Kalyan Dutta, J. - (1.) This is a reference made by the Additional District Magistrate, Udaipur, with a recommendation that the unauthorised construction made by Madan Lal, non-petitioner, in an area specified in a scheme framed by the Urban Improvement Trust, Udaipur, hereinafter referred to as the Trust, may be ordered to be demolished or any other suitable order may be passed because the learned Municipal Magistrate, Udaipur, who tried Madan Lal, non-petitioner, for non-compliance with notice under S. 90 of the Rajasthan Urban Improvement Act, 1950, hereinafter to as the Act, failed to pass an order relating to demolition of the unauthorised construction.
(2.) The reference arises under the following circumstances: The Trust decided to frame a scheme for an urban area, namely, Aghat Nagar and requested the State Government to issue a notification specifying such area and declaring that the Trust had decided to frame a scheme for such area. It will not be out of place to mention that at the request of the Trust the State Government issued a notification No. F 20(8) Nyas 69 dated 18th November, 1969 (Ex. P. 4). In this notification, the urban area, for which a scheme was decided to be framed, was specified in detail and a declaration was made about the decision of the Trust to frame a scheme for such area. It was alleged that after issuance of the said notification Madan Lal, non-petitioner started reacting a building on a piece of land falling within the notified area. The Trust sent its Building Inspector to inspect the site and prepare a site-inspection memo and a site-plan. Shri Karim Bux, Building Inspector, thereupon reached the place where Madan Lal was erecting a building. He prepared a site-inspection memo and a site-plan, which is Ex. P. 1 on the record. After site inspection, he made a report to the Secretary of the Trust that Madan Lal had been constructing a building on the land falling within the notified area without obtaining previous permission from the Trust. A notice under S. 90 of the Act was issued to Madan Lal. non-petitioner directing the latter that the erection be stopped and that the building be demolished and in case the above directions were not complied within the time specified in the notice, legal action would betaken against him under S. 91 of the Act. The notice was served upon Madan Lal on 5th may, 1970, as is evident from the endorsement made to this effect on it by the process server Hari Ram. According to the prosecution, Madan Lal did not comply with the notice and continued to erect the building. Thereupon, a complaint was filed against him in the court of the Municipal Magistrate, Udaipur for non-compliance with directions contained in the notice.
(3.) The learned Municipal Magistrate tried Madan Lal, non-petitioner, and found him liable for penalty for non-compliance with the notice. The Municipal Magistrate accordingly sentenced Madan Lal to pay a fine of Rs. 300 and in default of payment of fine to undergo simple imprisonment for one month. The learned Magistrate, however, did not think it proper to pass any order regarding demolition of unauthorised construction although he was requested by the Trust to passsuch an order. Aggrieved by the order of the Municipal Magistrate, the Trust filed a revis-on-petition in the court of the learned Additional District Magistrate, Udaipur. The learned Additional District Magistrate. Udaipur, heard the revision-petition and came to a conclusion that the Municipal Magistrate committed a grave error of law in not passing an order for demolition of the unauthorised construction raised by Madan Lal on a place of land falling within the area specified in the scheme and that he was bound to order demolition of the building which had been erected by Madan Lal without obtaining previous permission of the Trust. The Additional District Magistrate, Udaipur, has, therefore, made this reference.;