Allahabad High Court
Abdul Kadir vs The State Of U.P Thru Secy., Home Lucknow ... on 2 January, 2020
Author: Dinesh Kumar Singh
Bench: Dinesh Kumar Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 13 Case :- U/S 482/378/407 No. - 6196 of 2013 Applicant :- Abdul Kadir Opposite Party :- The State Of U.P Thru Secy., Home Lucknow And Ors. Counsel for Applicant :- R.P.S Chauhan Counsel for Opposite Party :- Govt. Advocate,Ajay Kumar Singh,I.H. Farooqui, Raj Kumar Singh Hon'ble Dinesh Kumar Singh,J.
1. Heard learned counsel for the petitioner, learned Additional Government Advocate, representing respondents-State as well as Mr. Ajay Kumar Singh, learned counsel representing respondents-Union of India.
2. This petition under Section 482 CrPC has been filed by the petitioner, seeking quashing of charge-sheet no.20/2011 dated 21st February, 2011 under Section 30A/30B of The Ancient Monuments and Archaeological Sites and Remains (Amendment and Validation) Act, 2010 (hereinafter referred to as 'Act, 2010'), Police Station Kaiserbagh, District Lucknow as well as the order of summoning dated 15th March, 2011 passed by the Chief Judicial Magistrate, Lucknow in Case No. 1580 of 2011.
3. An FIR at Case Crime No.476 of 2010 under Section 30A and 30B of the Act, 2010 was registered at Police Station Kaiserbagh, District Lucknow on 26.12.2010 on complaint of respondent no.4, working as foreman in the Archaeological Survey of India, Wazirganj, District Lucknow. In the complainant, it was alleged that the petitioner was raising construction within the prohibited distance from the protected Monument, Kaiserpasand at Kaiserbagh, Lucknow. It was further said that within 100 metres from the protected monument, no construction could be carried out, and within 200 metres no mining should take place.
4. The investigating officer, after investigating the offence, had filed charge-sheet against the petitioner, as mentioned above.
5. It has been stated in the petition that the petitioner was owner in possession of House No.168/62A, area 868 sq. ft. (80.699 sq. mtr.), Khayaliganj, Kaiserbagh, Lucknow. He bought the property from its earlier owner Smt. Sudarshan, wife of Mr. Banarsidas Arora and Smt. Krishna Rani, wife of Mr. Deshraj Arora through a registered sale-deed dated 25.01.1980. After purchasing the said property, the petitioner had been living in it. The petitioner required money for his business and, therefore, he decided to sell the aforesaid property. The petitioner sold the property to Mr. Maqsood Ahmad, son of Late Mohammad Siddique, resident of House No.179/7, Baroodkhana Golaganj, Police Station Wazirganj, District Lucknow for a consideration of Rupees Six Lakhs through sale-deed dated 8th February, 2008, which was registered on 19th May, 2010. It has been further stated that after purchase of the said property by Mr. Maqsood Ahmad, he raised construction on the said property, and sold the shops to different persons. One of the such shop, area 37.17 sq. mtrs. was sold by Mr. Maqsood Ahmad to Mr. Hariom Agarwal, son of Late Ramesh Chandra Agarwal vide registered sale-deed dated 29th June, 2011. Similar shops had been sold to Mr. Lavkesh Tripathi, son of Mr. Sachchidanand Tripathi on 29th June, 2011.
6. It has been further stated that after the petitioner sold the property, he had no concern with the property or construction raised by Mr. Maqsood Ahmad. The charge-sheet was filed without proper investigation and collection of the evidence. The learned Magistrate has not applied his judicial mind before taking cognizance on the charge-sheet and summoning the petitioner vide the impugned order dated 15th March, 2011.
7. Pursuant to notice issued, an affidavit has been filed on behalf of Archaeological Survey of India. It has been stated that vide Gazette Notification No.1645-M./1133 dated 22nd December, 1920 Kaiserpasand, Cemetery, Lucknow was declared as the protected monument. In the year 2010, on the south of main gate of the aforesaid protected monument, the existing old house was demolished and a new construction was started. On an inquiry, it was found that the construction was being raised by the petitioner and, therefore, a complaint dated 06.04.2010 was given at the Police Station for stopping the illegal construction being raised by the petitioner, and taking appropriate action against him. However, the illegal construction was not stopped. A notice under Section 30A of the Act, 2010 was issued to the petitioner, requiring him to show-cause as to why the illegal construction raised by him should not be demolished. The aforesaid notice was issued to the petitioner on 15th May, 2010. However, neither any reply to the show-cause notice was given nor the ongoing illegal construction was stopped.
8. On 7th May, 2010, a request was made to the District Magistrate/Senior Superintendent of Police/Secretary, Lucknow Development Authority to stop the illegal construction being raised in violation of provisions of the Act, 2010. Again, a show-cause-notice dated 22nd September, 2010 was given to the petitioner, which he did not accept. Again letters were written to the District Magistrate/Senior Superintendent of Police/Secretary, Lucknow Development Authority for stopping the illegal construction, and thereafter, on 30th September, 2010, a complaint was given at the Police Station Kaiserbagh, Lucknow for lodging an FIR and stopping the illegal construction. Again, on 6th October, 2010, a notice was given to the petitioner for demolishing the illegal construction raised by him under Section 38(1) and (2) of the Act, 2010. Thereafter, the FIR was registered on the complaint filed by the respondent no. 4 on 26th December, 2010.
9. On 19th January, 2011, Director General of Archaeological Survey of India, New Delhi had passed an order under Section 38(1) of the Act, 2010 for demolition of the illegal construction raised by the petitioner. For the first time, the petitioner replied the said order in his reply dated 9th February, 2011. He accepted in the aforesaid reply that the aforesaid house was in his ownership, which he sold on 18th May, 2010 to Mr. Maqsood Ahmad, who was raising construction on the aforesaid house.Thereafter, notice was sent to Maqsood Ahmad on the address given by the petitioner i.e. 168/62Ka, Khayaliganj, Lucknow. However, the notice came back with an endorsement 'no such house exists at Khayaliganj'. Thereafter, a direction was issued to the District Magistrate under Section 38(2) of the Act, 2010 to demolish the illegal construction raised on the southern block of the monument.
10. It is stated that the petitioner had given reply after ten months from the date of construction which started on the southern block of the monument. He deliberately delayed the information in connivance with Mr. Maqsood Ahmad. It is further stated that in view of the information furnished by the petitioner on 17th February, 2014 a notice was issued to Mr. Maqsood Ahmad for giving reply to the show-cause in respect of illegal construction raised by him. The aforesaid notice was received by one Mr Guddu on 19th February, 2014. In the reply, it was said that on 18th May, 2010, he purchased the property from Abdul Kadir whereas the report against illegal construction was lodged on 6th April, 2010 at the police station, and when the illegal construction was not stopped, show-cause-notice dated 7th May, 2010 was issued to him. The said show-cause-notice was received by the contractor working on the site on 15th May, 2010. It was said that after purchasing the property, Mr. Maqsood Ahmad had carried out construction in violation of the provisions of the Act, 2010 and rules framed thereunder, and thereafter the charge-sheet has been rightly filed, and this petition is liable to be dismissed.
11. The learned counsel for the petitioner submits that after selling the property to Mr Maqsood Ahmad, he had no right or title over the property and, therefore, the investigating officer did not carry out the proper investigation, and without there being any evidence against the petitioner, charge-sheet has been filed against him. He further submits that the learned Magistrate ought to have applied his judicial mind before taking cognizance on the charge-sheet and summoning the petitioner as an accused to face trial under Section 30A/30B of the Act, 2010 and, therefore, the impugned charge-sheet and summoning order should be quashed.
12. On the other hand, Mr. Ajay Kumar Singh, learned counsel representing Union of India, has submitted that the petitioner sold the property after lodging the FIR and issuing show-cause-notice to him as is evident from the facts stated above.The petitioner is the person, who started the construction, and after the FIR was lodged and notice was served on him, he sold the property to Mr. Maqsood Ahmad. He is the person, who started the construction and carried out till he sold the property, and thereafter Mr. Maqsood Ahmad carried out the construction. He further submits that the petition is without merit and substance and, therefore, it is liable to be dismissed.
13. At this stage, learned counsel for the petitioner submits that he would like to file an application for discharge under the provisions of the Cr.P.C. to which learned counsel for the respondents do not dispute.
14. Accordingly, the petitioner is granted liberty to file an application before the trial Court concerned in conformity with the provisions of Cr.P.C. within a period of fifteen days from today, which shall be considered and decided expeditiously, preferably within next forty-five days. The petitioner is also granted liberty to appear through counsel.
15. The Archaeological Survey of India must implement the order passed by the Directer General. The Archaeological Survey of India may request to the Police Authority for adequate security to implement the order regarding removal of unauthorized construction in order to protect the monument.
16. With the aforesaid observations/directions,this petition stands disposed of finally.
[D.K. Singh,J.] Order Date :- 2.1.2020 MVS/-