Nagara Council Budhlada vs Sunita Rani

Rameshwar Singh Malik, J.—This Criminal Revision Petition is directed against the judgment dated 29.8.2011 passed by learned Additional Sessions Judge, Mansa, Dismissing the appeal filed by the present petitioner against the judgment dated 27.11.2009 passed by learned Sub Divisional Judicial Magistrate, Budhlada, acquitting the respondent in the complaint filed by the petitioner under Sections 195 and 195-A of the Punjab Municipal Act, 1911 (for short ''the Act''). The short question that falls for consideration of this court is that whether the respondent, while raising construction of the building of school, committed an offence punishable under Sections 195 and 195-A of the Act.

The facts of the case, put into narrow compass are that the petitioner filed a complaint against the respondent vide complaint No. 26 of 27.8.2005 under Sections 195 and 195-A of the Act, alleging therein that the respondent started raising construction of the school without the requisite permission of Nagar Council, Budhlada. Two notices bearing Nos. MCB/SC/1448-49 dated 26.5.2005 were served upon the accused, asking her to stop the construction but to no avail. The learned trail court issued the notice to the respondent, who appeared and denied the allegation. In order to prove its case, the petitioner-complainant examined Amarjit Singh, JE as CW-1, Om Parkash as CW-2, Ashok Kumar as CW-3 and Vasdev as CW-4. Statement of the accused was recorded u/s 313 Cr. P.C., who did not plead guilty and claimed trial. The accused also led her evidence by producing Jaswant Singh as DW-1, Karnail Singh as DW-2, Janak Raj as DW-3 and Harbans Singh as DW-4.

The complaint-petitioner examined Amarjit Singh, JE as CW-1, who deposed that two notices dated 26.5.2005 Ex. PA and EX. PB were issued by him and he identified his signature on the notices. He further deposed that despite the service of notices, respondent did not stop the construction work. Respondent did not get the building plan sanctioned, which was required for raising any construction within the municipal area. Om Parkash-Clerk, Nagar Council, Budhlada appeared as CW-2 and deposed that he was posted as Bill Clerk. He identified the notices issued to the respondents. He further deposed that when he went to serve the summons on the respondents, she refused to accept the same. The he went to the shop of Bharat Bhusan-husband of the respondent, he also refused to accept the summons and submitted the report to the Executive Officer, accordingly. Thereafter, as per the orders of Executive Officer, affixed the summons at the building of the school. Similarly, Ashok Kumar, Junior Assistant of Nagar Council, Budhlada, appeared and corroborated the statements of PW-1 and PW-2. Likewise, Vasdev was examined as CW-4, who deposed that he was posted as Court Clerk, Nagar Council, Municipal Council, Budhlada.

With a view to controvert the evidence led by the complaint-petitioner, respondent-accused examined Jaswant Singh, TTA (BSNL), Budhlada, as DW-1. He proved the bill Ex. D-7 deposing that the connection pertaining to this telephone bill was issued in the rural area and he identified the school area of the respondent beyond the jurisdiction of Municipal Committee, Budhlada. Similarly, Karnail Singh, RA (P.S.E.B.), stepped into the witness box as DW-2 and deposed that the electricity bill Ex. D-8 was issued by their department and according to him, the area in question was beyond the municipal limits of Budhlada. He deposed that on the bill issued for urban area, octroi cess is charged but in the present case, no octroi has been charged. He also deposed that Manu Vatika School falls within the area of Village Budhlada and does not tall within the municipal limits of Budhlada. Similar is the statement of Janak Raj DW-3, Member Panchayat, Budhlada. DW-4 Harbans Singh Walia deposed that he knew Sunita Rani, accused-respondent, who was residing at Bhikhi Road, Budhlada. He further deposed that he never accompanied Om Parkash, CW-2, Peon of Municipal Council, Budhlada, to serve the notice upon respondent-Sunita Rani.

After hearing the learned counsel for the parties, the learned trial court vide its judgment dated 27.11.2009 recorded acquittal of the accused-respondent holding that the complainant had failed to prove its case. It was recorded that no record maintained by the Nagar Council, Budhlada, was produced to prove that the premises in question falls within the municipal area, Budhlada. It was also held that the material witness in this regard was Vasdev, Court Clerk, Nagar Council, Budhlada, who, during his cross examination as CW-4, categorically admitted that he cannot say whether the building in question falls within the territorial jurisdiction of Municipal Council, Budhlada. In terms of the statement made by Harbans Singh Walia, DW-4, it was also proved that the service of alleged notices Ex. PA and Ex. PB dated 26.5.2005 under Sections 195 and 195-A of the Act also not duly effected upon respondent-accused-Sunita Rani.

Dissatisfied with the judgment of acquittal dated 27.11.2009, petitioner filed the appeal before the learned Additional Sessions Judge, Mansa, who, vide impugned judgment dated 29.8.201 dismissed the appeal holding that heavy burden was on the prosecution to prove that building in question falls within the jurisdiction of Municipal Committee, Budhlada and accused raised construction over the same illegally without sanction of site plan from the Municipal Committee. However, the complainant failed to prove its case by leading cogent and convincing evidence. Its own witness PW-4 Vasdev, Court Clerk, deposed in his cross examination that he cannot say whether the building was within the territorial jurisdiction of Municipal Committee, Budhlada. It was further that even the authority given to file complaint was also doubtful. Thus, the Municipal Committee, Budhalada, utterly failed to prove its case that the building in question was falling within the jurisdiction of Municipal Committee, Budhlada.

Feeling aggrieved against the above said two judgments passed by the learned courts below, Nagar Council, Budhlada, has come up in this Criminal Revision Petition before this court.

I have heard learned counsel for the petitioner and with his able assistance have gone through the record of the case.

After giving my thoughtful consideration to the contentions raised and in view of the peculiar facts and circumstances of the case, this court is of considered opinion that the instant criminal revision is without any merit and liable to be dismissed for more than one reasons, to be recorded hereinafter.

During the course of hearing, learned counsel for the petitioner could not substantiate the basic and foremost ingredient for commission of alleged offence under Sections 195 and 195-A of the Act. At very outset, learned counsel for the petitioner fairly concealed that falling of the building in question within the municipal area was sine qua non for the alleged commission of offence. Once that is so, the entire case would revolve around this material fact whether the school building raised by the respondent was falling within the municipal area or it was beyond the territorial jurisdiction of Municipal Committee, Budhlada. A close scrutiny of the evidence led by both the parties brings this court to this irresistible conclusion that the complaint-petitioner could not prove this material fact that the school building of the respondent was falling within the municipal area. I say so because witnesses of the complainant itself did not support its case nor any such official record was brought on the file to prove that the building in question was within municipal area. Having said that, I unhesitatingly conclude that the very first basic and foremost ingredient for the commission of offence u/s 195 and 195-A of the Act has been found to be conspicuously missing in this case because of which case of the petitioner falls flat.

Secondly, a combined reading of the statement of CW-2 Om Parkash and DW-4 Harbans Singh Walia would make it clear that the complainant has also failed to prove the due service of notices EX. PA and Ex. PB on the respondent, which was mandatory requirement of law. Thus, the impugned complaint was not maintainable in view of the fact that service of notices was not affected on the respondent.

Thirdly, PW-4 Vasdev deposed that he was given the authority to file the present complaint by Parminder Singh, Executive Officer vide Ex. PC. However, bare perusal of Ex. PC shows that the authority was not given by Parminder Singh, Executive Officer, but the same was given by Balwinder Singh Executive Officer. Thus, it is also not duly proved whether Vasdev was having due authority for filing the complaint.

No other argument was raised on behalf of the petitioner.

In the totality of the facts and circumstances of the case noted above, coupled with reasons aforementioned, I have no hesitation to conclude that the answer to the question posed at the outset is an emphatic no. In this view of the matter, the present criminal revision petition is bereft of any merit and it must fail.