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1996 Supreme(MP) 1010
High Court Of Madhya Pradesh
D. P. S. CHAUHAN
SPECIAL DEVELOPMENT AREA, CHITRAKUT - Appellant
Versus
POORANLAL SON OF MAHIPAL - Respondents
Cri. A. 1283 Of 1986
Decided On : 12/10/1996
R.P.AGRAWAL, V.S.CHAUDHARY
A complaint under Section 37 of the Madhya Pradesh Nagar Tatha Gramin Nivesh Adhiniyam, 1973 can only be filed by the Director of Town and Country Planning.
Headnote:
MADHYA PRADESH NAGAR TATH GRAM NIVESH ADHINIYAM, 1973 - SECTION 36, 37 - UNAUTHORISED DEVELOPMENT - PENALTY - COMPLAINT - DIRECTOR - JURISDICTION - CONSTRUCTION OF STATUTE - INTERPRETATION OF STATUTES - PENAL STATUTES - STRICT CONSTRUCTION - BURDEN OF PROOF - CRIMINAL CASES - PROSECUTION - EVIDENCE - WITNESSES - CROSS-EXAMINATION - ADMISSIONS - NOTICE - SERVICE - REQUIREMENTS - VALIDITY OF COMPLAINT - AUTHORITY TO FILE COMPLAINT - COMPETENT AUTHORITY - JURISDICTION - CRIMINAL PROCEDURE CODE, 1973 - SECTION 378(4) - SPECIAL LEAVE TO APPEAL - GRANT OF SPECIAL LEAVE - ADMISSIBILITY OF APPEAL - ADMISSION OF APPEAL - ADDITIONAL REGISTRAR - POWERS AND DUTIES - JUDICIAL REVIEW - SCOPE OF JUDICIAL REVIEW - APPELLATE JURISDICTION - GROUNDS FOR APPEAL - SUBSTANTIVE GROUNDS - TECHNICAL GROUNDS - MERITS OF THE CASE - FACTUAL FINDINGS - REVIEW OF FACTUAL FINDINGS - APPELLATE COURT - POWERS AND DUTIES - INTERFERENCE WITH FACTUAL FINDINGS - STANDARD OF REVIEW - SUBSTANTIAL EVIDENCE RULE - APPEAL ON MERITS - DISMISSAL OF APPEAL - COSTS - AWARD OF COSTS - FACTORS TO BE CONSIDERED - FRIVOLOUS OR VEXATIOUS APPEALS - COSTS NOT AWARDED.
Fact of the Case:
A complaint was filed by the Chief Executive Officer, Special Area Development Authority, Chitrakut, alleging that the respondent had constructed a new house without obtaining permission from the Authority as required under Sections 16 and 29 of the Madhya Pradesh Nagar Tatha Gramin Nivesh Adhiniyam, 1973 (the Adhiniyam). The complaint was dismissed by the trial court on the grounds that it was not proved that the respondent had constructed the house and that the appellant had not served the notice on the respondent as required under Section 37 of the Adhiniyam.
Finding of the Court:
The High Court held that the complaint was not maintainable as it was not filed by the Director of Town and Country Planning, who is the only person authorized to file a complaint under Section 37 of the Adhiniyam. The Court also held that the trial court was correct in finding that it was not proved that the respondent had constructed the house.
Issues: 1. Whether the complaint was maintainable as it was not filed by the Director of Town and Country Planning? 2. Whether the trial court was correct in finding that it was not proved that the respondent had constructed the house?
Ratio Decidendi: 1. Section 37 of the Adhiniyam provides that the Director of Town and Country Planning may lodge a complaint in cases of unauthorized development or use of land. The definition of "Director" in the Adhiniyam does not include the persons who have been appointed to assist the Director. Therefore, the complaint in the present case, which was filed by the Chief Executive Officer of the Special Area Development Authority, was not maintainable. 2. The burden of proof in a criminal case lies on the prosecution. In the present case, the prosecution failed to prove beyond reasonable doubt that the respondent had constructed the house. Therefore, the trial court was correct in dismissing the complaint.
Final Decision: The High Court dismissed the appeal.
( 1 ) A criminal case No. 228/82 was instituted upon a complaint filed by the Chief Executive Officer, Special Area Development Authority, Chitrakut before the Judicial Magistrate Satna, which was registered as Criminal Case No. 528/84 and was dismissedon merit by the Judicial Magistrate First Class Santa vide the impugned order dated 21-6-1965. Against this order, as required under Sub-Section (4) of Section 378 Cr. P. C. the Special Area Development Authority, Chitrakut applied for special leave to appeal to this Court which was granted by this Court in Misc. Criminal Case No. 3199/85 on 17-9-1986 whereupon the present appeal was filed and was admitted by the Additional Registrar of this Court on 5-1-1987.
( 2 ) THE complaint was filed by the Chief Executive Officer, Special Area Development Authority Chitrakut. It was a cyclostyled one and in Para 2, it is stated that the accused had constructed a new house on Chitrakut Pili Kothi Marg without obtaining the permission from the Authority as required under Sections 16 and 29 of the Madhya Pradesh Nagar Tatha Gramin Nivesh Adhiniyam, 1973 (for brevity hereinafter referred to as the Adhiniyam) and further that he was given notice on 7-7-1981, 24-7-1981, 9-11-1981 for stoppage of the construction work and for producing necessary papers, but the accused neither stopped the construction nor took any steps for obtaining the permission, which constituted an offence under Section 36 of the Adhiniyam. The complaint was in the name of Special Area Development Authority, through Chief Executive Officer, Chitrakut, Distt. Santna M. P.
( 3 ) THE complainant examined as many as four witnesses. Dharampal Rajak was examined as PW 1. Jayprakash Sharma was examined as PW 2. Ramashankar Gautam was examined as PW 3. Ravendra Pratap Singh was examined as PW 4.
( 4 ) PW1 is the peon in the said authority and on 9-11-81 he was given a notice for serving the said notice on the respondent but he has stated that the respondent was not available at home and the notice was handed over to his father. PW2 is the Revenue Inspector and his job was to make inspection of local construction of house and submit repot to the higher officers in regard to the spot inspection of the illegal construction. PW3 Ramashankar Gautam is the officer-in-charge who is concerned with the health department, was posted at the relevant time as Assistant Sanitary Inspector, PW4 Ravendra Pratap Singh is the person who at the relevant time was working on the post of the Chief Executive Officer in the said authority on the relevant date.
( 5 ) THE defence was that the Chief Executive Officer permitted construction saying that the sanction would be accorded later on, which was changed subsequently by the respondent. He has stated in his cross-examination that the father of the respondent was the owner of the house which was constructed before the application of the Adhiniyam.
( 6 ) THE trial Court dismissed the complaint by recording the finding that it is not proved that the accused-respondent constructed a house. Secondly, the appellant did not serve the notice on the accused respondent as per the requirement of S. 37 of the Adhiniyam.
( 7 ) HEARD the learned counsel for the appellant and the learned counsel for the respondent.
( 8 ) LEARNED counsel for the appellant made two-fold submissions :- (1) That, in cross-examination, no suggestion was offered to the prosecution witnesses that the construction in question was not made by the respondent. (2) Respondent had made an application dated 6-4-82 before the Chief Judicial Magistrate in the complaint which was dismissed, but in that application he did not say anything about the making of construction.
( 9 ) COMPLAINT was a criminal case and it is a settled position of law that in a criminal case the burden of proof lies on the person who sets up the criminal machinery in motion i. e. on the prosecution, by way of complaint or otherwise, unless the burden of proof
