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2012 DIGILAW 190 (CHH)

BHANWAR LAL PARAKH v. STATE OF C. G.

2012-08-01

T.P.SHARMA

body2012
ORDER As per Hon'ble Shri T.P. Sharma, J.:- 1. By this petition under Article 226 of the Constitution of India the petitioner has prayed for following substantial reliefs :- "B. This Hon'ble Court may kindly be pleased to quash the: notice dated 7.7.2009 bearing No.LUV/BS/09/175 (Annexure P-1) issued by respondent No.6-Municipal Corporation, Durg. C. This Hon'ble Court may kindly be pleased to quash the First Information Report bearing No.372/09 dated 23.7.2009 (Annexure P-2) registered under Section 292 (c) (3) of the Act, 1956 in Police Station City Kotwali, Durg by the respondent No.5 herein." 2. As per averments made in the writ petition, the petitioner has constructed a house over his own land after obtaining due permission for construction from the respondent No.6 vide order dated 30.10.2002. On the basis of complaint dated 4.7.2008 made by five persons to whom the petitioner had sold the flats, FIR under Crime No.372/09 has been registered on 23.7.2009 for the offence punishable under Section 292-C (3) of the C.G. Municipal Corporation Act, 1956 (henceforth 'the Act of 1956'). The petitioner is, not a colonizer, he has not constructed any colony and thus he has not violated any conditions of the permission granted by the respondent No.6 for construction of house. Even otherwise, as per provisions Section 398 of the Act of 1956, the respondent No.6 is not competent to prosecute the petitioner after six months of the date of offence and therefore no investigation can be done on the basis of alleged first information report registered under Crime No.372/09 on 23.7.2009, which itself is time barred because the report has been registered after more than six months of such information received from the alleged owner of the flats. 3. Heard learned counsel for the parties and perused the records. 4. Learned counsel for the petitioner submits that the petitioner is neither a colonizer nor has constructed a colony. He was owner of the aforesaid building. He and other co-owners have sold the different parts of the building to different persons. Aforesaid flats have been constructed in the year 2003 after obtaining due permission from the respondent No.6. The respondent No.6 was having knowledge of the construction of flats in the year 2002 itself. FIR has been registered on the basis of written complaint dated 4.7.2008 made by five flat owners. Aforesaid flats have been constructed in the year 2003 after obtaining due permission from the respondent No.6. The respondent No.6 was having knowledge of the construction of flats in the year 2002 itself. FIR has been registered on the basis of written complaint dated 4.7.2008 made by five flat owners. On 30.7.2009, after more than one year of such complaint, in light of the embargo created under Section 398 of the Act of 1956, the police should not have registered the first information report relating to time barred offence. Alleged FIR is required to be quashed by issuance of appropriate writ. 5. On the other hand, learned counsel appearing for the respondents vehemently oppose the petition and submit that the offence under Section 292-C of the Act of 1956 is continuous in nature. Even as per written complaint dated 4.7.2008, the petitioner is not providing required facilities to the flat owners. They further submits that after receiving the complaint, notice dated 7.7.2009 has been issued to the petitioner which was replied by the petitioner vide his reply dated 16.7.2009. In the year 2009 the petitioner has also constructed covered parking for the inhabitants of the said building. Thereafter the report has been lodged and thus the offence is continuing in nature and cause of action also arose on the date when the petitioner started construction of covered parking. The report has not been registered after six months of the offence or knowledge of the offence. They further submit that the petitioner has failed to make out a case for interference in exercise of writ jurisdiction in terms of Article 226 of the Constitution of India. 6. Section 292-C of the Act of 1956 reads thus:- “292-C. Punishment for illegal colonization.-(1) A Colonizer, who in contravention of the provisions of Section 172 of the Madhya Pradesh Land Revenue Code, 1959 (No.20 of 1959) and the rules made thereunder, diverts the land or part thereof, commits an offence of illegal diversion of land. (2) A colonizer who divides his lands into plots or the land of any other person with the object of establishing a colony in breach of the requirements contemplated in this Act or the rules made in this behalf, commits an offence of illegal colonization. (2) A colonizer who divides his lands into plots or the land of any other person with the object of establishing a colony in breach of the requirements contemplated in this Act or the rules made in this behalf, commits an offence of illegal colonization. (3) Whoever Commits or abets the commission of an offence of illegal diversion or illegal colonization shall be punished with an imprisonment of not less than three years and not more than seven years or with a minimum fine of ten thousand rupees or with both. Such offence shall be a cognizable offence. (4) Whoever constructs a building in an area of illegal diversion or illegal colonization commits an offence of illegal construction. (5) Whoever commits an offence of illegal construction shall be punished with imprisonment of not less than three years and not more, than seven years or with a minimum fine often thousand rupees or with both. Such offence shall be a cognizable offence." 7. Limitation of time for prosecution is provided under Section 398 of the Act of 1956 which is quoted below:- "398. Limitation of time for prosecution.-No Magistrate shall take cognizance of any offence under this Act or under any rule or bye-law made thereunder unless complaint of such offence is made- (a) within six months next after the date of the commission of such offence; or (b) if such date is not known or the offence is a continuing one, within six months next after the date on which the commission or existence of such offence was first brought to the notice of the Commissioner or of any officer or servant whose duty it is to report such offence to the Commissioner." 8. As per averments made by the petitioner, documents annexed with the petition and reply of the respondents, initially building has been constructed by the petitioner after obtaining necessary permission from the respondent No.6 but thereafter he sold different parts of the building to different persons. He has not provided necessary facilities to them. He has started construction of covered parking in the year 2009. The aforesaid facts prima facie show that the present petitioner has constructed a colony without obtaining permission in this regard and he is still making construction for the colony. Therefore, the offence in the present case is a continuing one and the same requires investigation. 9. He has started construction of covered parking in the year 2009. The aforesaid facts prima facie show that the present petitioner has constructed a colony without obtaining permission in this regard and he is still making construction for the colony. Therefore, the offence in the present case is a continuing one and the same requires investigation. 9. Considering the rival submissions and the fact that the offence is continuing in nature, I do not find any ground for issuance of appropriate writ for quashment of First Information Report bearing No.372/09 dated 23.7.2009 (Annexure P-2) registered under Section 292 (c) (3) of the Act of 1956 against the petitioner in the Police Station City Kotwali, burg. 10. Consequently, the writ petition is liable to be and is hereby dismissed. No order as to costs. Petition Dismissed.