IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Appeal No. 924-SBA of 1997 Date of Decision : January 08, 2010 General Manager (Regulatory), Punjab Urban and Development Authority ....Appellant Versus Nath Singh .....Respondent CORAM : HON'BLE MR. JUSTICE T.P.S. MANN Present : Mr. Ashish Grover, Advocate for the appellant. None for the respondent. T.P.S. MANN, J. (ORAL) The appellant is before this Court for challenging the judgment dated 14.2.1997 passed by Judicial Magistrate 1st Class, Kharar, whereby complaint filed on its behalf against Nath Singh accused-respondent for the offence under Section 12 of the Punjab New Capital (Periphery) Act, 1952 (hereinafter referred to as 'the Act'), was dismissed. According to the complainant, a notification was issued under Section 3 of the Act on 16.8.1963 whereby the area falling within 10 miles radius from the outer boundary of the land acquired for the capital was declared as controlled area. Once an area was declared a controlled area, then under Section 5 of the Act no person could erect or re-erect, layout any means of access to a road except with prior permission of the Deputy Commissioner in writing. Under Section 11 of the Act, no land within the controlled area could Crl. Appeal No. 924-SBA of 1997 -2- be used for purpose other than that for which it was being used on the date of notification and no land could be used for purposes of charcoal, pottery kiln or brick kiln, except with the permission from the Deputy Commissioner. Village Bhago Majra, to which the respondent belonged, fell within the controlled area. Pritam Singh, Junior Engineer of the complainant-Board inspected the site of the accused and submitted his report with rough site plan mentioning therein that the accused had constructed a house in the controlled area in violation of the provisions of the Act. Accordingly, notice under Sections 5 and 11 of the Act was issued to the respondent to remove the structure as it had been illegally raised. Despite the same, the respondent did not remove the structure. After having been summoned in the complaint, notice of accusation was served upon the respondent, to which he pleaded not guilty and claimed trial. In support of its case, the complainant examined PW1 Pritam Singh, Junior Engineer, who stated about having visited the spot on 29.2.1978 and found that the respondent had constructed a residential house outside the Lal Lakir. He proved his report Ex.P1 and site plan Ex.P2. He also proved the notice Ex.P3 sent to the respondent. According to him, despite receipt of the notice, the respondent did not demolish the structure. In his statement under Section 313 Cr.P.C., the respondent pleaded false implication. In his defence, he appeared as his own witness and stated that the construction had been raised by his predecessor and he was residing in the house so built. He Crl. Appeal No. 924-SBA of 1997 -3- tendered in evidence revenue reports Exs. D1 to D4. The trial Court came to the conclusion that there was no evidence about the raising of the construction within the controlled area by the respondent. No date of the construction had been mentioned by PW1. On the other hand, the respondent while appearing as DW1 had mentioned that the construction was raised by his predecessor. As per revenue reports Exs. D1 to D4, the construction was already in existence at the spot. Therefore, the prosecution was not able to show that the construction was raised after the area was declared a controlled area. Accordingly, the respondent was given the benefit of doubt and acquitted of the charge against him. Alongwith the present appeal, the complainant-appellant filed Crl. Misc. No. 21478 of 1997 so as to place on record letter dated 30.6.1978 as additional evidence. It was mentioned that in reply to the show cause notice issued to him, the respondent replied vide aforementioned letter dated 30.6.1978 admitting therein that he had raised the construction after the area was declared as controlled area. This letter was not traceable earlier in the office and for that reason it could not be produced before the Court below. A perusal of the letter dated 30.6.1978 allegedly written by the respondent to the appellant-Board would reveal that the construction was raised by him due to scarcity of space in the earlier house. Moreover, he was not aware of violation of the Act and, therefore, could not take prior permission. He had, accordingly, prayed Crl. Appeal No. 924-SBA of 1997 -4- for granting him the necessary permission. As per the complainant itself, the aforementioned letter was written by the respondent in the year 1978. If it had been so written by the respondent and received by the complainant, it was required to be kept in the file pertaining to the issuance of notice against the respondent and not at any other place. Under these circumstances, it cannot be said that the complainant was not aware of its existence when it examined evidence in support of the allegations made against the respondent. Now, after the trial Court observed about lack of evidence as to when the alleged construction was raised by the respondent that the complainant is trying to fill in the lacuna by bringing on record the said letter as additional evidence and, that too, in the appeal against acquittal. As such, this Court is of the view of that the complainant cannot be allowed to bring on record letter dated 30.6.1978 by way of additional evidence. In the absence of any material on record as to when the respondent had undertaken the construction, it cannot be said that such construction was raised after issuance of notification under Section 3 of the Act whereby the area falling within the revenue estate of village Bhago Majra had been declared a controlled area. Resultantly, I do not find any merit in the appeal, which is, therefore, dismissed. (T.P.S.MANN) January 08, 2010 JUDGE satish