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2017 DIGILAW 663 (HP)

Rameshwar Mahant v. Planning Officer

2017-06-13

TARLOK SINGH CHAUHAN

body2017
JUDGMENT Tarlok Singh Chauhan, J. (Oral) - By medium of this petition under section 482 of the Code of Criminal Procedure, 1973 the petitioners have sought quashing of the order dated 16.7.2016 passed by the learned Additional Sessions Judge, Kullu in Criminal Revision No. 16/2015 and have further sought quashing and dismissal of the complaint case No. 2/2015 filed against them by the respondent before the learned Chief Judicial Magistrate, Kullu. 2. The facts, giving rise to the present petition, are that a complaint under Section 38 of the Himachal Pradesh Town and Country Planning Act, 1977 (in short "the Act") came to be instituted against the petitioners by the respondent on the allegations that on 27.1.2015 they were raising unauthorized construction over land comprised in Khasra Nos. 1929, 1930, 3730/1931, 3732/1933 and 1932 in Phati Dhalpur, Tehsil and District Kullu, H.P. in the shape of R.C.C. structure measuring slab area of 146.00 sq.mts. without obtaining prior permission for the same as required under Section 16 of the Act. 3. On the basis of the complaint, the learned Chief Judicial Magistrate after taking cognizance issued summons to the petitioners vide order dated 11.8.2015, which was assailed by the petitioners before the learned Additional Sessions Judge, Kullu by way of criminal revision, however, the same was dismissed vide order dated 16.7.2016. 4. Aggrieved by the aforesaid orders, the petitioners have filed the instant petition mainly on the grounds that they had not raised any unauthorized construction, as is mentioned in the complaint, because they have already sold their shares in the land comprised in Khasra Nos. 1930, 3730/1931, 3732/1933 and 1932. Now, they are the owners only to the extent of 3 biswansis i.e. 3/880 share in Khasra No. 1929, 3 biswansis in Khasra No. 1930, 3 biswansis in Khasra No. 3730/1931 and 1 biswansis in Khasra No. 3732/1933. The petitioners have sold their entire share in land comprised in Khasra No. 1932 and this fact could have been verified from the jamabandi enclosed with the complaint, but the learned courts below did not make any inquiry nor perused the documents enclosed with the complaint. It is further averred that no new construction over Khasra Nos. 1930, 3730/1931, 3732/1933 and 1932 was being carried out by them and moreover, Khasra Nos. 1932 and 3732/1933 are otherwise vacant on the spot. It is further averred that no new construction over Khasra Nos. 1930, 3730/1931, 3732/1933 and 1932 was being carried out by them and moreover, Khasra Nos. 1932 and 3732/1933 are otherwise vacant on the spot. It is further averred that in absence of demarcation, no notice under the Act could have been issued to the petitioners. 5. The respondent has filed the reply stating therein that the case was lodged against the petitioners after receiving a compliant regarding unauthorized construction from one Usha Rani, resident of Sain Kunj, Dhalpur, District Kullu. The official of the respondent/Junior Engineer had inspected the site and it was found that the petitioners had started construction over the land without obtaining prior permission for the same, as required under Section 16(a) of the Act. Accordingly, the respondent had issued notice dated 28.8.2014 under Section 39 of the Act to petitioner No. 1 whereby he was directed to discontinue the development work and to restore the land to the condition existing before development work. The official of the respondent time and again inspected the site of the petitioners i.e. on 16.10.2014, 17,1,2015, 24.1.2015, 19.3.2015 and 21.3.2015; and it was found that the petitioners were still carrying on unauthorized construction without obtaining prior permission of the respondent. Accordingly, notices dated 28.10.2014 under Section 39 (A) and thereafter, under Section 39(A)(i) of the Act were also issued against the petitioners for violating the terms and norms of the Act. 6. I have heard learned counsel for the parties and have also gone through the records of the case. 7. Admittedly, the only revenue record available on the file is jamabandi for the year 2001-2002 pertaining to Phati Dhalpur, wherein the land comprised in Khasra Nos. 1929, 3729/1931, 3731/1933, 3733/1935 is recorded in the ownership and possession of Usha Rani and Indra Kumari, daughters of Pran Nath, in equal shares. Obviously, therefore, it is difficult to conclude that it is the petitioners, who would be carrying out the construction over the disputed land, especially when it is not even the case of the complainant, Usha Rani before the respondent that the petitioners had forcibly taken possession of the land in question. This assumes importance in view of the specific stand taken by the petitioners to the effect that they have already sold the shares in the land in question. 8. This assumes importance in view of the specific stand taken by the petitioners to the effect that they have already sold the shares in the land in question. 8. That apart, it is admitted case of the respondent that the land has not been demarcated, therefore, in the absence of the demarcation how the respondent could conclude that the petitioners were carrying out construction over the land mentioned in the notice is any-body''s guess. It is relevant to refer to ground (iv) of the reply filed by the respondent to the instant petition, the relevant portion thereof reads thus:- "(iv)....... The title, ownership and the possession of the site/land is still in question, which is ambiguous and not clear. The replying respondent had requested the revenue authorities seeking demarcation of the site vide letter dated 21.2.2015, annexed as Annexure R-VIII, letter dated 19.3.2015 annexed as Annexure R-IX. The revenue authorities/Tehsildar Kullu had replied to the replying respondent seeking demarcation showing his inability to do the same since the revenue record were not legible." 9. It is more than settled that initiation and continuation of criminal proceedings is serious matter and can only be resorted to when a clear case for the same is made out or else the continuation of such proceedings would be construed to be an abuse of process of law. This incident is a classical example of such misuse of process of law, therefore, the proceedings, as initiated against the petitioners vide complaint dated 27.5.2015, cannot be countenanced as the same is nothing, but an abuse of process of law. 10. Therefore, in such circumstances, this Court is left with no other option but to quash the complaint case No. 2/2015 filed against the petitioners by the respondent before the learned Chief Judicial Magistrate, Kullu, in its entirety. Resultantly the present petition is allowed and the order dated 11.8.2015 passed by the learned Chief Judicial Magistrate, Kullu in Complaint Case No. 2/2015, as affirmed by the learned Additional Sessions Judge, Kullu vide order dated 16.7.2016 in Criminal Revision No. 16/2015 is quashed. Pending application(s), if any, also stands disposed of.