 189 (9) of Maharashtra Municipalities Act. 1965 and sentenced to pay a fine of Rs.2000/- in default of payment of fine to under go SI for three months.

2. The brief facts leading to the present Revision Application are as follow:

The petitioner raised an unauthorised construction of a building on Plot No.14/3 owned by him within the Municipal limits of Municipal Council, Gadhinglaj without obtaining prior permission of the Municipal council. The Municipal Council, therefore, issued notice dated 9-4-1983 asking the petitioner to demolish the unauthorised construction. As the notice to demolish was not complied with by the petitioner, the Municipal Council filed a complaint in the Court of JMFC,Gadhinglaj on 25th August 1983 i.e. being Summary Criminal Case No.351 of 1983. The process was issued under Section 189(9) of the Municipalities Act. The petitioner was tried for the offence. After examining witnesses on behalf of the complainant and recording the statement of the petitioner-accused under Section 313 of Cr.P.C., the learned JMFC, Gadhinglaj recorded a finding that the construction by the petitioner on the above plot was without permission and, therefore, convicted him under aforesaid provision and sentenced him to a fine of Rs.2000/- in default to suffer SI for three months. The petitioner was also directed to demolish the unauthorised construction.

3. The above order was impugned in Criminal Appeal No.7 of 1987 in the Sessions Court, Kolhapur. The said appeal was heard by the 2nd Additional Sessions Judge, Kolhapur and was disposed of by his judgment and order dated 17th August 1992 dismissing the same.

4. The above orders of conviction and sentence are challenged in this revision application.

5. Mr. Patil, the learned Advocate appearing on behalf of the petitioner raised the same contentions which were argued in the appeal before the Sessions Court. Firstly it was contended that the Chief Officer of the Municipal Council, Gadhinglaj was not empowered to issue notice of demolition as the property in question was governed by the provisions of the Maharashtra Land Revenue Code. The said contention is based on the ground that the Tahsildar, Gadhinglaj had issued notice for arrears of land revenue in respect of the property in question. Admittedly this notice was not relied on before the trial Court but the point was raised only before the Sessions Court in Appeal. The said notice, according to Mr. Patil, was received by the petitioner during the pendency of the appeal and, therefore, the point was not taken up in the trial Court. The Appellate Court while dealing with the said point has recorded that in 313 Statement the petitioner had admitted that the plot in question belonging to the petitioner was situated within the Gadhinglaj Municipal Council area. Secondly the issue of notice by Tahsildar for arrears of Land Revenue for N.A. assessment would not take away the power of the Municipal council to order demolition of unauthorised construction. The construction has to be made after obtaining the permission of the Municipal Council and not under the provisions of the Land Revenue Code. These are two separate matters. The notice by the Tahsildar during the pendency of the appeal appears, on the face of it, to have been issued at the instance of the petitioner himself. In any way said notice cannot have the effect of legalising the structure in question.

6. The second contention raised on behalf of the petitioner is that the notice issued by the Municipal council for demolition gives time of five days whereas Section 189(8) provides for at least 15 days time for the demolition of the construction. The notice was issued on 9-4-1983 by the Municipal Council whereas the complaint was filed in the Magistrate's Court on 25th August, 1983 for prosecution of the petitioner under the aforesaid provisions, that is much after a lapse of 15 days from the receipt of notice by the petitioner. The relevant provision about the issuance of notice by the Municipal Council is sub-section (8) of Section 189 of the Maharashtra Municipalities Act. 1965 which runs as follows:

"If any person begins any construction of a building of which notice is required to be given under sub-section (2) -

(i) without the permission of the Chief Officer under sub-section (4) or of the Council under sub-section (5), save as otherwise provided under sub-section (6); or

(ii) having received permission under clause (a) of sub-section (4), contrary to the plans and information furnished under sub-sections (2) and (3): or

(iii) having received permission under clause (b) of sub-section (4) contrary to the conditions imposed under that clause or contrary to the plans and information submitted under sub-sections (2) and (3) in so far as such plans and information are not modified by such conditions: or

(iv) contrary to the provisions of sub-section (6), when construction is begun under that sub-section.

The Chief Officer may, by a written notice, require such person to stop such construction and to alter or demolish any construction already made as specified in the notice. If, within fifteen days from the service of such notice for demolishing any such construction, the work of demolishing it is not commenced, the Chief Officer may cause such work to be done and the expenses incurred therefor shall be recoverable from the person concerned in the same manner as an amount due on account of a property tax."

7. What is required under the aforesaid provision is that the Chief Officer had to issue a written notice requiring such person to stop construction and to alter or demolish any construction already made as specified in the notice. The said provision does not prescribe any period of time to be given for demolition in the notice itself. What the provision lays down is that if there is non-compliance to the notice within a period of fifteen days from the service of such notice, the Chief Office himself can get the demolition work done and recover the expenses incurred in that behalf from the person concerned as if the said amount was due on account of property tax. In this case the notice was served in April 1983. The Municipal Council had not, though empowered, under taken the demolition itself even after the expiry of 15 days but filed a complaint in the Magistrate's Court as late as on 25th August 1983. It is not understood why the Respondent-Municipal Council did not take action of demolition though empowered under the above provisions but only prosecuted the petitioner and it was ultimately the trial Magistrate who ordered the demolition after holding the petitioner guilty of the aforesaid offence. The time for 15 days is prescribed for taking action by the Municipal Council itself after the service of the notice. In other words no action can be taken by the Municipal Council in default of the compliance of the notice except after expiry of 15 days. In that view of the matter the notice of five days issued by the Council cannot be invalidated as no action of demolition was undertaken by the Municipal even after the expiry of 15 days and the prosecution was lodged much after expiry of 15 days period. There is, therefore, absolutely no substance in this second contention raised on behalf of the petitioner.

8. Thirdly it was contended that the sanction of the President of the Municipal Council ought to have been obtained under Section 296 of the above Act. Section 296 of the Municipalities Act requires the sanction of the President only in cases filed under Section 176(7) read with sub-sections (8) and (9) of Section 189. No sanction is required in case the person is sought to be prosecuted under sub-sections (8) and (9) of Section 189 only, without the aid of Section 176(7) as in the present case. Mr. Patil, therefore, fairly did not press this point.

9. Lastly the contention that the provisions of Section 189 do not apply to temporary construction is, apparently, untenable as the said provisions are not confined to permanent structure.

10. In view of the above there is no substance in this revision application which must fail. Mr. Patil, however, as a last resort submitted that the liberty may be give to the petitioner for applying for regularization of the construction. The structure itself is according to the petitioner, a temporary one and therefore, there is no question of giving post facto sanction for construction. It goes without saying that no one can prevent the petitioner from applying for regularization or for construction of new structure and the Municipal Council shall deal with such application strictly in accordance with law.

11. In the result the revision application is dismissed and the rule is discharged and the interme order granted by this Court earlier in terms of prayer clause (b) shall stand vacated.

Application dismissed