Madhya Pradesh High Court
Ramraj Deswali vs The State Of Madhya Pradesh on 12 December, 2023
Author: Vivek Rusia
Bench: Vivek Rusia
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE VIVEK RUSIA
ON THE 12 th OF DECEMBER, 2023
MISC. CRIMINAL CASE No. 31683 of 2023
BETWEEN:-
1. RAMRAJ DESWALI S/O KISHANLAL, AGED: 51
YE A R S , OCCUPATION: BUSINESS, R/O: HOLY
ANGEL SCHOOL, KURAWAR, DISTRICT RAJGARH
(MADHYA PRADESH)
2. JUSTINE K JOSEPH S/O K.M. JOSEPH, AGED: 49
YE A R S , OCCUPATION: BUSINESS, R/O: HOLY
ANGEL SCHOOL, KURAWAR, DISTRICT
RAJGARAH (MADHYA PRADESH)
.....PETITIONERS
(BY SHRI AMAN MOURYA - ADVOCATE.)
AND
THE STATE OF MADHYA PRADESH, THROUGH STATION
HOUSE OFFICER, POLICE STATION KURAWAR,
DISTRICT RAJGARH (MADHYA PRADESH)
.....RESPONDENT
(BY SHRI SUDHANSHU VYAS - ADVOCATE.)
This application coming on for admission this day, the court passed the
following:
ORDER
The petitioners have filed the present petition under Section 482 of Code of Criminal Procedure, 1973 (herein after referred to as the Code) seeking quashment of an First Information Report (FIR) registered vide Crime No.81 of 2021 dated 08.03.2021 (Annexure P/1) registered at Police Station Kurawar (Kotara), District Rajgarh (M.P.) for commission of offence under Section 339- C of Madhya Pradesh Municipalities Act, 1961 (herein after referred to as the Signature Not Verified Signed by: RAMESH CHANDRA PITHAWE Signing time: 12/14/2023 4:18:45 PM 2 Act).
2. In short, facts of the case are, as under: -
The aforesaid FIR was registered against the petitioners on a letter dated 05.03.2021 sent by the Sub Divisional Officer (SDO), Revenue Department, Narsinghgarh, Rajgarh (M.P.) to the Police Station informing that these petitioners are selling plots by plotting a land bearing Survey No.134/1/2 area 0.116 hectares at Village Lasudiya Ramnath, Kurawar (Kotara), District Rajgarh (M.P.) illegally and they have no permission from Town & Country Planning Department and also not having Colonizer's License. They have got diverted the aforesaid land for residential purposes and deposited the lease rent, but there is violation of provision of Section 339 of the Act, as without obtaining Colonizer's License, they are developing a illegal colony. Hence, FIR be registered.
On the basis of the aforesaid information, Police Station, Kurawar, District Rajgarh (M.P.) has registered an FIR.
The petitioners applied under Section 438 of the Code and got the anticipatory bail.
3. The present petition is filed seeking quashment of the FIR on the ground that the SDO is not competent to make a complaint to the Police for registration of the FIR with respect to commission of offence under 339 of the Act.
4. Learned counsel appearing for the petitioner has produced a gazette notification published on 01.09.2021 and relied on Sub Section (3) of Section 399-C of the Act which says that "the offences under sub-section (1) and (2) shall be cognizable but no enquiry or inquiry or investigation shall be carried out except on a written complaint by the Competent Authority or an officer Signature Not Verified Signed by: RAMESH CHANDRA PITHAWE Signing time: 12/14/2023 4:18:45 PM 3 authorized by him in this regard".
5. Learned counsel submits that the "Competent Authority" is defined under Section 313 of the Act. According to which, Chief Municipal Officer or any other officer authorized by the Council shall be competent to prosecute on behalf of the Council.
6. Learned counsel submits that similar issue came up for consideration before this Court in the case of Miscellaneous Criminal Case No.5199 of 2013 (Alok Upadhyay S/o Nand Kishore Upadhyay & another v. State of Madhya Pradesh & others) and vide order dated 25.07.2013, this Court has quashed the FIR on the ground of competency of the SDO (Revenue).
7. In the present case, the FIR was registered on 08.03.2021 and at that time, Section 339-C of the Act was enforce, which is reproduced, as under: -
"339-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.
(3) Whoever commits or abets the commission of an offence of illegal diversion or illegal colonization shall be punished with imprisonment of not less than three years and not more than seven years or with 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 minimum fine of ten thousand rupees or with both, and such offence shall be a cognizable offence.(6) It shall be incumbent upon every colonizer to display correct information about the area (including the carpet area) of the housing units proposed for construction and facilities to be provided in a colony in all its advertisements published in the form of pamphlets, brochures, hoardings and in all communications to the customers and shall explicitly mention the number and date of his Registration Certificate over it, and any violation of these provisions shall take such colonizer liable for punishment under sub-section (3) and sub-
section (5)."
Signature Not Verified8. The aforesaid Section 339-C of the Act has been replaced vide gazette Signed by: RAMESH CHANDRA PITHAWE Signing time: 12/14/2023 4:18:45 PM 4 notification dated 01.09.2021 in which Sub Section (3) authorizes Competent Authority or Officer authorized by the Council to file a written complaint for the prosecution, but the said amendment came into force with effect from 01.09.2021, hence, the same will not be applicable in the present case, as the FIR had already been registered on 08.03.2021 under the repealed provision of law. Sub-Section (5) of Section 339 of the Act says that whosoever constructs a building in an area or illegal diversion or illegal colonization, commits an offence of illegal construction and he shall be punished with imprisonment not less than three years and not more than seven years with a fine and such offence shall be cognizable offence.
Therefore, on this ground of competency, FIR cannot be quashed.
9. Accordingly, Miscellaneous Criminal Case No.31683 of 2023 being devoid of merit is hereby dismissed.
(VIVEK RUSIA) JUDGE rcp Signature Not Verified Signed by: RAMESH CHANDRA PITHAWE Signing time: 12/14/2023 4:18:45 PM