Ram Siya vs State and Another

V.N. Varma, J.—This is an application u/s 482 Code of Criminal Procedure and has been filed on the following allegations:

Assistant Engineer, Construction Division, PWD Etawah filed a complaint u/s 13 of the U.P. Roadside Land Control Act against the applicant in the Court of SDM Bidhuna. SDM Bidhuna took cognizance of the case and summoned the applicant. The case was then transferred to the Court of one Sri. Manmohan Singh, Extra Magistrate First Class. At that time he also happened to be an Assistant Collector First Class. Sri. Manmohan Singh found the case against the applicant proved and he, therefore, convicted him vide order dated 30-6-76. However, instead of awarding any sentence to the applicant, he passed an order that the construction of the applicant be demolished within three months. The applicant's contention is that the order is an illegal order and is also without jurisdiction and as such should not be allowed to stand. Accordingly, through this application he has prayed that this order be quashed.

I have heard the learned Counsel for the applicant at sufficient length and have also gone through the material present on record. The complaint in this case had been filed in the Court of SDM Bidhuna district Etawah. SDM Bidhuna took cognizance of the case and then summoned the applicant to stand his trial u/s 13 of the U.P. Roadside Land Control Act Thereafter the case was transferred to the Court of Sri. Manmohan Singh. He was Magistrate First Class and was also an Assistant Collector First Class. The order passed by Sri. Manmohan Singh shows that he had proceeded to decide the case as Magistrate First Class. He also passed an order holding the applicant to be guilty. It appears that while so holding the applicant guilty, he switched over from the position of a Magistrate to the position of an Assistant Collector and passed the impugned order to the effect that the construction of the applicant should be demolished. It was not open to Sri. Manmohan Singh to act as a Magistrate and also as an Assistant Collector at one and the same time. As a Magistrate he could have convicted the applicant u/s 13(1)(a) of the U.P. Roadside Land Control Act and could also have awarded him a proper sentence. It was, however, not open to him to order for the demolition of the applicant's construction. The order for demolishing the construction could have been passed by the Collector only under Sub-clause (2) of Section 13 of the U.P. Roadside Land Control Act. There is nothing on record to show that he had been invested with the power of a Collector under Sub-clause (2). Therefore, seeing the facts as a whole, I am certain that the order which Sri. Manmohan Singh had passed against the applicant in the case u/s 13 of the U.P. Roadside Land Control Act was not only illegal, but was also without jurisdiction. The impugned order cannot, therefore, be allowed to stand. Accordingly, I quash it. The case is remanded to the Court of SDM Bidhuna with the direction that he should try the case again in accordance with law.