PRAFULCHANDRA KANTILAL BHOJAK Vs. RAMESHCHANDRA PHARELAL SHAH
HIGH COURT OF GUJARAT
PRAFULCHANDRA KANTILAL BHOJAK
RAMESHCHANDRA PHARELAL SHAH
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(1.) These two appeals are filed by the present appellant who was the original complainant. The present respondent No. 1 wa the accused in the Summary Case Nos. 1065/78 and 39 of 1979 for the alleged offence of carrying out illegal construction without the permission of Patan Municipality and therefore punishable under sec. 155(7) of the Gujarat Municipalities Act 1963 (Act XXXIV of 1964) hereinafter referred to as the Act. According to the complainant who is an employee of the Patan Municipality the accused had-illegally constructed some additional portion in his house. After recording the evidence the learned Magistrate was satisfied that no offence was committed by the accused. Hence by his judgment and order dated 7/06/1979 the learned Judicial Magistrate First Class Patan acquitted the accused in both the cases.
(2.) It is not in dispute that the original accused who is respondent No. 1 in these two appeals had given an application to the Municipality on 27/01/1978 seeking permission to make additional construction in his house. It is also agreed on behalf of the Municipality that a plan was submitted with the aforesaid application. The applicant went to the office of the Municipality on 10/02/1978 for inquiring about the decision regarding his application. On that day the Surveyor of the Municipality drew the attention of the applicant to the fact that there was no date mentioned on the application. He was asked to put the date 10/02/1978 which the applicant did. The Municipality did not give any reply to the aforesaid application either granting permission or rejecting the same till 8/03/1978 when the Municipality by an intimation informed the applicant that his application for the additional construction is rejected as the land in question is likely to be acquired for the construction of a Town Hall. The applicant was also told in the aforesaid rejection letter that the acquisition proceedings will be carried out in due course. The present respondent No. 1 (Original accused) carried out the construction oh or after 13-3-78 under the bona fide belief that under the provisions of the Act he was entitled to construct in absence of the rejection of his application by the Municipality within one month of making such application. According to him 26/02/1978 one month was completed and that till then and quite sometime thereafter no intimation was received from the Municipality rejecting his application he offence under sec. 155(1) punishable under sub-sec. (7) of the same section;
(3.) Mr. S. N. Shelat the learned Counsel for the Patan-Municipality has urged that the original accused had carried out the construction illegally before the one month period was over. According to Mr. Shelat the application cannot be-entertained until it is completed by submitting all the documents etc. required for the purpose. In his submission the application given on 27/01/1978 was not a completed one arid that the same was completed on 10/02/1978 Therefore the period of one month will be calculated from February 10 and riot January 27. According to him the-letter of rejection dated 8/03/1978 was given within one month and hence the original accused was not entitled to construct as per his application. This contention of Mr. Shelat is obviously incorrect because it would not be correct to say that the application date January 27 was not a complete one and tit it was completed on February 10. On February 10 all that had happened was that the date was put on the plan which was inadvertantly-not put on the day on which the plan was submitted with the original application of January 27. It is true that the date January 27 should have been put on the plan also just as it was put on the application The fact that the date was not put on the plan does not make the application incomplete. In fact it was improper on the part of the Municipal Surveyor to ask the applicant to put the date on the Plan as 10th of the February when it was in fact submitted on January--2-7. The present respondent No. 1 was entitled to regard his application having been properly submitted on January 27 and in the absence of receiving any reply from the Municipality within one month i.e. on or before February 26 he could legitimately carry on the construction as permitted by the provisions of sec. 155(5) of the said Act.;
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