Bhimaji Narayanrao Lokur, J. - (1.) Sardari Lal, the husband of petitioner No. 1, was convicted and sentenced to a fine by the Sub -Divisional Magistrate u/S. 13(1)(a) of the Roadside Land Control Act, 1955, (hereinafter refereed to as "the Act") for making unauthorized constructions within the controlled area and was also directed to remove the constructions. It transpired that the land on which the said constructions were made belonged to the two petitioners and hence the Additional Collector, purporting to act u/S. 13(2) of the said Act, ordered the two petitioners to restore the encroached portion of the controlled area to its original state. The validity of this order has been called into question in this petition. S. 13 of the Act reads as follows: 13 (1) Any person who - - (a) erects or re -erects any building or makes or extends any excavation or lays out any means of access to a road in contravention of the provisions imposed by an order u/S. 7, or (b) uses any land in contravention of the provisions of sub -S. 12, shall be punishable with fine which may extend to five hundred rupees and, in case of continuing contravention with a further fine which may extend to fifty rupees for every day after the date of the first conviction during which he is proved to have persisted in the contravention. (2) Without prejudice to the provisions of sub -S. (1), the Collector may order any person who has committed a breach of the provisions of the said sub -section to restore to its original state or to bring into conformity with the conditions which have been violated, as the case may be, any building or land in respect of which a contravention such as is described in the said sub -section has been committed, and if such person fails to do so within three months of the order, may himself take such measures as may appear to him to be necessary to give effect to the order, and the cost of such measures shall be recoverable from such person as arrears of land revenue. The contention of the petitioners is that an order u/S. 13(2) cannot be made unless the person against whom the order is made has been convicted u/S. 13(1). Though the Sec. is not happily drafted, it appears to me that the Collector can take action u/S. 13(2) even against a person who has not been proceeded against u/S. 13(1) if he is satisfied that the person has made unauthorized constructions in the controlled area. S. 13(1) provides for a judicial trial by a court specified in S. 14, while S. 13(2) confers the power on an Executive Officer, namely, the Collector. The opening words of S. 13(2) - -"Without prejudice to the provisions of sub -S. (1)" significantly imply that the order of the Collector u/S. 13(2) is independent of and not consequential upon the trial and conviction u/S. 13(1). It is open to the appropriate authorities either to move a court for conviction and sentence of a person for committing the prohibited acts within the controlled area or to move the Collector to restore the controlled area to its original state.
(2.) The next contention of the petitioners is that the Collector cannot make an order u/S. 13(2) without giving to the person concerned, in compliance with the principle of natural justice, an adequate opportunity to meet any allegation that he has committed breach of the law. This contention is not without force. S. 13(2) requires the Collector to come to a conclusion that a person has committed a breach of the law before he makes an order thereunder. To my mind, the Sec. necessarily implies that the person concerned ought to be given an opportunity to show cause against any allegation of breach of the law by him before the Collector decides that the person has violated the law. It is an elementary principle of natural justice that a person cannot be condemned without being heard.
(3.) The learned Standing Counsel urged that the provision of S. 13(2) allows three months' time to the person against whom the order is made to comply with it and that person, if advised, would be at liberty to have the order set aside by the Collector by making a representation. My attention was drawn to S. 133 of the CrPC under which a Magistrate can make, inter alia, an order for removal of unlawful construction without giving an opportunity to the person causing the obstruction and which permits that person to move the Magistrate to set aside the order. S. 133(1) envisages that the Magistrate can take evidence, if any, as he thinks fit before making the order and the Magistrate does without doubt call upon the person to explain himself before making the order; the order of the Magistrate is a conditional order and not a final order as u/S. 13(2) of the Act; S. 133 of the CrPC also makes an express provision, which is absent in S. 13(2) of the Act, enabling the person concerned to have the order set aside. S. 13(2) of the Act is thus not comparable with S. 133 of the CrPC and any decision of the Collector under that Sec. cannot be made by the Collector in violation of the fundamental principles of natural justice. In the view I take, the orders made by the Additional Collector u/S. 13(2) of the Act against the petitioners (annexures B -1 and B -2) are bad in law as being repugnant to the principles of natural justice and are therefore hereby set aside. No order as to costs.;