Mahendra Bhushan, J. - (1.) This revision is directed against the appellate judgment of the learned Additional Sessions Judge, Kota dismissing the appeal of the accused-petitioner, who had been convicted by the learned Add. Munsif & Judicial Magistrate No. 2 (South) Kota under Sec 91 of the Rajasthan Urban Improvement Trust Act, 1959 (herein after referred to as the Act), and had been sentenced to pay a fine of Rs. 101/- or in default to suffer 15 days' simple imprisonment. The learned Magistrate also ordered that the improvements undertaken by the accused-petitioner without the permission of the Trust shall be demolished.
(2.) Sitaram Nagar, PW. 2, was the Inspector U. I. T. Kota in the year 1973 and 1974. His area of work was also Ballabhwadi, Kota. He visited Ballabhwadi, Kota on 28-6-1973 and found that on plot No. 165 which is owned by the accused-petitioner constructions in area of 40' x 10' in all 400 sq. ft. were being done by the accused-petitioner in the set back line. The accused-petitioner also unauthorised raised construction in set back line in an area 5' x 4' equal to 20 sq. ft. Notices were given to the accused petitioner on 20-9-1973, 25-8-73 and 1-11-73, but even after having received the notices the accused petitioner did not submit any reply. The said Inspector again visited the house of the accused petitioner on 17th of May, 1974 and found that in the space 11' x 10'left in the side of the house as per the rules, constructions have been raised by the accused petitioner and some other constructions had also been raised without permission. Inspite of the fact that the notices under Section 90 of the Act were given to the accused-petitioner, in this connection also the accused did not submit any reply. A complaint was filed and the learned Magistrate convicted and ordered the removal of the improvements under taken without the permission of the trust. In the appeal also the order of the learned Magistrate was upheld.
(3.) The submission of the learned Advocate for the accused-petitioner is that the learned Additional Sessions Judge, Kota has wrongly dealt the case under Sec 72 (iii) of the Act when that amendment was introduced only with effect from 28th Feb., 1976. According to him the alleged constructions without permission of the trust were made by the accused-petitioner in the year 1973-74 and under the Act as it stood then it was not necessary for the accused-petitioner to secure permission before making any construction. A look at Section 72 of the Act, as it stood prior to the amendment of 1976 which came into force with effect from 28th Feb., 1976 will show that there was no clause (iii) in sub-section (1) of Section 72 as it exists after the amendment. After the amendment it has been provided in clause (iii) that even if there is neither any Master-plan nor any scheme in force, the improvements can only be undertaken in accordance with general approval of the 7 rust. It will be useful to make a reference to a reported decision of this court in U. I. T. v. Madanlal of Udaipur, Rajasthan Criminal Decisions 1976 Vol. I page 231 . In that case dealing with the reference made by the learned Addl. District Magistrate, Udaipur, it has been held that in absence of any scheme it cannot be said that any building has been erected in an area specified in a scheme prepared by the Trust, and there can be no contravention of Section 90 of the Act. A look at Section 90 of the Act will show that it will only apply if any person without the permission of the Trust erects, acts to or alters any building or wall so as to make the same projected beyond the street alignment or building line shown in any plan finally adopted by the Trust or erects or "alters any building or wall in an area specified in the scheme." (The words given in inverted comas by me have been omitted with effect from 28th Feb., 1976). I have already stated above that the case relates to the year 1973-74 i. e. prior to the amendment of 1976. There is no material on record that Ballabhwadi scheme was an approved scheme of the Trust. There is also no material on record as to what was the plan finally adopted by the Trust and whether the improvements alleged to have been made in contravention of the Rules are beyond the street alignment or building line shown in the plan which was finally adopted by the Trust. Therefore, the accused-petitioner could not have been convicted under Section 91 of the Act. If the Trust wants to bring home the guilt to an accused person because of contravention of Section 90 of the Act or of other provisions of the Act, it is necessary for the Trust to produce the original plan allegedly sanctioned and also produce a plan to show as to what are the constructions in dispute allegedly made by a per on in contravention of the plan or the rules. It is in evidence that sanctioned plan for the constructions of the building was available in the office of the Trust but whosoever submitted the complaint and appeared for the Trust in the court of the learned Magistrate acted finally, no efforts were made either to produce a copy of the scheme or of the plan which was finally adopted by the trust. Under these circumstances in a criminal case the liability cannot be fastened on the accused petitioner. The learned Additional Sessions Judge, did not act in accordance with the law when relying on Section 72 (1) (iii) of the Act he found the accused-guilty because clause (iii) of sub sec. (1) of Section 72 of the Act was not existing in the year 1973-74 and only came to exist when Section 72 was substituted with effect from 28th February, 1976 by section 76 of the Rajasthan Act No. 26 of 1976 published in Rajasthan Gazette Extra-ordinary Part 4 (A) dated 17th April, 1976 at page 37. In the result this revision is accepted and the judgment of the learned Additional Sessions Judge, Kota and that of the learned Magistrate are set aside. The accused is acquitted of the charge under Section 91 of the U. I. T. Act, 1959. In consequence thereof the order of demolition is-also set aside. Fine, if paid, shall be refunded to the accused-Petitioner. Revision allowed.;