Md. Hamid Hussain, J. - (1.) This appeal is by the State against the order of acquittal dated 18 -12 -1968 passed by the learned Sessions Judge, Kanpur, in Cr. A No. 181 of 1968.
(2.) Ram Adhar Respondent was prosecuted Under Sec. 13 of the U.P. Roadside Land Control Act, 1945 for having made certain unauthorised pucca construction on the roadside at Furlong 5 of Mile No. 88 on the Lucknow -Jhansi National Highway which had been declared controlled area Under Sec. 3(1) of the U.P. Roadside Land Control Act by Government Notification dated 12 -1 -1961. The construction made by the Appellant was in an area of 46' Ã - 37' 6" and within 45' from the centre of the road without obtaining the permission of the Collector as required Under Sec. 5 of the said Act. The allegations as contained in the complaint were that on 16 -4 -1967 the disputed constructions were noticed by Devanand Mate (PW 3) who reported the matter and thereupon the Overseer Nazir Ahmad (PW 2) inspected the site and found construction in progress and in spite of notice the Respondent did not desist from continuing the unauthorised construction.
(3.) The Respondent denied the allegations and contended that the building was an old building constructed before the coming into force of the United Provinces Roadside Land Control Act, 1945. He also produced one Kedarnath (DW 1) as a defence witness to state that the building which stood at the spot was about 18 or 20 years old. 4 The prosecution, in support of the case, examined four witnesses. Ram Chandra Misra (PW 1), who filed the complaint, Nazir Ahmad Overseer (PW 2), Devanand Mate (PW 3) and Durga Shanker (PW 4) who prepared the site plan on 10 -5 -67. 5. The trial court on the evidence on record, came to the conclusion that the Respondent was guilty of having made constructions within the controlled area without obtaining proper permit from the Collector Under Sec. 5 of the Act and accordingly convicted him Under Sec. 13(1) of the U.P. Roadside Land Control Act and sentenced him to pay a fine of Rs. 200/ - and in default to undergo simple imprisonment for a term of two months. 6. Aggrieved by the aforesaid order Ram Adhar went up in appeal to the learned Sessions Judge who was of the opinion that according to the evidence on record Ram Adhar had only constructed a wall which did not amount to the construction of a building as defined Under Sub -section (2) of Sec. 2 of the U.P. Roadside Land Control Act 1945. On this finding, the learned Sessions Judge, set aside the conviction and sentence of the Respondent as recorded by the trial court. 7. Aggrieved by the aforesaid order of acquittal the State has preferred this appeal. 8. Sri Girdhar Malviya, learned Assistant Government Advocate has contended that the lower appellate court has misconstrued the definition of "building" as contained in Sub -section (2) of Sec. 2 of the U.P. Roadside Land Control Act 1945 by holding that the construction of the wall did not amount to a "building". The contention of the learned Counsel is sound. "Building" has been defined in Sub -section (2) of Sec. 2 of the Act as under: "building" means a house, hut, shed or other roofed structure, for whatsoever purpose and of whatsoever material constructed and every part thereof and includes a wall or masonry platform or masonry ditch or drain, but does not include a tent or other such portable and merely temporary shelter. A plain reading of the aforesaid definition of 'building' clearly shows that 'building', as defined, not only means a house, hut, shed or other roofed structure and every part thereof but also includes a wall, or masonry platform or masonry ditch or drain. In the definition of 'building' the words 'means' and every part thereof and 'includes' are of particular significance. The subsequent use of the word 'includes' signifies that a wall, masonry platform or masonry ditch or drain are also contemplated in the definition of a 'building' independently and irrespective of a house, hut, shed or other roofed structure and every part thereof. A house cannot exist without walls and the wall or walls of a house will be covered by the words 'and every part thereof'. Therefore, the specific mention in the definition that 'building' includes a wall would become redundant unless the statute intended to include a wall other than the walls of a house. Foundation has to be Lald for erecting a 'house' as well as a 'wall' and the digging and filling in of the foundation for constructing thereon a house or a wall would come within the term of 'building' as contemplated under the Act. Having carefully examined the import of the word 'building' as defined in the Act, we hold that the digging and laying of foundation as well as constructing on it a wall independently of a house or roofed structure will also be deemed a building Under Sub -section (2) of Sec. 2 of the U.P. Roadside Land Control Act. 9. During the course of their argument the learned Counsel for the parties have referred to us the evidence of the four prosecution witnesses and the defence witness. 10. Nazir Ahmad (PW 2) is the Overseer. He has deposed that on 16 -4 -1967 Devanand reported to him about the, digging of the foundation by Ram Adhar and accordingly on 22 -4 -1967 he visited the site and saw that the foundation for a house was being dug on all the four sides in an area of 46' Ã - 37 1/2', that the earth which had been dug out of the foundation was lying close by and bricks were also lying there. He further stated that in spite of his asking the construction work to be stopped the same was continued. He denied the defence suggestion that previously there stood a house at the site and at that very site foundation had been dug for making a pucca house. 11. Devanand (PW 3) is the Mate. He has deposed that on 16 -4 -67 he found Ram Adhar Respondent digging and laying foundation for a house on the right side of the road at furlong 5 of mile 88 and previously there was a pond (talab) at the place where foundation was being dug. He reported the matter to the Overseer and accompanied him to the site and helped the Overseer in measuring the distance between the road and the disputed construction. In cross -examination Devanand stated that on his first visit to the site he saw only the foundation having been dug and there was no wall at that time but when he visited the site again he saw the construction of a wall had begun. He denied the defence suggestion that since the time of Zamindari there existed a house at the site and only a wall was being constructed. 12. Durga Shanker (PW 4) is the PWD Amin. He has deposed that on 3 -6 -1967 the Overseer gave a report (Ex. Ka 1) against Ram Adhar and on 4 -5 -1967 the Assistant Engineer ordered the issue of notice, that on 10 -5 -1967 he (the witness) inspected the site on the Luck -now -Jhansi Road at furlong 5 of Mile No. 88 and he found Ram Adhar having a wall constructed within 220 feet of the Lucknow -Jhansi Road without the requisite permission of the Collector, Kanpur. He filed a copy of the Government Notification by which the area of land adjoining on either side of the Lucknow -Jhansi road had been declared as the controlled area under the U.P. Roadside Land Control Act. In cross -examination Durga Shanker stated that Devanand Mate had accompanied him and had pointed out the particular site and then the witness inspected the site and verified the constructions as shown in the site plan which had been prepared by the Overseer. He further asserted that at the time of his inspection of the site he found the wall having been constructed up to the height of a door. 13. The defence witness Kedarnath deposed that he had been seeing the house in dispute since the last 18 to 20 years and during this period Ram Adhar had made no construction or alteration in the disputed house. When cross -examined he admitted that his flour mill was situated near the house of Ram Adhar. He also admitted that in the house of Ram Adhar there were four or five shops and some of the front shops were Kachcha while others were pucca and the shops were let out on rent. He asserted that the house of Ram Adhar was previously roofed with wooden beams but now the roof have been made pucca. 14. Having carefully examined the evidence of the witnesses produced by the prosecution and the defence, we are of the considered opinion that no reliance can be placed on the defence witness Kedarnath. He is a close neighbour of Ram Adhar and in all probability has come forward to support Ram Adhar in his defence on extraneous considerations. 15. The evidence adduced by the prosecution after scrutiny inspires confidence. The witnesses examined are, in no way, inimical to or biased against Ram Adhar. Nothing has been brought out in the cross -examination of the prosecution witnesses to suggest that they have concocted a false case against Ram Adhar. Ram Adhar admitted in his statement that his building stands on the disputed plot but his contention was that his building was an old one and was constructed before the coming into force of the U.P. Roadside Land Control Act. His answer to one of the questions put to him is to the effect: Meri emarat puraini hai. Qanun lagoo honey sey pahley bani hai. To the question as to why he had been prosecuted, his answer was : "Galat Fahmi sey". As regards the witnesses, Ram Adhar has stated that on account of enmity the prosecution witnesses were deposing in order to harass him. Nothing has been elicited out in the cross -examination of the prosecution witnesses to lend support to the defence contention about harassment and enmity. 16. Sri V.P. Gupta, learned Counsel, has contended that the prosecution witnesses have only stated about the foundation having been dug and for this act Ram Adhar could not be prosecuted. We are unable to accept this contention of the learned Counsel. The prosecution witnesses Devanand (PW 3) and Durga Shanker (PW 4) in cross -examination have deposed that wall had been constructed on the foundation. Therefore, from the evidence on record it is abundantly proved that Ram Adhar had dug the foundation and thereafter constructed a wall thereon. The digging of foundation as well as the construction of a wall thereon would come within the term "building" as defined in Sub -section (2) of Sec. 2 of the Act. Ram Adhar did not obtained previous permission of the Collector in writing for such construction as required Under Sec. 5 of the U.P. Roadside Land Control Act 1945 and therefore, he made himself liable for punishment Under Sec. 13 of the Act. The trial court was justified in convicting and sentencing Ram Adhar and there was no legal justification for the lower appellate court to set aside the conviction and sentence passed by the trial court. 17. Accordingly, the State appeal is allowed. The order of acquittal passed by the learned Sessions Judge dated December 18, 1968, in Cr. A. No. 181 of 1968 is set aside and Ram Adhar Respondent is convicted Under Sec. 13(1) of the U.P. Roadside Land Control Act and is sentenced to a fine of Rs. 200 and in default of payment of fine to under go simple imprisonment for a term of two months.;