Rajasthan High Court - Jaipur
Balbir Singh Tomar S/O Late Shri Hotam ... vs Jaipur Development Authority on 27 February, 2025
Author: Ganesh Ram Meena
Bench: Ganesh Ram Meena
[2025:RJ-JP:5945]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Criminal Miscellaneous (Petition) No. 3796/2022
Balbir Singh Tomar S/o Late Shri Hotam Singh Tomar, R/o 14,
Govind Marg, Aadarsh Nagar, Jaipur Presently Residing At B-28-
29, Govind Marg, Jaipur 302004
----Petitioner
Versus
Jaipur Development Authority, Through Enforcement Officer
Zone- 13, Jda, Indra Circle, Jawahar Lal Marg, Jaipur.
----Respondent
For Petitioner(s) : Mr. S.S. Hora
For Respondent(s) : Mr. Fahad Hasan, Mr. Sameer Khan
and Mr. Abdul Basit Naqvi
HON'BLE MR. JUSTICE GANESH RAM MEENA
Order
Reserved on ::: February 10, 2025
Pronounced on ::: February 27, 2025
1. By filing instant criminal misc. petitioner under
section 482 CrPC, the accused petitioner has prayed to quash
the criminal proceedings qua him pending in the Court of
learned Addl. Chief Metropolitan Magistrate No.2 (Special
Court), Jaipur Development Authority, Jaipur Metropolitan-II,
Jaipur, bearing No.26/2016 (for short 'the learned trial
court'), for the offence punishable under section 72 of the
Jaipur Development Authority, 1982 (for short 'the Act of
1982') qua him.
2. Brief facts of the case are that the Enforcement
Officer, Zone 13, Jaipur Development Authority, Jaipur filed a
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complaint (Ex.P1) in the Court of learned ACJM No.2 (Special
Court), JDA for offence punishable under section 72 of the
Jaipur Development Authority Act, 1982 against the petitioner
in the capacity of Chairman, Indian Medical Trust and one Mr.
K.P Singh, the then Registrar, NIMS University, wherein it was
alleged that during inspection conducted by Tehsildar, Zone
13, Ameen Zone 13 and Enforcement Officer Zone-13 on
20.11.2015, it was found that the petitioner and the other
accused has encroached upon the land belonging to the JDA
bearing Khasra No. 528 & 531 situated in Village Jugalpura,
Tehsil Amer, Delhi Road, Jaipur. Thereafter, the cognizance
was taken against the accused petitioner under section 72 of
the Act of 1982.
3. Counsel appearing for the accused petitioner
argued and submitted that prior to filing the above complaint
(Ex.P1) against the petitioner and Mr. K.P. Singh, one notice
dated 20.11.2015 was sent to Mrs. Rajeshwari Devi w/o Late
Shri Hotam Singh Tomar, who is the mother of the petitioner,
in which the JDA directed Mrs. Rajeshwari Devi to remove the
construction from the encroached land within a period of
three days. In the said notice, it was informed to the
addressee that encroachment has been done on the land of
the JDA by constructing G+3 storied building there. Counsel
submitted that the said notice was non-est in the eye of law
as Mrs. Rajeshwari Devi had expired way back on
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23.12.2000. In these circumstances the notice was ex-facie,
illegal and invalid. Counsel also submitted that the notice was
given in the name of Smt. Rajeshwari Devi and without any
notice to the petitioner, he has been wrongly made as an
accused in the present matter.
Counsel further submitted that the present
proceedings are abuse of process of law as it is clear by the
NIMS University Rajasthan, Jaipur Act, 2008 (for short 'the
Act of 2008') that no part of JDA land has been encroached
and therefore no prosecution ex-facie against law made by
legislature is maintainable. Counsel also submitted that the
proceedings are further not maintainable for the reason that
Indian Medical Trust does not control the land in question
rather the land is vested to NIMS University. Indian Medical
Trust is merely a sponsoring body of the NIMS University.
Counsel also submitted that even otherwise Indian
Medical Trust has not been made a party to the proceedings
in absence of which no vicarious liability can be imposed upon
the petitioner and therefore proceedings against him are
liable to be set aside on this ground alone.
Counsel further submitted that the complaint
(Annex.P1) had been filed without due authorization by the
respondent- JDA, the authorization relied upon at this point is
improper and does not entitle the officer to file the complaint.
Counsel submitted that the notice is given in the name of a
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dead person and therefore, it is non-est in the eye of law.
Counsel also submitted that the petitioner, being the
Chairman of the Indian Medical Trust, cannot be prosecuted
without the Trust being made a party in the criminal dispute.
It is an established principle of law that for imputing any
liability upon the employee of any artificial body, be it a
company or a trust, the artificial body itself has to be first
made a party. Counsel also submitted that the petitioner who
is the Chairman of the Indian Medical Trust cannot be
prosecuted vicariously for the criminal actions on the part of
the University. After the enactment of the Act of 2008, it is
more than clear that the Indian Medical Trust will have no
control over the affairs of the University. Counsel submitted
that the judicial process is a solemn proceeding which cannot
be allowed to be converted into an instrument of oppression
or harassment. It is an established principle of law that
criminal prosecution cannot be allowed to proceed when no
prima facie case is made out.
4. Counsel appearing for the respondent JDA argued
and submitted in the reply that there is an encroachment on
the JDA land in question and the petitioner has encroached
upon the same. Counsel submitted that the accused
petitioner being Chairman of the Indian Medical Trust, is
certainly responsible for the said encroachment upon the JDA
land. Counsel also submitted that when the site inspection
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was done by the Enforcement Officer, it was found that there
is an encroachment upon the JDA land and accordingly the
notice was sent but subsequently when it has come into the
notice of the JDA that Smt. Rajeshwari Devi has expired in
the year 2000 and the accused petitioner was the Chairman
of the Indian Medical Trust, the complaint has rightly been
filed against the accused petitioner. Counsel further submitted
that it was the petitioner and Mr. K.P. Singh who are
responsible for the encroachment made on the JDA land,
therefore, the complaint has rightly been filed under section
72 of the Act of 1982 wherein the learned Magistrate took
cognizance and thereafter fixed the matter for pre-charge
evidence but he failed to appear before the learned
Magistrate. Thereafter the petition has been filed by the
petitioner after more than six and half years years. It is also
submitted that the petitioner is the Chairman of Indian
Medical Trust and the property of the Indian Medical Trust
vests in the NIMS University after the formation of the NIMS
University. Counsel also submitted that the encroachment
upon the JDA land has been made, therefore, the
Enforcement Officer has rightly filed the complaint against the
petitioner and Shri K.P. Singh who being responsible for the
encroachment.
Counsel further submitted that the complaint has
been filed by the Enforcement Officer, Zone-13, JDA in as
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much as that vide one Notification dt. 25.8.1990, JDA
authorized the Enforcement Officer to file the complaint on
behalf of the JDA. Subsequently thereafter, vide another
order issued on 6.11.2017, it has been clarified that in place
Dy. Director (Enforcement), Dy. Controller (Enforcement) be
read. Counsel also submitted that the complaint has been
filed by the complainant- Enforcement Officer as per the
orders of the Dy. Controller (Enforcement). Counsel further
submitted that during the course of site inspection, the
concerned Enforcement Officer has already made it clear that
for the encroachment made on the JDA land, the petitioner is
also responsible. Thus, no interference is required to be made
in the present matter.
5. Considered the submissions advanced by the
counsel appearing for the accused petitioner and the counsel
appearing for the JDA and also gone through the entire
material made available to the Court.
6. The facts relevant for the purpose of decision of the
present criminal misc. petition are that the Act of 2008 which
received the assent of the Governor of Rajasthan on 29th day
of March, 2008 came into force w.e.f. 19th January, 2008. As
per definition clause 2(u) of the Act of 2008, there is a
'Sponsoring Body' which means the Indian Medical Trust,
having Registration No.6, Jaipur, 2000 dated 26.8.2000,
registered under the Rajasthan Public Trusts Act, 1959
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(Rajasthan Act No.42 of 1959). Section 2(za) of the Act of
2008 defines the 'University' which means the Nims
University Rajasthan, Jaipur.
Section 3(2) of the Act of 2008 provides that the
movable and immovable property specified in the Schedule I
shall be vested in the University and the Sponsoring Body
shall, immediately after commencement of this Act, take
steps for such vesting.
In view of the aforesaid provisions of the Act of
2008 and the facts on record, the Indian Medical Trust which
is a Sponsoring Body handed over the movable and
immovable property specified in Schedule I to the NIMS
University. The Officers of the University have been defined in
section 11 of the Act of 2008 which includes the Chancellor,
the Vice-chancellor, the Pro-Vice-chancellor, the Provost, the
Proctor, the Deans of Faculties, the Registrar, the Chief
Finance and Accounts Officer and such other officers as may
be declared by the Statutes to be the officers of the
University. In view of the provisions of the aforesaid Act, it is
very much clear that after enactment of the Act of 2008 and
vesting of the movable and immovable property with the
University and the activity undertaken by the University
thereafter it is the University which could be held responsible
and liable for all such alleged activities in accordance with the
procedure given under the law.
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7. The other relevant facts are that on 20.11.2015 the
Jaipur Development Authority issued a notice under section
72 of the Act of 1982 to Mrs. Rajeshwari Devi w/o Late Shri
Hotam Singh Tomar, in the capacity of Officer of the NIMS
University as regards the encroachment over the JDA land
categorised as 'Gair Mumkin Nalah/ pasture land' measuring
110 x 100 ft. by constructing G+3 storied building.
8. The JDA has stated in its memo of reply that when
it came to know that Smt. Rajeshwari Devi to whom the
notice under section 72 of the Act of 1982 was issued on
20.11.2015, expired long back, the Enforcement Officer of
the JDA, Zone-13 filed a complaint under section 72 of the
Act of 1982 against the petitioner being the Chairman of the
Indian Medical Trust and one Mr. K.P. Singh in the capacity of
the Registrar of the NIMS University with the allegation of
encroachment over the JDA land, as has been mentioned in
the notice dated 20.11.2015. The notice dated 20.11.2015 is
said to have been issued on the basis of the inspection report
made by the JDA Officers.
9. The first and foremost submission of the counsel for
the petitioner is that since after enactment of the Act of 2008
the Indian Medical Trust i.e. the 'Sponsoring Body' as
defined under section 2(u) of the Act of 2008 has no control
over the day to day functioning of the NIMS University as all
the activities are conducted by the Officers of the NIMS
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University, all the movable and immovable properties, as
mentioned in Schedule I, have already been vested in the
NIMS University and if any construction is made by the
University, that is under the Control of the Officers of the
NIMS University and not the 'Sponsoring Body' i.e. the Indian
Medical Trust.
10. On perusal of the provisions of the Act of 2008, this
Court finds that the Act of 2008 came into force w.e.f. 19th
January, 2008 after assent of the Governor of Rajasthan on
29th day of March, 2008. As per section 3 of the Act of 2008,
the movable and immovable property specified in the
Schedule I vests in the University. The powers and functions
of the University have been given in section 5 of the Act of
2008. The notice dated 20.11.2015 under section 72 of the
Act of 1982 has been issued by the JDA in the name of Mrs.
Rajeshwari Devi, treating her to be the Officer of the
University with the allegations that the University has
encroached upon the JDA land by constructing G+3 storied
building. Once on the inspection made by the JDA Officers it
has come out that the encroachment has been made by the
NIMS University then only the Officers of the University could
be held liable for such encroachment and not the person
having concerned with the 'Sponsoring Body' i.e. the Indian
Medical Trust. However, the JDA has filed the complaint under
section 72 of the Act of 1982 against the petitioner being the
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Chairman of the Indian Medical Trust (Sponsoring Body) and
also against one Mr. K.P. Singh as Registrar of the NIMS
University. After enactment of the Act of 2008 only the
Officers of the University along-with the University can be
held responsible / accountable /liable for any activity of the
University and not the person concerned with the Indian
Medical Trust i.e. the 'Sponsoring Body'.
11. The another submission made by the counsel for
the accused petitioner is that the complaint has been filed
against the accused petitioner and one Mr. K.P. Singh without
incorporating either the Indian Medical Trust or the NIMS
University as a party and in absence of impleading the
Corporate Institution i.e. 'The Indian Medical Trust or NIMS
University' as a party to the complaint. No vicarious liability
can be imposed upon the petitioner and the petitioner cannot
be prosecuted.
12. Section 74 of the Act of 1982 says that if the
person committing an offence under this Act is a company,
every person, who at the time the offence was committed
was incharge of, and was responsible to the company for the
conduct of the business of the company as well as the
company, shall be deemed to be guilty of the offence and
shall be liable to be proceeded and punished accordingly.
13. Section 141 of the Negotiable Instruments Act is
pari materia with section 74 of the Act of 1982. The Hon'ble
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Apex Court in the case of Aneeta Hada v. Godfather
Travels & Tours Private Limited & Other connected
matters, reported ion (2012) 5 SCC 661, has observed
as under:-
"59. In view of our aforesaid analysis, we arrive at
the irresistible conclusion that for maintaining the
prosecution under Section 141 of the Act,
arraigning of a company as an accused is
imperative. The other categories of offenders can
only be brought in the drag-net on the touchstone
of vicarious liability as the same has been
stipulated in the provision itself. We say so on the
basis of the ratio laid down in C.V. Parekh [(1970)
3 SCC 491 : 1971 SCC (Cri) 97] which is a three-
Judge Bench decision. Thus, the view expressed in
Sheoratan Agarwal [(1984) 4 SCC 352 : 1984 SCC
(Cri) 620] does not correctly lay down the law and,
accordingly, is hereby overruled. The decision in
Anil Hada [(2000) 1 SCC 1 : 2001 SCC (Cri) 174] is
overruled with the qualifier as stated in para 51.
The decision in Modi Distillery [(1987) 3 SCC 684 :
1987 SCC (Cri) 632] has to be treated to be
restricted to its own facts as has been explained by
us hereinabove."
In the case of Hindustan Unilever Limited Vs.
State of Madhya Pradesh, reported in (2020) 10 SCC
751, the Hon'ble Apex Court has observed as under:-
"22. Section 17 of the 1954 Act reads as under:
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"17. Offences by companies.--(1) Where
an offence under this Act has been committed
by a company--
(a)(i) the person, if any, who has been
nominated under sub-section (2) to be in
charge of, and responsible to, the company
for the conduct of the business of the
company (hereinafter in this section referred
to as the person responsible), or
(ii) where no person has been so
nominated, every person who at the time the
offence was committed was in charge of, and
was responsible to, the company for the
conduct of the business of the company; and
(b) the company,
shall be deemed to be guilty of the offence and
shall be liable to be proceeded against and
punished accordingly:
Provided that nothing contained in this sub-
section shall render any such person liable to any
punishment provided in this Act if he proves that
the offence was committed without his knowledge
and that he exercised all due diligence to prevent
the commission of such offence."
(emphasis supplied)
23. Clause (a) of sub-section (1) of Section 17 of
the Act makes the person nominated to be in
charge of and responsible to the company for the
conduct of business and the company shall be
guilty of the offences under clause (b) of sub-
section (1) of Section 17 of the Act. Therefore,
there is no material distinction between Section
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141 of the NI Act and Section 17 of the Act which
makes the company as well as the nominated
person to be held guilty of the offences and/or
liable to be proceeded and punished accordingly.
Clauses (a) and (b) are not in the alternative but
conjoint. Therefore, in the absence of the
company, the nominated person cannot be
convicted or vice versa. Since the Company was
not convicted by the trial court, we find that the
finding of the High Court to revisit the judgment
will be unfair to the appellant-nominated person
who has been facing trial for more than last 30
years. Therefore, the order of remand to the trial
court to fill up the lacuna is not a fair option
exercised by the High Court as the failure of the
trial court to convict the Company renders the
entire conviction of the nominated person as
unsustainable."
In the case of P. Pramila & Ors. Vs. State of
Karnataka & Anr., reported in (2015) 17 SCC 651, the
Hon'ble Apex Court has observed as under:-
"4. During the course of hearing, the learned
counsel for the appellants invited our attention to
the fact that cognizance of an offence could be
taken only by the Board or an officer authorised by
the Board in terms of Section 43 of the Air Act.
Section 43 aforementioned was the primary basis
of the challenge raised before us. The same is
being reproduced hereunder:
"43.Cognizance of offences.--(1) No
court shall take cognizance of any offence
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under this Act except on a complaint made by
--
(a) a Board or any officer authorised in this behalf by it; or
(b) any person who has given notice of not less than sixty days, in the manner prescribed, of the alleged offence and of his intention to make a complaint to the Board or officer authorised as aforesaid, and no court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the First Class shall try any offence punishable under this Act.
(2) Where a complaint has been made under clause (b) of sub-section (1), the Board shall, on demand by such person, make available the relevant reports in its possession to that person:
Provided that the Board may refuse to make any such report available to such person if the same is, in its opinion, against the public interest."
5. Our attention has been pointedly invited to sub-
section (1) of Section 43 of the Air Act. Having perused the same, there cannot be any doubt, that when the authorities decided to initiate proceedings under the provisions of the Air Act, the complaint could have been made either by the Board or by an officer authorised by the Board. The question which has to be adjudicated upon (as has been raised by the appellants), was whether, the complaint in furtherance of which CCs Nos. 546-49 of 2006 had (Downloaded on 01/03/2025 at 12:32:59 AM) [2025:RJ-JP:5945] (15 of 20) [CRLMP-3796/2022] been filed by the Board or an officer authorised by the Board. To be valid, in terms of the mandate of Section 43(1) of the Air Act, it ought to be filed either by the Board or by an officer authorised by the Board.
7. According to the learned counsel for the respondents, proceedings came to be initiated by an order dated 4-4-2006 passed by the Chairman of the Karnataka State Pollution Control Board. Relevant extract of the above order is reproduced below:
"In view of the above, I do hereby authorise the Regional Officer, Karwar to initiate criminal action under Section 37 of the Air (Prevention and Control of Pollution) Act, 1981 by filing criminal case in the competent court against 17 occupiers of the iron ore stackyards located in and around the Karwar, Ankola and Jolda Taluks of Uttara Kannada District as per the list enclosed as Annexure 1."
Having perused the aforesaid communication it emerges that the Chairman of the Board authorised the Regional Office, Karwar to initiate criminal action under Section 37 of the Air Act, by filing criminal cases in courts having jurisdiction to deal with them, against 17 owners of iron ore stackyards, located in and around the Karwar, Ankola and Jolda Taluks of Uttara Kannada District. It is not possible to accept the contention of the respondents that initiation of the proceedings on the basis of the above order dated 4-4-2006 can be treated as compliance with the mandate (Downloaded on 01/03/2025 at 12:32:59 AM) [2025:RJ-JP:5945] (16 of 20) [CRLMP-3796/2022] contained in Section 43(1) of the Air Act, because the same has reference to a complaint made by the "Board or any officer authorised in this behalf by it"."
14. In view of the provisions of the Act of 1982 and the observations of the Hon'ble Apex, as referred to above, the complaint against the accused petitioner without implicating/ impleading the NIMS University and so also the Indian Medical Trust as a party, the complaint only against the accused petitioner being the Chairman of the Indian Medical Trust i.e. the 'Sponsoring Body' under the Act of 2009 for encroachments alleged to have been made by the NIMS University, is not maintainable.
15. The counsel appearing for the accused petitioner has also raised an issue and admitted by the respondent- JDA in its reply that the initially the notice is required to be issued against the encroacher on the basis of the inspection report but the same has been issued against a dead person and therefore, the complaint based on such notice is not maintainable. It is not in dispute that on the date of issuance of the notice dated 20.11.2015 under section 72 of the Act of 1982, Mrs. Rajeshwari Devi died long back and the respondent -JDA did not take care to issue notice to the concerned authority of the University being a Corporate Institution, as required under section 72 of the Act of 1982. (Downloaded on 01/03/2025 at 12:32:59 AM) [2025:RJ-JP:5945] (17 of 20) [CRLMP-3796/2022] The complaint has been filed against the petitioner and one Mr. K.P. Singh without any such notice.
16. The High Court of Bombay in Raniben Khimji Patel vs. Assistant Commissioner of Income Tax and Others, reported in 2022 SCC OnLine Bom 342 has observed as under:-
"7. There are many other judgments including one of the Gujarat High Court in the case of Bhupendra Bhikhalal Desai (Decd.) v. ITO (2021) 17 ITR-OL 604 (Guj) ; (2021) 130 taxmann.com 196 (Guj) where also the court held that the notice issued to a dead person is not valid. This judgment of the Gujarat High Court has been upheld by the hon'ble apex court in ITO v. Bhupendra Bhikhalal Desai (2021) 131 taxmann.com 40 (SC).
8. In the circumstances, we hereby grant prayer clause (i) which reads as under :
"(i) that this hon'ble court may be pleased to issue a writ of certiorari or a writ in the nature of certiorari or any other appropriate writ, order or direction, calling for the records of the petitioner's case and after going into the legality and propriety thereof, to quash and set aside the said notice under section 148 of the Act dated June 30, 2021 ('exhibit I')."
9. Since we have quashed the notice itself as not maintainable having been issued to a dead person, we are not considering the other aspect as to whether the respondent was correct in issuing (Downloaded on 01/03/2025 at 12:32:59 AM) [2025:RJ-JP:5945] (18 of 20) [CRLMP-3796/2022] notice without following the mandatory provisions of law."
17. The complaint (Annex.P1) based on a notice dated 20.11.2015 issued against a dead person is therefore, not sustainable.
18. Counsel appearing for the accused petitioner has also raised an issue that the Enforcement Officer of the JDA Zone-13 is not having any authority to file the complaint. For consideration of this issue the provision of section 75 of the Act of 1982 are required to be quoted, which is quoted as under:-
"75. Cognizance of offences- (1) No court shall take cognizance of any offence punishable under this Act or any rule or regulation or order made thereunder except Upon a complaint in writing of the facts constituting such offence made by the Authority, Or by a person expressly authorized in this behalf by the Authority:
Provided that any person, whose right to enjoyment of his own property is adversely affected by any unauthorized development as indicated in sub-section (1) of section 31, may also file a complaint in the like manner against such person or persons who may have undertaken the said unautnorized development:
Provided further that the Authority shall also be given due notice of such proceedings and if the Authority removes the cause for action within a reasonable period, the proceedings in the Court (Downloaded on 01/03/2025 at 12:32:59 AM) [2025:RJ-JP:5945] (19 of 20) [CRLMP-3796/2022] shail abate, without prejudice to any cther action or proceedings that the Authority has initiated or may initiate thereafter.
(2) No court inferior to that of a Chief Judicial Magistrate shall try any offence punishable under this Act."
19. The JDA has issued an order dated 25.08.1990 which authorizes the Enforcement Officer to file a complaint under section 72 of the Act of 1982, however, the Enforcement Officer has to seek prior approval for filing the complaint from the Secretary, JDA, the Director Enforcement/ Dy. Director Enforcement. The respondent- JDA has not placed on record any material to show that the Enforcement Officer before filing the impugned complaint has sought prior approval from the Authorities, is required as per the order dated 25.08.1990.
20. In view of the discussions made above, this Court deems just and proper to exercise the inherent jurisdiction vested in it under the provisions of section 482 of the Code of Criminal Procedure, 1973.
21. Accordingly, this criminal misc. petition filed by the accused petitioner is allowed. The complaint (Annex.P1) filed under section 72 of the Act of 1982 qua the present petitioner and so also the consequential proceedings, are quashed and set aside.
22. Consequences to follow.
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23. This Court would like to make it clear that neither this order nor any observations or findings given by this Court, will in any manner affect any proceedings as regards the allegations of encroachment made by the NIMS University over the JDA land.
24. In view of the order passed in the main petition, the stay application and pending application/s, if any, also stand disposed of.
(GANESH RAM MEENA),J Sharma NK/Dy. Registrar (Downloaded on 01/03/2025 at 12:32:59 AM) Powered by TCPDF (www.tcpdf.org)