VIRENDER SINGH, J. - (1.) NAVEEN Chopra, the revisionist has preferred this Revision against the judgement and order dated 19.11.2008, passed by the Additional Sessions Judge, Court No. 2, Bareilly in Criminal Appeal No. 06/2004 (Naveen Chopra vs. State of U.P. and Another), by which the appeal filed by the appellant/revisionist has been dismissed and the order dated 11.02.2004 passed by the Chief Judicial Magistrate, Bareilly in Case No. 6443/1998 (Bareilly Development Authority, Bareilly vs. Naveen Chopra @ Bobby), convicting the revisionist u/s 26(1) and 28(4) of the U.P. Urban Planning and Development Act, 1973 and sentencing the revisionist by a fine of Rs. 10, 000/- and Rs. 50/- per day till the date of removal of construction from the date of order u/s 26(1) of the Act and a fine of Rs. 400/- u/s 28(4) of the said Act and in default thereof to undergo simple imprisonment of one year, has been affirmed.
(2.) I have heard both the parties and perused the record. It is contended on behalf of the revisionist that the impugned order is against the law and the facts on record, because both the courts below have failed to consider the fact that in fact there was a garage which was constructed as far back as in the year 1969 by the grandfather of the revisionist Sri Madan Gopal Chopra, which was being repaired and no fresh constructions were made. Sri Madan Gopal Chopra, the grandfather of the revisionist was in receipt of a notice in the year 1976 from the Bareilly Development Authority, Bareilly (hereinafter referred to as the ''BDA'), regarding some construction saying the illegal construction, but the notice was later on withdrawn vide order dated 30.09.1977 by the authority mentioning therein that a garage and other buildings were constructed. The land of the property in question is still recorded as an agricultural land and it does not belong to BDA and therefore, the proceeding initiated against the revisionist by the BDA by way of illegally delegated powers of Vice Chairman to the Secretary, BDA is not tenable. As per provisions of the U.P. Urban Planning and Development Act, 1973, the Vice Chairman of the authority is said to have delegated his power to the Secretary, BDA vide order dated 08.07.1992 subject to the supervision of the Vice Chairman as is mandatory u/s 51 of the U.P. Urban Planning and Development Act, 1973, but it is apparent that the Vice Chairman was not supervising the action of his subordinate as the Vice Chairman had only delegated his powers to the Secretary, BDA to sanction the prosecution and not to file complaint, thus the complaint in the present case is without competence and jurisdiction which was liable to be dismissed outrightly.
(3.) LEARNED counsel for the respondent contended that there is no illegality in the impugned order either on the facts of the case or in the eyes of law and the impugned order has been passed by the learned Lower Court thereby exercising the jurisdiction vested in the court and since the revisionist was found constructing the building illegally without prior approval and permission of the authority, therefore, the learned Magistrate has rightly convicted the accused/revisionist and the learned Appellate Court has rightly dismissed the appeal filed by the accused/revisionist in this regard.;