Jharkhand High Court
M/S Ashlesha Corporation Limited & Anr vs C.B.I., A.C.B., Ranchi Thr Sup on 27 November, 2015
Equivalent citations: 2016 (2) AJR 548, (2016) 1 JLJR 380
Author: R.R.Prasad
Bench: R.R.Prasad
In the High Court of Jharkhand at Ranchi
W.P.(Cr.) No.319 of 2011
M/s. Ashlesha Corporation Limited having
Registered office at 402, Commerce House, Sarda
Babu Street, P.O. G.P.O, P.S.Kotwali, Ranchi.
Binay Prakash son of late R.C.Prasad, Director
M/s. Ashlesha Corporation Limited, Ranchi, resident of
Prakash Kunj, Booty Road, P.O & P.S.
Bariatu,Ranchi...............................................Petitioners
VERSUS
C.B.I, A.C.B, Ranchi through S.P...............Opposite Party
CORAM: HON'BLE MR. JUSTICE R.R.PRASAD
For the Petitioners : M/s. K.N.Choubey, Sr. Advocate,
Rajendra Krishna & Amit Sinha, Advocate
For the C. B. I : Mr. K.P.Deo, Advocate
C.A.V. on 9.10.2015 Delivered on 27. 11.2015.
This application has been filed for quashing of the entire criminal
proceeding including the order dated 25.10.2011 passed by the Special Judge,
C.B.I, Ranchi in R.C. case no.03(A) of 2011-R whereby and whereunder the
court took cognizance of the offences punishable under Section 120B read
with Section 420 of the Indian Penal Code and also under Section 13(2) read
with Section 13(1)(d) of the Prevention of Corruption Act, 1988 as well as
under Section 52/55 of the Jharkhand Regional Development Authority Act,
2001.
Before adverting to the submissions advanced on behalf of the parties,
the facts of the case which have given rise to this application is that one Babu
Satish Chandra Ghosh acquired approximately 2 bighas of land in Mouza
Chadri situated on the north of Line Tank by virtue of a Hukumnama dated
17.4.1912executed by Babu Kali Shankar Sahay and others. Thereupon Babu Satish Chandra Ghosh became a raiyat of the land and came in possession thereof on payment of rent to the ex-landlord. Upon the death of Babu Satish Chandra Ghosh, his only son Khitish Chandra Ghosh inherited the said property. Meanwhile, the land was recorded in the name of Ranchi Municipality and taking advantage of it the Municipality started disturbing the peaceful possession of Khatish Chandra Ghosh over the said land which led to a proceeding under Section 145 of the Code of Criminal Procedure which was decided in favour of the Municipality. In that event, Khitish Chandra Ghosh instituted a Title Suit bearing no.57 of 1957 for declaration of right, title and interest and recovery of possession of the land bearing Municipal Survey Plot No.1736. The said suit was contested by Ranchi Municipality. However, it was decreed in favour of the plaintiff.
Being aggrieved with the decree, Ranchi Municipality preferred Title Appeal No.30 of 1960 which was dismissed with costs. Against the said judgment, Second Appeal was preferred before the Patna High Court which was remanded before the lower appellate court for fresh decision. Upon remand the appellate court reversed the judgment and dismissed the suit.
Being aggrieved with that order, the plaintiff preferred Second Appeal bearing no.733 of 1967 before the Patna High Court which was dismissed vide judgment dated 30.9.1970. Against that judgment, the plaintiff preferred Civil Appeal No.1034 of 1971 before the Hon'ble Supreme Court. The Hon'ble Supreme Court, vide its judgment dated 6.2.1981 set aside the judgment passed by the Patna High Court and decreed the suit and thereby the judgment and decree passed by the Special Subordinate Judge, Ranchi in Title Suit No.57 of 1957 as well as by the appellate court affirming the decree was restored. Pursuant to that, delivery of possession over the land measuring 0.425 acres appertaining to plot no.1736 was effected in favour of Khitish Chandra Ghosh. In spite of that, Ranchi Municipal Corporation invited tenders for grant of settlement of the land bearing plot no.1736 which was challenged before the High Court in C.W.J.C.No.1279 of 2001. This Court vide order dated 27.11.2001 did find the action of Ranchi Municipal Corporation to be illegal and thereby restrained Ranchi Municipal Corporation from interfering with the right, title, interest and possession of the petitioners. Upon the death of Khitish Chandra Ghosh, heirs of Khitish Chandra Ghosh inherited the property, who sold the land measuring 0.425 acres (42.5 decimals) appertaining to Municipal Survey Plot No.1736 vide sale deed dated 17.5.2002 to M/s. Binay Prakash (HUF) who came in possession over the land. However, Ranchi Municipal Corporation again started disturbing peaceful possession of him over plot no.1736 and 1735 which led to filing of writ application, vide W.P.(C) No.4163 of 2003 in which interim order was passed on 4.9.2003 whereby Ranchi Municipal Corporation was restrained from evicting the petitioners from the land bearing plot no. 1735. However this Court without going into the merit of the claim of the parties dismissed the writ application giving liberty to the petitioners to get the dispute settled by the civil court of competent jurisdiction. In the year 2006, Ranchi Municipal Corporation again started disturbing peaceful possession of the land for which another writ application being W.P.(C) No.2259 of 2006 was filed whereby an interim order was passed on 27.7.2006 to the effect that no coercive step shall be taken against the writ petitioners. The said writ application was disposed of on 1.2.2011.
Meanwhile the vendor who had executed the aforesaid sale deed in favour of M/s Binay Prakash (HUF), executed deed of rectification dated 6.8.2007 stipulating therein that in the sale deed plot no.1735 could not be incorporated and that boundary of the vended plot (plot no.1736) had wrongly been given and thereby in the body of the sale deed executed on 17.5.2002 municipal survey plot no.1735 be also incorporated. Thereupon vendee Binay Prakash (HUF) sold the land appertaining to municipal survey plot no.1736 to M/s. Ashshela Corporation Limited (petitioner no.1 ). Thereupon M/s. Ashshela Corporation submitted a building plan for construction of Hotel over plot no.1736.
Before that M/s. Binay Prakash (HUF) had submitted a building plan for construction of a commercial building over both the plots bearing Municipal Survey Plot Nos. 1735 and 1736. The map was sanctioned and construction also seems to have been taken place. Meanwhile, M/s. Binay Prakash (HUF) vide its sale deed dated 11.12.2007 sold the land appertaining to Plot No.1736 measuring 0.425 acres (26 kathas 9 chhatak) to M/s. Ashlesha Corporation Limited (petitioner no.1) to which petitioner no.2 is the Director. Thereupon M/s. Ashlesha Corporation submitted a revised building plan for construction of a Hotel over Municipal Survey Plot No.1736 which gave rise to B.C.case no.1103 of 2008. Upon building plan being sanctioned, the petitioners proceeded with left work. Much thereafter a Public Interest Litigation, vide W.P.(PIL) No.1531 of 2011 was filed before this Court for direction to the authorities including Vice-Chairman, Ranchi Regional Development Authority, Ranchi, for removing the illegal and unauthorized structure being used as go-down and shop constructed in the parking area of "Chandralok Apartment". This Court after taking notice of the fact that the authorities have turned their blind eyes towards the deviation from their sanctioned maps which deviations are not only resulting into civil wrongs but are offences under criminal law as well and that any place which is required to be dedicated to common use if denuded of its character will mean encroachment of the rights of other qualifying to be an offence and that said offence could not be committed without the tacit consent of the local officials or the persons in high places. After making such observation, the High Court vide its order dated 22.3.2011 directed the C.B.I to investigate into such cases. Consequent upon such order, C.B.I upon submission of a formal complaint made by the then Registrar General, Jharkhand High Court, registered the case and took up the investigation with respect to the matter relating to deviation made in the construction of the building from the sanctioned map.
So far this case is concerned, the C.B.I after completing the investigation submitted charge sheet on the accusation that the applicant had submitted a plan vide B.C. no.706 of 2004 for getting it sanctioned for construction of commercial building over plot no.1735 and 1736 having specification of B+G+6. Upon map being sanctioned, this applicant took up the construction work and proceeded with the construction considerably. Subsequently, a revised map was submitted by the applicant for construction of a building to be used as hotel and some shops having B+G+6 structure. Upon submission of the map at both the occasions it had been pointed out that the applicant does not hold clear title over plot no.1735 and hence, the map be sanctioned over the land bearing plot no.1736 but the R.R.D.A authority by overlooking the same sanctioned the plan on both the occasions ignoring the issues raised regarding ownership of plot no.1735 which according to the Ranchi Municipal Corporation belonged to them over which a road and drainage were passing through.
In this regard it was further alleged that since from beginning only municipal survey plot no.1736 measuring 42.5 decimals was the matter in dispute and as such, possession of municipal survey plot no.1735 was never the subject matter of dispute which was being used as common road and that vendors of Binay Prakash (HUF) did confirm that they had sold the land appertaining to plot no.1736 only to M/s. Binay Prakash (HUF) but he got the land being plot no.1735 included in the deed of rectification though they were not having any ownership over the land bearing plot no.1735 and thereby neither M/s. Binay Prakash nor M/s. Ashlesha Corporation to whom the land subsequently was transferred was having any right, title or interest over the land bearing plot no.1735, still on the previous occasion the map was submitted for construction of a commercial building over the land bearing plot nos.1735 and 1736. However, subsequently the map was submitted for construction of a hotel over the land bearing plot no.1736 which was sanctioned for construction of the building over plot no.1736 but the officials of the R.R.D.A allowed the petitioners to use the land of plot no.1735 as set back and all these acts were done in connivance with each other and the connivance of the authorities further gets buttressed from the fact that though the plan was sanctioned for construction over plot no.1736 but in forwarding letter municipal survey plot no.1735 was also included.
On such allegation, it was alleged that the petitioners did not only commit offences in Indian Penal Code but also committed offence under the Prevention of Corruption Act in connivance with the authorities of the R.R.D.A and also the offence under the R.R.D.A. Act.
On submission of the charge sheet when the cognizance of the offence was taken vide order dated 25.10.2011, the same has been challenged before this Court.
Mr.Choubey, learned Sr. counsel appearing for the petitioners submits that in the year 1912, the Ex-landlord settled two bighas of land to Babu Satish Chandra Ghosh by virtue of a Hukumnama accompanied by grant of rent receipt and followed by possession, who remained in possession of the said land throughout his life.
The Ranchi Municipality in the year 1929-30 tried to interfere with the peaceful possession of the settlee on the premise that said property being part of Lines Tank, is the property of the Municipality and that in the Municipal Survey Record of Right of the year 1928-29, land has been recorded as Ranchi Municipality.
That entry was challenged by Khitish Chandra Ghosh son of late Satish Chandra Ghosh in Title Suit No.57 of 1957 wherein relief was sought for to declare the right, title and interest over the land bearing Plot No.1736 and also for recovery of the possession. The plaintiff claimed title on the basis of Hukumnama and also by way of adverse possession. The trial court decreed the suit both on the question of title and adverse possession. The appeal filed by the defendant against the decree was dismissed and thereby, judgment and decree of the trial court was affirmed.
Against that order, second appeal was preferred by the defendant before the High Court. The High Court remanded the matter to the appellate court to decide the matter afresh, so far claim of the plaintiff is based on title as according to High Court, the plaintiff failed to make out a case that the plaintiff acquired title by prescription of adverse possession. The appellate court thereupon did hold that the plaintiff failed to establish its title over the suit land and hence, set aside the judgment and decree passed by the trial court. Being aggrieved with that order, the plaintiff preferred appeal before the High Court, which affirmed the judgment passed by the appellate court on remand. However, the court while dealing with the case did observe that the land settled to the settlee through Hukumnama would include Plot no.1735 also as the land would be coming within the ambit of the boundary shown in the Hukumnama.
Ultimately, the matter came up before the Hon'ble Supreme Court whereby the Hon'ble Supreme Court was pleased to observe that the High Court had no jurisdiction after reversing the concurrent finding of the courts below on the question of adverse possession to remand the case to the Additional Judicial Commissioner on question of title which also got concluded by the concurrent finding of the fact arrived at by the two courts. Thereby, the judgment of the High Court was set aside and consequently, suit was decreed.
Much thereafter, the heirs of Khitish Chandra Ghosh sold the land bearing Plot Nos. 1735 and 1736 to one M/s.Binay Prakash (HUF) through sale deed in the year 2002. It was submitted that under the aforesaid sale deed, though both the plots were sold but the boundary in the northern side was wrongly shown as Plot No.1735, which mistake when was detected, a rectification deed was executed by the vendors wherein boundary was corrected by showing plot no.1734 in the northern side. In the year 2007, M/s.Binay Prakash sold the land of plot no.1736 to M/s. Ashlesha Corporation Limited.
Before that, in the year 2004, a plan had been submitted by M/s.Binay Prakash (HUF) for construction of a commercial building which was sanctioned. In the year 2008, a fresh plan was submitted, not by M/s.Binay Prakash (HUF) but by M/s. Ashshela Corporation Limited to whom M/s.Binay Prakash had sold the land in the year 2007. The map was sanctioned over which a hotel was constructed. When the C.B.I took up the matter pursuant to the order passed by this Court, it did find that the map has wrongly been sanctioned, whereby the petitioners were allowed to use the land of Plot No.1735 recorded as municipal lane as set back and thereby it has been alleged that the Officer of RRDA in connivance with the petitioners, has sanctioned the map, but the finding arrived at is contrary to report submitted by a Committee constituted by the CBI to find out as to whether there has been any deviation in relation to the sanctioned map whereby on physical verification, the members of the Committee did not find any deviation in any side of the building so far it relates to set back, which is evident from the memorandum submitted by the Committee as annexed as Annexure S/1 to the affidavit field on 18.5.2015.
In spite of that, charge sheet has been submitted on the premise that on the northern side of the plot, there should have been front set back, as Municipal Road was there on that side, but when the courts below had found the right, title and interest of the vendors of Mr. Binay Prakash over the land and decreed the suit, which was even affirmed by the Hon'ble Supreme Court, the said plot bearing no.1735 cannot be taken to be road as entry made in the Municipal Survey as road over Plot No.1735 was found to be incorrect and thereby, question of leaving front set back on the northern side does not arise. Otherwise also, set back left is in consonance with the provision of Rule 5 of the Bye-laws as there have been front set back towards eastern and western side as on both he sides road passes through and thereby the land will fall within the category of 'Double Frontage". Under the circumstances, the petitioners cannot be said to have committed any illegality or did connive with the officers of the RRDA to do illegal act for giving undue benefits to these petitioners.
Mr.K.P.Deo, learned counsel appearing for the C.B.I submits that admittedly the land appertaining to municipal survey plot no.1735 was never the subject matter either of the suit, appeal, second appeal or proceeding before the Hon'ble Supreme Court and thereby the petitioners cannot take advantage of the land appertaining to plot no.1735 as the petitioners do not have any right, title and interest over the land and could not acquire right, title even by virtue of rectification deed wherein it has been stipulated that the land bearing plot no.1735 be deemed to have been sold to Binay Prakash (HUF). On account of the aforesaid reason at both the occasions when the plans were submitted, objection was taken on the basis of report of the Advocate that map cannot be sanctioned over municipal survey plot no.1735 but the authorities of RRDA in connivance with the petitioners though sanctioned the map for construction of the building over plot no.1736 but allowed the petitioners to use the land of plot no.1735 as set back and thereby it is apparent that the authorities of RRDA in connivance with the petitioners did commit offences under which cognizance has been taken.
The aforesaid submission made on behalf of the C.B.I was replied with by Mr.Choubey, learned Sr. counsel appearing for the petitioners that admittedly the map was submitted for construction of a building over the land bearing plot no.1736 which belonged to the petitioners but the petitioners are being prosecuted only for the reason that the authorities of RRDA in connivance with the petitioners did allow the petitioners to use the land of plot no.1735 as front set back but the fact is that open land left for side set back falls within the area of plot no.1736. However, according to the C.B.I, since adjacent plot no.1735 which is being shown in the municipal survey map as road, there should have been front set back on that side also in terms of Note 5 of Bye-laws but the interpretation which is being given of Note-5 of the Bye-laws at the instance of C.B.I does not seem to be correct as according to the C.B.I front set back should have been left at all sides through which road passes but no such stipulation is there under Note-5 rather in terms of Note-5 only at two sides through which road passes front set back is required to be left.
Further it was submitted that as per bye-laws 4 feet land has been left on the northern side as side set back which land is the part and parcel of Plot no.1736. Only when on that side if front set back is to be left, it would fall within the land bearing plot no.1735 as 6/7 feet would be required to be left on that side as front set back. Only on the assumption that 6/7 feet is required to be left as front set back towards the land bearing plot no.1735, the C.B.I has come with the case that officials of RRDA in connivance with the petitioners have given benefit even of the land bearing plot no.1735 which assumption does not have any foundation even in terms of Note -5 of Bye- laws and in such situation, if the petitioners are allowed to be prosecuted, a grave injustice would be caused to them and thereby the order taking cognizance is fit to be quashed.
No doubt it is true that the subject matter of the dispute which arose in between Khitish Chandra Ghosh and the Municipality was the land appertaining to municipal survey plot no.1736 measuring 0.425 acres but according to recital made in the sale deed executed in favour of M/s Binay Prakash (HUF), it does appear that Babu Satish Chandra Ghosh, the father of said Khitish Chandra Ghosh acquired 2 bighas of land in Mouza Chadri situated on the north of Line Tank by virtue of a Hukumnama dated 17.4.1912 and came in possession thereof on payment of rent to the Ex-landlord. The dispute arose in between Ranchi Municipality and Khitish Chandra Ghosh as the land including the land bearing plot nos.1736 and 1735 was recorded in the name of Ranchi Municipality. Since peaceful possession of Khitish Chandra Ghosh with respect to the land bearing plot no.1736 was disturbed, a suit was brought for declaration of title and recovery of possession over the land bearing plot no.1736. Title suit brought by the plaintiff Khitish Chandra Ghosh was decreed which got affirmed by the appellate court. However, when the matter came in second appeal, the matter was remanded to the appellate court and then appellate court on remand, reversed the decree passed by the trial court as well as the appellate court. Judgment of appellate court even was affirmed by the High Court. However, the Supreme Court did find that the High Court did commit illegality in reversing concurrent finding of fact recorded by the trial court and the appellate court at the first instance with respect to adverse possession. The appellate court had given following finding.
" Thus, from the facts stated above, it is quite clear that the plaintiff and his father were coming in possession of the land in suit since 1912 till the year 1954-55. The municipality made several attempts to prevent the plaintiff and his father from storing building materials on the suit land from 1924 till 1954 -55.Thus, the plaintiff's father is proved to have been in possession of the suit land both before and after the municipal survey of 1928-
29. The oral evidence of P.Ws. 1, 5, 6, 8 and 9 also proves the plaintiff and his father were in actual possession of the suit land at all times after the settlement by the landlord in 1912. Hence, presumption of correctness of municipal survey entry has been successfully rebutted in this case by the plaintiff.
In that event, the Supreme Court set aside the order passed by the High Court and decreed the suit in the year 1981.
Much thereafter the heirs of Khitish Chandra Ghosh did execute sale deed in favour of M/s. Binay Prakash (HUF) wherein stipulation was made to the effect that the vendors hereby sell, transfer, convey absolutely and for ever all that piece and parcel of lands measuring an area of 0.425 acres (42.5 decimals) of land comprising municipal survey plot no.1736 together with road and drainage standing on plot no.1735 for use which is an integral part thereof together with all rights of way easements, appurtenances enjoyed therewith or known or reputed to be so, situated at village-Chadri Sarda Babu Street, P.S.Kotwali, District-Ranchi. However, in the schedule of the property northern boundary was shown as road, drainage over municipal survey plot no.1735 which seems to have created doubt as to whether the land bearing plot no.1735 had been transferred or not. In such event, deed of rectification was executed whereby it was stipulated that the land of plot no.1735 be incorporated in the sale deed executed with respect to the land bearing plot no.1736. From the fact which has been stated in the petition it does emerge that in spite of suit being decreed by the Hon'ble Supreme Court, Ranchi Municipality started disturbing the peaceful possession of the land bearing plot no.1736 and therefore, one writ application was filed by the land owner whereby respondent Municipal Corporation was restrained from interfering with the right, title and possession over the land bearing plot no.1736. Subsequent to that, when possession over the land bearing plot nos.1735 and 1736 was disturbed, M/s. Binay Prakash (petitioner no.1) as karta of the family filed a writ application bearing W.P.(C ) No.4163 of 2003 wherein interim order was passed on 4.9.2003 whereby Ranchi Municipal Corporation was restrained from evicting the petitioners from the land bearing plot nos. 1735 and 1736. However the writ application was dismissed on 10.3.2004 without there being any adjudication on the merit of the claim of the parties giving liberty to the petitioners to get the dispute settled by the civil court of competent jurisdiction. Subsequent to that, peaceful possession of the land of the petitioners seems to have been disturbed by the Ranchi Municipal Corporation and therefore, another writ application was filed application vide W.P.(C) No.2259 of 2006 whereby an interim order was passed on 27.7.2006 to the effect that no coercive step shall be taken against the writ petitioners. The said writ application was disposed of on 1.2.2011. Meanwhile Title Suit bearing no.112 of 2006 was filed in which order of injunction was passed on 29.1.2011 restraining Ranchi Municipal Corporation from disturbing the peaceful possession of the petitioners till disposal of the suit. All these facts do suggest that the land of plot no.1735 recorded in the Municipal record as road and drainage had lost its character much much before and its possession seems to be with original vendor and then subsequently purchaser. In that event, M/s. Binay Prakash (HUF) the vendor of the petitioners had earlier submitted map for its sanction for construction of a commercial building over plot no.1735 and 1736 which was sanctioned. However, subsequent to that, M/s. Ashshala Corporation (petitioner no.1) submitted a map for its sanction in the year 2008 for construction of a hotel over the land bearing plot no.1736 only which was sanctioned. Subsequently, when the C.B.I took up the matter pursuant to the order passed by this Court, the prosecution was launched against the petitioners on the accusation that map though was sanctioned for construction of a hotel over the land bearing plot no.1736 but the authority of the RRDA allowed the petitioners to use the land bearing plot no.1735 as set back.
It would be pertinent to note here that according to the petitioners, the petitioners have left the land at side set back of about 4 feet which does fall within the area of plot no.1736. However, according to the C.B.I, the petitioners were required to leave the land as front set back which would be coming, as per the case of the petitioners, 7 feet and then part of it will be falling in plot no.1735. Thus, only when in terms of Note 5 of the Bye-laws the petitioner would be required to leave front set back towards the land bearing plot no.1735 it could be said that the authorities of RRDA in connivance with the petitioners did give the benefit to the petitioner of plot no.1735. It be further recorded that since plot no.1735 has been recorded as road in Municipal record it is being considered by the C.B.I in terms of Note 5 that front set back is to be left out on northern side but from the case which has been made out by the petitioners by getting interim orders in their favour at different point of time and also from injunction order it becomes quite apparent that the land appertaining to Plot no.1735 was never being used as road since long. If that is so the land of Plot no.1735 would never be considered as 'Street' in terms of clause 2.74 of the Bye-laws which reads as under:
"Any highway street, lane, pathway, alley, stair way, passage way, carriage way, footway, square, place or bridge whether a thorough fare or Dead End, over which the public have a right of passage or assess or have passed and have access uninterruptedly for a period of one year whether existing or proposed in any scheme and includes all bunds culverts sidewall, traffic island, road side trees and hedges retaining wall, fenses barrier and railing within the street lines".
Thus, definition of street clearly suggest that if any land over which the public have right of passage or access or have passed and have access uninterruptedly for a period of one year, would be considered to be a street but it has never been the case of C.B.I that since one year before the searching of map, the land of Plot no.1735 was being used as street rather the C.B.I has been taking the said land as road on the basis of the municipal survey of record prepared in the year 1928 whereas according to the case of the petitioner as stated above, it becomes quite apparent that the said land of Plot No.1735 was never being used as road/street since long. In that event, question of leaving front set back towards northern side in terms of note 5 of the Bye-laws never does arise.
Now the next question does arise as to whether front set back is required to be left in terms of note 5 of the Bye-laws on northern side.
For determining this issue, one needs to take notice of Note 5 of the Table 2A- 11 Ranchi Planning Standards & Building Bye-laws 2002 which reads as follows:
"In case of corner/double frontage/tandem sites all the sides facing the road shall be treated as front sides and regulations applies accordingly to maintain the building's better visibility. Other non road facing sides shall be treated as side setbacks."
From its perusal it does appear that stipulation has been made that on all the sides through which road passes, front set backs are required to be left, in case of corner/double frontage/ tandem sites. Since the word 'all' has been used it is being interpreted by the CBI that front set back should have been left over on northern side on which side land of Plot no.1735 situate which has been recorded as road in municipal record.
Admittedly, the building in question does have double frontage as on the eastern as well as western side road passes. At both the sides front set back has been left out. Now the question does arise as to whether on the northern side towards which plot no.1735 situates one is required to leave the front set back ?
It be stated that the aforesaid note concerns with the pots having characteristic of sites of corner, double frontage and tandem. It does not contemplate of the site having more than double frontage. In that event, the word 'all' appearing in the said provision could mean both in the context of site having double frontage. If the intention would have been there to leave front set back on all the sides through which road passes, the site having more than double frontage would have incorporated in the said note but conspicuously it is not there. In that event, if the building does have double frontage, front set backs are required to be left at both the sides which are presently there in the building in question.
In these events, if the petitioners are allowed to be prosecuted it would be a miscarriage of justice. Accordingly, the order dated 25.10.2011 under which cognizance of the offence has been taken is hereby quashed.
In the result, this application stands allowed.
(R.R.Prasad, J.) ND/