JUDGMENT

S.N. Sahai, J. - This is a reference made by the learned Sessions Judge of Jhansi recommending that the order of the trial court dated the 10th April 1956 imposing a fine of rupees two hundred on the applicant be quashed and the fine, if paid, be refunded to him. He further recommended that the authorities be directed to comply with the mandatory provisions of law under Sec. 3 (2) of the U. P. Roadside Land Control Act (Act No. X of 1945), hereinafter called the Act before seeking to take action under the Act.

2. The applicant Prem Narain was prosecuted under Sec. 13 of the Act for having constructed a pakka shop covered with a tinshed 6'x10' in the controlled area of the Jhansi-Shivapuri road in the sixth furlong of the second mile on its right hand side, it was alleged on behalf of the prosecution that though a notice was given by the authorities to the applicant, the applicant paid no heed to it.

The applicant pleaded not guilty to the charge. He stated that the building was an old one and the P. W. D. Engineer had promised that he would settle up the matter. He also alleged that he has been paying rent to the Municipal Board. The applicant produced evidence in support of the plea that he had taken the site on which the disputed construction stood from the Municipal Board. But it is clear from the prosecution evidence that when the overseer of the Public Works Department measured the land he found it to be in excess of the area which was leased to the applicant by the Municipal Board. The fact that the shop had been reconstructed recently in July 1955 was admitted by Babu Lal, one of the defence witnesses.

3. The trial court, on a consideration of the evidence on the record, came to the conclusion that the applicant had reconstructed his shop in the controlled area in the month of July 1956 without any authority and had thus infringed the provisions of Sec. 5 of the Act and was liable to conviction under Sec. 13 (a) of the Act.

4. Aggrieved with the order of the trial court the applicant went up in revision to the Sessions Judge and raised the contention that the Act did not apply to his case at all as the notification directing the area in which his building stood had not been validly declared a controlled area. He pointed out that the procedure laid down in sub-Sec. (2) of Sec. 3 of the Act had not been properly followed. The Sessions Judge accepted this contention. He was of opinion that, in the absence of any publication in two newspapers printed in a language other than English standing that they proposed to make a declaration contemplated under Sec. 3 (a) of the Act, the declaration was illegal and the applicant could not be legally convicted, as before making that declaration certain procedure had to be adopted which have been given in cls. (1) , (2), (3), (4), (5) and (6) of Sec. 3 of the Act. Cl. (7) gives the effect of such a declaration. Sec. 3 of the Act says:- Sec. 3:

"(1) The State Government may, by notification in the official Gazette, declare any land within a distance of four hundred and forty yards from the centre line of any road to be a controlled area for the purposes of this Act.

(2) Not less than three months before making a declaration under sub-Sec. (1) the State Government shall cause to be published in the official Gazette and in at least two newspapers printed in a language other than English a notification stating that they propose to make such a declaration and specifying therein the boundaries of the land in respect of which the declaration is proposed to be made, and copies of every such notification or of the substance thereof shall be published by the Collector in such manner as he thinks fit at his office and at such other places as he considers necessary within the said boundaries.

(3) Any person interested in any land included within the said boundaries may, at any time before the expiration of thirty days from the last date on which a copy of a such notification is published by t