Rajasthan High Court
Radhey Shyam Agarwal And Ors vs J D A on 14 May, 2024
Author: Sudesh Bansal
Bench: Sudesh Bansal
[2024:RJ-JP:22405]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Criminal Miscellaneous (Petition) No. 307/2013
1. Radhey Shyam Agrawal S/ Shri Nathu Lal Agrawal
2. Ravindra Kumar Agrawal S/o Shri Radhy Shyam Agrawal
3. Mahendra Kumar S/o Shri Radhey Shyam Agrawal
All R/o Plot No.B-40, Ganesh Nagar, Jaipur (Raj.)
----Petitioners
Versus
Jaipur Development Authority, Jaipur through its Secretary,
Indira circle, Jaipur (Raj.)
----Respondent
For Petitioner(s) : Mr. J.P. Goyal, Sr. Adv. assisted by
Ms. Jyoti Swami
For Respondent(s) : Mr. Riyasat Ali, PP
Mr. Munesh Bhardwaj for Jaipur
Development Authority
HON'BLE MR. JUSTICE SUDESH BANSAL
Judgment
RESERVED ON April 15th 2024
PRONOUNCED ON May, 14th,2024
BY THE COURT
1. Three petitioners have jointly filed the present criminal misc.
petition under Section 482 Cr.PC, for quashing of criminal
proceedings against them in Criminal Complaint No.289/2010;
JDA Vs. Radhey Shyam Agrawal & Ors., pending before the Court
of Additional Chief Judicial Magistrate No.1, Jaipur Development
Authority, Jaipur, wherein after taking cognizance for offences
under Sections 31-32 of the Jaipur Development Authority Act,
1982 (hereinafter for short "the JDA Act"), vide order dated
02.12.2010, process has been issued against petitioners.
Petitioners, after service of summons, filed an application dated
[2024:RJ-JP:22405] (2 of 13) [CRLMP-307/2013]
22.09.2011, seeking to reject the criminal complaint on various
grounds, but that application has been dismissed by the Court of
Magistrate vide order dated 18.10.2012, hence the order dated
18.10.2012 has also been impugned by the petitioners in the
present petition.
2. Briefly stated, it appears from record that on the basis of a
Factual Inspection Report dated 12.11.2010, a criminal complaint
against petitioners, has been filed on 02.12.2010, in respect of an
illegal and unauthorized construction in rear setback portion of
about 8' 3"X 75' area in Plot No.B-40, Ganesh Nagar, Jaipur and
the allegation is that such construction was raised without
permission of Jaipur Development Authority (hereinafter for short
"the JDA"), and in addition, has not been removed despite giving
notice by the JDA, therefore, offences under Sections 31(1) & 32
of the JDA Act has been made out against petitioners. The
complaint has been filed by the JDA through Enforcement Officer,
impleading all three petitioners as accused therein before the
Court of Additional Chief Judicial Magistrate No.1, JDA, Jaipur,
whereupon the Magistrate took note of the fact that since
complaint has been filed by the Enforcement Officer, in the
capacity of Public Servant, there is no requirement to record
statements of complainant and witnesses under Section 200/202
Cr.PC, accordingly same is dispensed with and cognizance of
alleged offences against all three petitioners, has been taken vide
order dated 02.12.2010 and process against petitioners was
issued to call them through summons.
[2024:RJ-JP:22405] (3 of 13) [CRLMP-307/2013]
3. Petitioners, after service of summons, by way of filing
application dated 22.09.2011 before the Court of Magistrate,
raised three objections/issues, which are:
(I) Construction in question is more than 25 years'
old and limitation for taking cognizance of offences under
Sections 31-32 of the JDA Act, has expired, therefore,
criminal complaint is hopelessly barred by limitation.
(II) Notice dated 12.11.2010, issued for removal of
such construction, was never served in person on petitioners,
rather service has been effected through chispandagi, which
is violative to Section 86 of the JDA Act and Section 64 of
Cr.PC.
(III) Plot No.B-40, wherein the construction in question
in rear setback portion, has been stated to be raised illegally,
was purchased in joint name of Ravindra Kumar Agrawal and
Mahendra Kumar (petitioners No.2 & 3 herein), through sale
agreement dated 02.11.1988 from the original allottee of the
plot namely Smt. Vijay Laxmi Shekhawat and thereafter,
registered lease deed of the plot has been issued by the JDA
on 22.03.2002, in the sole name of Ravindra Kumar Agrawal
(petitioner No.2 herein), therefore, petitioner No.2 is alone
the real and registered owner of the plot, hence,
impleadment of petitioner No.1-Radhey Shyam Agrawal, who
is father of petitioner No.2, and petitioner No.3-Mahendra
Kumar, who is brother of petitioner No.2, as accused in the
criminal complaint, is ex-facie illegal, as much as contrary to
[2024:RJ-JP:22405] (4 of 13) [CRLMP-307/2013]
record of the JDA, therefore, the criminal complaint is wholly
arbitrary and has been filed in abuse of process of law.
4. The application filed by petitioners, has been rejected by the
Magistrate vide order dated 18.10.2012. In respect of Point Nos. I
& II, it has been held that both points are mixed question of facts
and law, therefore, can be decided after recording evidence of
parties and as far as Point No. III is concerned, it has been held
that since cognizance has been taken against all three accused
persons, the Court of Magistrate has no power and jurisdiction to
review its own order of cognizance.
5. Learned Senior Counsel appearing on behalf of petitioners in
respect of Point No. I, contended that Plot No.B-40 situated in the
scheme of Ganesh Nagar, New Sanganer Road, Jaipur, measuring
425 Sq. Yards, was initially allotted to one Smt. Vijay Laxmi
Shekhawat by the Shri Ganesh Housing Cooperative Society,
Jaipur, through allotment letter dated 25.10.1982, who had raised
construction of house on the plot and thereafter, petitioners No.2
& 3 purchased this residential plot along with constructed house
thereupon, from the original allottee Smt. Vijay Laxmi Shekhawat
through agreement to sale dated 02.11.1988 (Ann.1). He
contends that thereafter, house tax was deposited by petitioner
No.2 for a period 1984-1994, and lease deed has been issued by
the JDA in the name of petitioner No.2-Ravindra Kumar Agrawal
on 22.03.2002 (Ann.3). He contends that no new construction on
the plot, has been raised by the petitioners, but in fact, some
dispute was erupted between petitioners and their neighbour
namely Sh. R.K. Jain, a retired Judicial Officer, therefore, on his
[2024:RJ-JP:22405] (5 of 13) [CRLMP-307/2013]
instigation, the Enforcement Officer prepared the site inspection
report dated 12.11.2010 and filed the present criminal complaint.
He contends that petitioners' neighbour also filed a separate
complaint for similar offences, but he withdrew his complaint in
respect of construction in the rear setback portion, on account of
being old more than 10 years. He contends in the site inspection
report as also in the criminal complaint filed by and on behalf of
the JDA, there is no details about date, month or year, when the
alleged illegal construction in rear setback portion raised by the
petitioners. He contends that since house in the plot is old one and
there is no new construction, and the limitation for taking
cognizance u/s. 31 & 32 of the JDA Act, had already expired long
back, many years ago. He contends that the offences for which,
cognizance has been taken, are compoundable and fine can be
imposed, therefore, as per Section 468 Cr.PC, the limitation for
taking cognizance on such nature of offence, is only for six
months. Therefore, according to the learned Senior Counsel for
petitioners, the present criminal complaint and the cognizance of
offence taken thereupon, are hopelessly barred by limitation, as
such the order of cognizance be set aside and proceedings on the
criminal complaint be quashed at threshold, being in abuse of
process of law.
6. Having adverted to contentions of learned Senior Counsel
and from perusal of the record as available before this Court, it is
not clear from any of the documents either from agreement,
house tax receipt or from lease deed of JDA along with siteplan,
that the construction in the rear setback portion of the plot in
[2024:RJ-JP:22405] (6 of 13) [CRLMP-307/2013]
question, is existing since inception at the time of original allottee.
In the report of JDA dated 12.11.2010, on the basis of which the
present criminal complaint has been filed, only the construction in
Plot No.B-40 in the rear setback portion measuring 8' 3"X 75', has
been observed to be illegal and unauthorized and the illegal
portion has been highlighted with crossed lines in the sitemap,
which is part of the report. Whole house has not been alleged to
be illegally constructed. Therefore, it is difficult to hold at this
stage that the construction in question, which is confined only in
rear setback portion of Plot No.B-40, has been in existence since
beginning and prior to purchase of this plot by petitioners. In
addition, the Magistrate has rightly held in the order impugned
that the limitation of six months as provided u/s. 468 Cr.PC, shall
commence as per provision of Section 469 Cr.PC. If the criminal
complaint filed by petitioners' neighbour Sh. R.K. Jain was
withdrawn, accepting the construction in question of more than 10
years old, the same is not binding on the JDA and as per report of
the JDA, the alleged illegal and unauthorized construction in Plot
No.B-40, came to light and knowledge of the Enforcement Officer
on the date of inspection i.e. 12.11.2010. As per record, criminal
complaint was filed on 02.12.2010 and on the same day,
cognizance was taken & process was issued. Therefore, the
Magistrate Court in order impugned dated 18.10.2012, has not
committed any manifest illegality or jurisdictional error in holding
that the issue of limitation, shall be considered after recording
evidence of parties. Accordingly Point No.I has rightly been turned
[2024:RJ-JP:22405] (7 of 13) [CRLMP-307/2013]
down by the Magistrate and warrants no interference by this
Court.
7. As far as Point No. II is concerned, the issue as to whether
notice dated 12.11.2010, issued by the JDA, for removal of illegal
construction in question, was deliberately not served in-person on
any of the petitioners, rather service was effected first time by
pasting of notice, which is clear violation of provision of Section 86
of the JDA Act and Section 64 Cr.PC, is also a mixed question of
fact and law, hence learned Magistrate has held in the order
impugned that at the initial stage, the criminal compliant is not
liable to be rejected on this ground alone. In the opinion of this
Court, the Judicial Magistrate has rightly dealt with this point by
holding that the same shall be considered, after recording
evidence of parties. This Court does not find any patent defect or
error of jurisdiction or law, since the point is fundamentally based
on discussion of factual matrix. Hence, no interference is
warranted by this Court in respect of Point No. II as well.
8. As far as Point No.III is concerned, in the opinion of this
Court, this point has a merit acceptance. It is apparent from
record that the JDA has issued a registered lease deed dated
22.03.2002 of the Plot No.B-40 in the sole name of petitioner
No.2-Ravindra Kumar Agrawal, however, in respect of construction
in question in the rear setback portion of the Plot No.B-40, in the
criminal complaint, petitioners No.1 & 3, who are father and
brother of petitioner No.2, have also been impleaded as accused.
From the side of petitioners, their contention is that the petitioner
No.2 is the real and registered owner of the Plot No.B-40 and
[2024:RJ-JP:22405] (8 of 13) [CRLMP-307/2013]
petitioners No.1 & 3 have no concern with the alleged illegal and
unauthorized construction in the rear setback portion of this plot;
this contention finds support with the registered lease deed issued
by the JDA of the Plot No.B-40 in the name of petitioner No.2-
Ravindra Kumar Agrawal alone. There is no other evidence, on the
basis of which the JDA has implicated petitioners No.1 & 3 also in
the present criminal complaint. There are no allegations against
petitioners No.1 & 3 in-person, in the complaint. The JDA has not
disputed the issue of lease deed of plot in the sole name of
petitioner No.2. Therefore, without verifying the titled document
(registered lease deed of JDA) of the plot in question from the
record, the implication of petitioners No.1 & 3 by the JDA in the
present criminal complaint, seems to be wholly arbitrary and
without any basis, which can not be appreciated. It is apparent
from the record that the criminal complaint against petitioners
No.1 & 3, has been filed contrary to the record of the JDA itself.
The JDA could have filed criminal complaint only against petitioner
No.2, in whose favour lease deed of the Plot No.B-40 was issued
by the JDA.
9. In this context, it is noteworthy that the Magistrate has also
not disbelieved the contention of petitioners in this regard, but has
declined to reject the criminal complaint qua petitioners No.1 & 3,
only for the reason that the cognizance has been taken against
them and the Judicial Magistrate has no power to review his own
order of cognizance.
10. On this issue, the Hon'ble Supreme Court in case of Adalat
Prasad Vs. Rooplal Jindal [(2004) 7 SCC 338], has already
[2024:RJ-JP:22405] (9 of 13) [CRLMP-307/2013]
overruled the previous view expressed in case of K.M. Mathew
Vs. State of Kerala [(1992) 1 SCC 217], allowing to recall the
erroneous order of cognizance by the Magistrate himself, and held
as under:-
"It is true that if a Magistrate takes cognizance of an offence,
issues process without there being any allegation against the
accused or any material implicating the accused or in
contravention of provision of Sections 200 and 202, the
order of the Magistrate may be vitiated, but then the relief
an aggrieved accused can obtain at that stage is not by
invoking Section 203 of the Code because the Criminal
Procedure Code does not contemplate a review of an order.
Hence in the absence of any review power or inherent power
with the subordinate criminal courts, the remedy lies in
invoking Section 482 of the Code."
The exposition of law on this point as propounded by the
Apex Court in case of Adalat Prasad (Supra) is well settled and
has been followed and reiterated in subsequent various judgments
and in that context, reference of following judgments would be
suffice:
Bholu Ram Vs. State of Punjab [(2008) 9 SCC 140];
N.K. Sharma Vs. Abhiamnyu [(2005) 13 SCC 213];
Everest Advertising (P) Ltd. Vs. State, Govt. Of NCT of
Delhi[(2007) 5 SCC 50] &
M/s Iris Computers Ltd. Vs. M/s Askari Infotech Pvt.
Ltd. [LAWS(SC) 2013 2 95].
11. In view of above, this Court finds that from the record, it is
apparent and undisputed that the lease deed of Plot No.B-40 had
been issued by the JDA in favour of petitioner No.2-Ravindra
Kumar Agrawal alone, therefore, implication of petitioners No.1 &
[2024:RJ-JP:22405] (10 of 13) [CRLMP-307/2013]
3, who are father and brother of petitioner No.2, in the present
criminal complaint filed by the JDA for offences under Sections 31-
32 of the JDA Act, is absolutely unwarranted. The JDA implicated
petitioners No.1 & 3 in the present criminal complaint along with
petitioner No.2, without verifying its own record and without
examining the titled document (registered lease deed) of the Plot
No.B-40. Thus, it is apparent on record that the cognizance taken
by the Magistrate on the criminal complainant filed by the JDA for
offences under Sections 31-32 of the JDA Act qua petitioners No.1
& 3, is contrary to the record and such order of cognizance qua
petitioners No.1 & 3, suffers from inherent lack of jurisdiction and
sustaining such order of cognizance qua petitioners No.1 & 3
would lead failure of justice. The Judicial Magistrate refrained from
recalling the order of cognizance for want of jurisdiction, following
the dictum of law as expressed by the Apex Court delivered in
case of Adalat Prasad (Supra), therefore, this Court in exercise
of its jurisdiction under Section 482 Cr.PC, deems it just and
proper to quash the order of cognizance qua petitioners No.1 & 3,
because it has been found that filing of the criminal complaint and
continuation of proceedings thereupon qua petitioners No.1 & 3,
would be in sheer abuse of process of law. Therefore, to prevent
abuse of process of Court, it is desirable and necessary to exercise
jurisdiction u/s.482 Cr.PC, however, it is made clear that as far as
criminal complaint and cognizance taken for offences u/s.31-32 of
the JDA Act qua petitioner No.2 is concerned, the same warrants
no interference. The Point No.III is decided accordingly.
[2024:RJ-JP:22405] (11 of 13) [CRLMP-307/2013]
12. Apart from above, learned Senior Counsel for petitioners has
orally argued that the present criminal complaint by the JDA was
filed through the Enforcement Officer, who was not authorized and
competent to institute a criminal complaint. It appears that this
issue was not raised by petitioners before the Magistrate Court, in
their application dated 22.09.2011 and has not been considered
by the Magistrate, however, since the objection has been raised
before this Court, which goes to the root of matter, is being
considered. In counter to this objection, from the side of JDA, one
Office Order dated 06.11.2017 issued by the JDA, has been placed
on record.
As per Officer Order dated 06.11.2017, the designation of
authorized authority to initiate criminal prosecution for and on
behalf of JDA as prescribed in the order dated 02.09.1982 has
been clarified and the designation of that authority "Deputy
Director (Enforcement)" has been ordered to be read as "Deputy
Controller (Enforcement)". The present criminal complaint has
been filed by the then Enforcement Officer of Zone-5 of the JDA.
Therefore, in the light of clarification made by the JDA in its Office
Order dated 06.11.2017, the objection raised on behalf of
petitioners, has no force and accordingly, the same is hereby
rejected.
13. Final Outcome of the aforesaid discussions is that the
proceedings of Criminal Complaint No.289/2010, pending before
the Court of Additional Chief Judicial Magistrate No.1, JDA, Jaipur
so also the order of cognizance dated 02.12.2010 qua petitioner
No.1-Radhey Shyam Agrawal & petitioner No.3-Mahendra Kumar,
[2024:RJ-JP:22405] (12 of 13) [CRLMP-307/2013]
are hereby quashed and names of petitioners No.1 & 3 be deleted
in the criminal complaint. However, order of cognizance dated
02.12.2010 for offences u/s. 31-32 of the JDA Act, against
petitioner No.2-Ravindra Kumar Agrawal, shall survive and
proceedings in the present criminal complaint qua petitioner No.2,
shall remain continue in accordance with law. It would be open for
petitioner No.2 and JDA, to adduce their evidence on Points No. I
& II, in respect of filing the present criminal complaint after expiry
of limitation and without effecting service of notice dated
12.11.2010, in-person on petitioner No.2, which shall be
considered by the Court of concerned Magistrate in accordance
with law.
14. It is made clear that any of findings or observations made by
this Court in the present judgment, would not affect merits of the
present criminal complaint and the same would be decided by the
Court of concerned Magistrate in accordance with law.
15. With aforesaid observations and terms, the present criminal
miscellaneous petition is party allowed. No costs.
16. All pending application(s), if any, stand(s) disposed of.
17. Looking to the short controversy in the present complaint
only in respect of construction in rear setback area of 8' 3"X 75' in
Plot No.B-40, Ganesh Nagar, Jaipur and pendency of complaint
since 02.12.2010, wherein after taking cognizance for offences
u/s. 31-32 of the JDA Act, proceedings were stayed by this Court,
during course of the present petition, therefore, it is hereby
directed that the concerned Magistrate shall make endeavour to
decide the present criminal complaint expeditiously and if
[2024:RJ-JP:22405] (13 of 13) [CRLMP-307/2013]
possible, within a period of twelve months from the next date
already fixed, after receiving certified copy of this judgment.
18. A copy of this judgment be forwarded to the Court of
concerned Magistrate, forthwith.
(SUDESH BANSAL), J
Sachin
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