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2008 DIGILAW 1580 (RAJ)

Uma Ram @ Om Prakash v. State of Rajasthan

2008-07-01

BHANWAROO KHAN

body2008
JUDGMENT 1. - This misc. petition is directed against the order dated 23.4.2008 passed by Judicial Magistrate, Ist Class, Rawatsar by which he has ordered that the complaint filed by Brij Lal against the petitioner for the offence under Sections 170, 203-A of the Rajasthan Municipalities Act, 1959 (for short 'the Act of 1959' hereinafter) be investigated by an officer not below the rank of Deputy Superintendent of Police. 2. Brief facts of the complaint filed are that the petitioner, who has been arrayed as an accused in the complaint is a clever man and is in the habit of encroaching on the land belonging to the Municipality and use to sell the said encroached land to different persons. He has encroached upon 4-5 plots illegally from which he should be removed immediately. The petitioner has made a source of income by taking into possession on the municipal land. Hence, complaint was filed against him.Heard learned counsel for the petitioner. 3. Learned counsel for the petitioner pleaded that for the offence under Section 203 of the Act of 1959 it is only the Municipal Board which can file a complaint and an individual has no locus standi to file the complaint for the offence alleged to have been committed under Section 203 of the Act of 1959. 4. Learned counsel for the petitioner cited judgment of the Hon'ble High Court in Nijamuddin & Ors. v. State of Raj. & Anr., reported in 1994 Cri. L.J. 2344 and pleaded that since the complaint has not been filed by the competent authority having the statutory powers under the Act, it cannot be continued against him. This complaint submitted against the petitioner and ordered to be investigated by the Magistrate cannot be sustained and be quashed. 5. The cited judgment specifically deals with Section 265 of the Act in which it has been mentioned that : "the power to prosecute vests in the Municipal Board and not with any of the private individual. It is only the Municipal Board which can file a complaint for the contravention of any of the provisions of the Rajasthan Municipalities Act, Rules or the Bye-laws. section 203 of the Act deals with the encroachment or obstruction made on the public land. It is only the Municipal Board which can file a complaint for the contravention of any of the provisions of the Rajasthan Municipalities Act, Rules or the Bye-laws. section 203 of the Act deals with the encroachment or obstruction made on the public land. Criminal Justice is an instrument of social control and its object is to protect the society from the internal disorder or disruption." Further it has been held that : "in such a matter, the aggrieved party is the Municipal Board, which is the custodian of the citizen living in the municipal area and has to see that no encroachment be made on the public property and to follow the procedure provided under the provisions of the Act for the removal of the encroachment and, therefore, it is for the Municipal Board to take all necessary steps for the clearance of the obstruction or the encroachment made by an individual for bringing the person to the light who has acted in contravention of the provisions of the Act or the Rules against the interest of the residents of the Municipal area and to file a complaint or to take all the necessary steps but an individual cannot be allowed to file a complaint and to launch prosecution for vindicating his personal grievances and, therefore, on account of any personal grievances or for personal gains or with any oblique motive or consideration, if any, complaint has been filed by an individual for launching the prosecution then the same deserves to be dismissed at the threshold. The cognizance has been taken by the learned Magistrate on the complaint filed by an individual complainant which hRs. been maliciously instituted with an oblique motive to wreck personal vengeance against the petitioner(s)." 6. From the above cited judgment and the aim and object of Sections 170 and 203 as also Section 265 of the Act of 1959, it is clear that power to prosecute about the land belonging to the Municipality vests in the Municipality itself who is custodian of the public property. In the instant case the complaint is filed by individual who as per provisions of the Act is not authorised to initiate the proceedings against the petitioner, in such circumstances the complaint filed against the petitioner is without any authority and power. 7. In the result, the misc. In the instant case the complaint is filed by individual who as per provisions of the Act is not authorised to initiate the proceedings against the petitioner, in such circumstances the complaint filed against the petitioner is without any authority and power. 7. In the result, the misc. petition filed b; the petitioner is allowed and order dated 23.4.2008 passed by Judicial Magistrate, Ist Class, Rawatsar directing the police to investigate the matter for the offence under Section 203 of the Act of 1959 is quashed and set-aside and the complaint filed by one Brij Lal against the petitioner is quashed. The Municipal Board is free to 2 prosecute the petitioner, if so desire, and advise for removal of the encroachment, if there be any. It is certainly the duty of the Municipality to look after the public property and get removed the encroachment if made by any of the citizens in their jurisdiction.Petition allowed. *******