Karnataka High Court
Remco (Bhel) House Building vs The Bangalore Development Authority on 4 July, 2012
1 Crl.P 5178/07
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 4TH DAY OF JULY, 2012
BEFORE:
THE HON'BLE MR. JUSTICE A.S.PACHHAPURE
CRIMINAL PETITION No.5178 OF 2007
BETWEEN:
REMCO (BHEL) House Building
Co-operative Society,
No.364, 5th Main,
RPC (REMCO Layout),
Vijayanagar II Stage,
Bangalore-560 040,
Rep. by its President. ... PETITIONER/S
[By Sri. T.S. Amar Kumar, Adv.]
AND:
The Bangalore Development Authority,
Rep. by its Town Planning Member,
Bangalore Development Authority,
Kumara Park West,
Bangalore-94. ... RESPONDENT/S
[By Sri. K.M. Prakash, Adv.]
***
This Crl.P. is filed u/Section 482 Cr.P.C praying
to set aside the Order dt. 17.05.07 in C.C. No.13402/07
on the file of the III ACMM., Bangalore and quash the
entire proceedings in C.C. No.13402/07 pending on the
file of the III ACMM., Bangalore, as not maintainable in
law.
This Crl.P. having been heard and reserved for
Orders, this day, the Court pronounced the following:
2 Crl.P 5178/07
ORDER
The petitioner Society has approached this Court under Section 482 Cr.P.C., seeking an Order to quash the entire proceedings in C.C. No.13402/2007 on the file of the Addl. Chief Metropolitan Magistrate, Bangalore.
2. The facts reveal that the petitioner Society owns the land bearing Sy. Nos.3/1B, 6, 19/1-6, 14/1, 18/1, 5/1A, 1B and 54 of Pattanagere and other survey numbers of Kenchenahalli village, Kengeri Hobli, Bangalore South Taluk. The Society formed a layout without a sanction from the respondent i.e., Bangalore Development Authority. It is under these circumstances that the respondent issued several notices to the petitioner under Section 17(4) of the Karnataka Town and Country Planning Act, 1961 [hereinafter called as "the Act" for short] calling upon the petitioner to discontinue the developmental work as no necessary permission was obtained. A show-cause notice was also issued calling upon the petitioner to appear in the meeting to be held by the respondent on 09.11.2005, but no satisfactory explanation was offered. Therefore, the respondent alleging contravention of the provisions of 3 Crl.P 5178/07 the Act and forming of a layout without obtaining sanction of the layout plan as required under Section 17 of the Act said to have committed an offence punishable under Sections 73 r/w. 76-C of the Act. Therefore, it filed a private complaint against the petitioner under Section 200 Cr.P.C., requesting to take cognizance for the offence punishable under Sections 73 r/w. 76-C of the Act and deal with the case in accordance with law.
The Court below has taken cognizance on the complaint filed by the respondent and the petitioner aggrieved by the Order of taking cognizance and issuing process, has approached this Court to quash the proceedings.
3. I have heard learned counsel for both the parties.
4. Learned counsel for the petitioner would contend that the alleged formation of the layout without sanction is not an offence punishable under Section 73 of the Act and the allegations made in the complaint do not constitute any offence. Therefore, he claims that the Order of taking cognizance and initiating proceedings against the petitioner is illegal and has to be quashed. 4 Crl.P 5178/07
Per contra, learned counsel for the respondent submits that the trial Court has taken the cognizance for the offence punishable under Section 73 of the Act and the allegations therein constitute an offence punishable under Clauses (c) and (e) of Section 73 of the Act. It is his submission that the petitioner has formed illegal layout without either taking permission or sanction and that the petitioner has violated the provisions of Section 35(1)(a) of the Act, which is punishable under Section 73(e) of the Said Act. Therefore, he submits that the Order passed by the Court below is just and in accordance with law.
5. In the context of the submissions made by learned counsel for the parties, it is relevant to refer Clause 73(c) and (e) of the Act and they are extracted hereunder for the sake of convenience:
"73. Offences and penalties.-Whoever-
(a) x x x x x
(b) x x x x x
(c) contravenes the conditions of the
commencement certificate granted under sub-section (1) of Section 15 or of 5 Crl.P 5178/07 the sanction granted under sub-section (2) of Section 17;
(d) x x x x x
(e) does any work in contravention of
clause (a) or (b) of sub-section (1)
of Section 35;
shall, on conviction, be punished with
imprisonment for a term which may extend to three months or with fine which may extend to five thousand rupees or with both and the Court shall, in such order of conviction, direct that if such contravention continues after the date of the order of conviction, a fine not exceeding two thousand fifty rupees per day for the period from which the contravention continued shall be recovered from the person so convicted."
6. A perusal of the aforesaid provision, particularly Clause (c) would amount to an offence in case if it is alleged that the petitioner has contravened the conditions of the commencement certificate granted under sub-Section (1) of Section 15 or of the sanction granted under sub-Section (2) of Section 17 of the Act. A reading of the aforesaid provision reveals that to 6 Crl.P 5178/07 initiate action under clause (c) of Section 73 of the Act, there has to be an allegation in the complaint that the petitioner has contravened the conditions of the commencement certificate or the conditions of the sanction. It is not the case of the respondent that a commencement certificate under sub-Section (1) of Section 15 or sanction under sub-Section (2) of Section 17 of the Act is granted by it and that the petitioner has contravened the conditions incorporated either in the commencement certificate or of the sanction granted. What the respondent alleges is that the petitioner has formed a layout in the survey numbers referred to supra, without obtaining permission or sanction. Therefore, Clause (c) of Section 73 of the Act applies only in case if the petitioner has contravened conditions and not otherwise. So, when it is not the case of the respondent that any commencement certificate or sanction was granted with certain conditions, a complaint for violation either of Section 15(1) or 17(2) of the Act forming an offence under sub-Section (c) of Section 73 of the Act does not arise for consideration at all.
7. Now, to consider the second contention of learned counsel for the respondent, he claims that there 7 Crl.P 5178/07 is violation of Section 35(1)(a) of the Act and the said provision is extracted hereunder for the sake of convenience:
"35. Restrictions after declaration to make a scheme.-(1) On or after the date on which the Planning Authority's declaration of intention to make a scheme under Section 29 or the notification issued by the State Government under Section 31 is published,-
(a) no person shall with the area included in the scheme erect or proceed with any building work or remove, pull down, alter, make additions to, or make any substantial repair to any building, part of a building, a compound wall or any drainage work or remove any earth, stone or material, or sub-divide any land or change the user of any land or building unless such person has applied for and obtained necessary permission which shall be contained in a commencement certificate granted by the Planning Authority in the form prescribed;
(b) x x x x x
(c) x x x x x
(d) x x x x x"
8 Crl.P 5178/07
8. As could be seen from the aforesaid provision, it applies to a case wherein the planning authority declares its intention to make a Scheme under Section 29 of the Act or that of it has issued a notification or that a notification is issued by the State Government under Section 35(1) Clause (a) of the Act applies and it is incumbent upon a person to obtain necessary permission by way of commencement certificate granted by the plaintiff authority within the area included in the Scheme referred to in Clause (1) of the Act. Now, to refer back to the provisions of Section 29 of the Act, it relates to the jurisdiction of the planning authority or declaring its intention to make a scheme referred to in Section 28 of the Act or over any such area as is referred to in Section 26 of the Act and the Planning Authority has to make a resolution declaring its intention to make a Town Planning Scheme in respect of the whole or any part of such land or such area, so Section 26 of the Act relates to making of Town Planning Scheme and its contents.
9. So, the perusal of aforesaid provisions would indicate that the Planning Authority has to declare its intention to make its scheme aforesaid and within the 9 Crl.P 5178/07 area of the Scheme introduced, no person can put up construction or sub-divide any land or change the user of any land etc., unless such person has applied for and obtained necessary permission by way of commencement certificate. A reading of the allegations in the complaint does not reveal anything about the decision taken by the respondent by way of a resolution or declaration of its intention to make a Scheme and unless there is such an averment in the complaint as required under sub-Section (1) of Section 35, Clause (a) of the said provision is not at all attracted. Thereby, the absence of allegations of the facts stated above, in the complaint filed by the respondent, lacks material ingredients for an offence punishable under Section 73(e) of the Act for violation of Section 35(1)(a) of the Act.
10. Whenever a person forms a layout in contravention of sub-Section (1) or in contravention of the conditions of the sanction granted in sub-Section (a) of the Act, the respondent as an Authority can take action under Clause (4) of Section 17 of the Act directing the petitioner to stop any work in progress and after making an enquiry in the prescribed manner remove or pull-down or restore the land to its original 10 Crl.P 5178/07 condition. So, if there violation of Section 17(1) of the Act, a remedy is provided to the respondent under Clause (4) of the Act and mere formation of a layout without a sanction does not amount to an offence under Section 73(c) of the Act. For the aforesaid reasons this Court is of the opinion that the Order which does not even specify the offence under any of the sub-Clause of Section 73 of the Act is illegal and the proceedings will have to be quashed.
In the result, the petition is allowed. Therefore, the Order taking cognizance and the consequent proceedings in C.C. No.13402/2007 are hereby quashed.
Sd/-
JUDGE.
Ksm*