H.C.P. Tripathi, J. - (1.) APPLICANT Smt. Premwati was convicted by a Magistrate First Class, Under Section 13(1) of the UP Roadside Land Control Act and sentenced to pay a fine of Rs. 100/ - in default of which she was directed to undergo one month's simple imprisonment. Her conviction and sentence were upheld by the Civil and Sessions Judge, Agra; hence this revision.
(2.) ACCORDING to the prosecution Applicant constructed a boundary wall without the permission of the District Magistrate as required Under Section 5 of the Act within 220 ft., from the centre of the Bombay Delhi Road which has been declared a controlled area under the Act. Applicant took up the plea that it was an old construction for which her husband had been given permission by the Municipal Board, Agra and also filed the original order granted by the Municipal Board on 23 -7 -1952. Learned Counsel for the Applicant has raised one point in support of this revision. It is contended that on the prosecution evidence itself it is clear that the Applicant had applied to the District Magistrate for the construction of the boundary wall in accordance with Section 6 of the Act and there is nothing on the record to suggest that the District Magistrate had refused to sanction or if so such refusal had been communicated to the Applicant. There is force in this contention.
(3.) SRI M.R. Garge, Overseer, (PW 1) has stated that for the disputed construction the Applicant had asked for the permission of the District Magistrate because it fell within 60 ft. of the centre of the road. The Executive Engineer recommended that the permission should be refused. The prosecution has also brought on record the original letter of the Executive Engineer addressed to the City Magistrate recommending that the permission should be refused. It is thus previous that the Applicant did apply for the grant of permission for building the disputed boundary wall. There is no evidence, however, on the record to show that the permission was refused by the City Magistrate or the District Magistrate and that such a refusal was communicated to the Applicant in time. Sri Garge does not state that the Applicant was informed that her application for permission had been rejected. He also does not give the date of that application. Section 6(6) of the Act reads: If at the expiration of a period of three months after an application under Sub -section (1) has been made to the Collector no order in writing has been passed by the Collector permission shall be deemed to have been given without the imposition of any conditions.;