Madhya Pradesh High Court
Yashodaha Grih Nirman Sahakari Samiti ... vs The State Of Madhya Pradesh on 18 September, 2020
Author: Sheel Nagu
Bench: Sheel Nagu
1 Mcrc 26686/20
The High Court of Madhya Pradesh
Mcrc 26686/2020
(Yashodaha Grih Nirman Sahakari Samiti Vs. State of M.P. & others)
Gwalior dated 18.09.2020
Shri Prashant Sharma, learned counsel for the petitioner.
Shri Abhishek Mishra, learned counsel for the respondents-State.
Learned counsel for the rival parties are heard through video conferencing.
1. Inherent powers of this Court u/Sec. 482 Cr.P.C. are invoked by petitioner-Society represented through it's secretary Mukesh Tiwari to assail the illegality and validity of the FIR bearing Crime No. 65/2020 dated 14/2/2020 registered at Police Station University Road, Gwalior (M.P.), alleging offences punishable u/Sec. 292-C of the Madhya Pradesh Municipal Corporation Act, 1956 (for brevity 1956 Act) r/w Sec. 120-B IPC, lodged by Mahendra Prasad against 2 named accused Ashish Pandey and Atul Pathak while 3 rd accused is described as other office bearers of the petitioner-society.
2. Learned counsel for petitioner in support of the aforesaid challenge submits that a bare reading of the allegations contained in impugned FIR do not constitute even the basic fundamental ingredients of the offence alleged.
3. Since the principal offence alleged in the impugned FIR is the 2 Mcrc 26686/20 offence under 1956 Act, this court sought assistance of the Standing counsel of the Municipal Corporation, Gwalior Shri Deepak Khot who assisted this court as Amicus Curiae.
3.1 Learned counsel for petitioner Shri Prashant Sharma and learned Amicus Curiae Shri Deepak Khot are heard at length. 3.2 For ready reference and convenience, Sec. 292-B & Sec. 292-C of the 1956 Act are reproduced below:-
"292-B. The Registration Certificate granted under Development of Colonies.
(1) Section 292-A shall entitle the colonizer to under take the development of colonies in the municipal area subject to the provisions of this Act, and the rules made in this behalf and on the following conditions:-
(i) in every residential colony in the municipal area, out of the area of the developed plots by the Colonizer, fully developed plots equal to fifteen percent of the prescribed size shall have to be reserved for persons belonging to economically weaker sections.
(ii) Such colonizer who wishes to offer the constructed residential houses instead of developed plots in his residential colony for the persons of the economically weaker sections under clause(i) then they make available the houses of the prescribed size constructed in the prescribed area.
(iii) Such colonizer, who do not wish to develop plots 3 Mcrc 26686/20 or construct houses for economically weaker sections in his colony having an area as prescribed shall have to deposit the shelter fee at such rate as may be prescribed in the shelter fund
(iv) In respect of the land on which the Urban Land (Ceiling and Regulation) Act, 1976 was applicable, the colonizer shall have to reserve developed plots of the prescribed size in the prescribed area for the persons belonging to economically weaker sections. (2) For the allotment of plots or houses to the economically weaker sections, the procedure for the selection of eligible persons and the determination of the cost of such plots or houses shall be such as may be prescribed.
(3) The permission of the development shall be given by the Commissioner and appeal shall lie to the State Government against the order of the Commissioner. 292-C. Punishment for illegal colonization.- (1) A colonizer who, in contravention of he provisions of Section 172 of the Madhya Pradesh Land Revenue Code, 1959 (N0. 20 of 1956) 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 4 Mcrc 26686/20 offence of illegal colonization.
(3) Whoever commits or abets the commission of an offence of illegal diversion or illegal colonization shall be punished with an imprisonment of not less than three years and not more than seven years or with a 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 a minimum fine of ten thousand rupees or with both. 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 customers and shall explicitly mention the number and date of his Registration Certificate over it, and any violation of these provision shall make such colonizer liable for punishment under sub-section (3) and sub-section (5)."
3.3 The only question which begs for an answer is as to whether on 5 Mcrc 26686/20 the anvil of aforesaid statutory provision, the allegations contained in impugned FIR prima facie reveal the offence alleged or not ?. 3.4 A close scrutiny of Sec. 292-C reveals that if a colonizer inter alia 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 by 1956 Act or the rules framed therein, then he commits the offence of illegal colonization.
3.5 Thus, the offence punishable u/Sec. 292-C of 1956 Act is prima facie made out if it is established that any of the requirements contemplated by 1956 Act or the Rules framed thereunder has been breached during the process of establishing a colony. 3.6 One of the requirements for a colonizer while establishing colony is to provide fully developed plots or constructed residential houses for persons belonging to economically weaker sections and low income group.
3.7 From the above, it is evident that if colonizer while establishing colony does not provide fully developed plots or constructed residential houses for persons belonging to economically weaker sections and low income group, then he invites the rigors of penal provision u/S. 292-C of 1956 Act which is a cognizable offence inviting punishment of imprisonment of not less than 3 years but not 6 Mcrc 26686/20 more than 7 years and with minimum fine of Rs. Ten Thousand. 3.8 The crux of the allegations in the impugned FIR against petitioner is that office bearers of petitioner-society by playing fraud have obtained completion certificate for the colony in question from Municipal Corporation, Gwalior, without satisfying requirement of construction of residential houses for persons belonging to economically weaker sections and low income group. 3.9 Learned Amicus Curiae has informed this court that petitioner before starting to develop colony had chosen the option of construction of 32 flats for persons belonging to economically weaker sections and low income group and in that regard had submitted express undertaking before the Municipal Corporation, Gwalior. This revelation has not been disputed by learned counsel for petitioner. 3.10 From the above undertaking given by petitioner it is obvious that in the process of establishing a colony, the petitioner had promised to construct 32 flats for persons belonging to economically weaker sections and low income group.
3.11 Learned counsel for petitioner does not dispute that the said 32 flats for persons belonging to economically weaker sections and low income group have not been constructed before obtaining of completion certificate but submits that area in question where these 32 7 Mcrc 26686/20 flats were supposed to be built has been properly developed by providing basic amenities of road, drainage etc. 3.12 From the above it is crystal clear that one of the requirements (construction of 32 flats for persons belonging to economically weaker sections and low income group) has not been satisfied and yet completion certificate has been issued/obtained.
4. Thus, it is prima facie established that petitioner has breached one of the requirements of establishing a colony under chapter XXIII- A of the 1956 Act thereby exposing itself/himself to the rigors of penal provision u/Sec. 292-C of the 1956 Act.
5. From the above, it is clear as daylight that basic ingredients for constituting the offence punishable u/S. 292-C of the 1956 Act appears to be prima facie made out. Since investigation is still pending this court deems it proper not to say anything further lest it may adversely affect the investigation.
6. The above discussion leads to the solitary conclusion that no injustice has been caused to the petitioner or it's office bearers by registration of the offence as alleged in the impugned FIR which contains allegations which prima facie satisfy the basic ingredients for constituting the offence alleged.
7. In the absence of failure of justice having been occasioned, this 8 Mcrc 26686/20 court declines to exercise inherent powers u/Sec. 482 Cr.P.C. The petition fails and is dismissed without cost.
(Sheel Nagu)
Judge
(Bu)
Digitally signed by DHANANJAY
BUCHAKE
DHANAN DN: c=IN, o=HIGH COURT OF
MADHYA PRADESH BENCH
GWALIOR, ou=HIGH COURT OF
JAY
MADHYA PRADESH BENCH
GWALIOR, postalCode=474001,
st=Madhya Pradesh,
2.5.4.20=6489e9ca230b3031a4b4
BUCHAKE 4a621934281f589875c02fb2a20e
4220aebc8a3ba7ec,
cn=DHANANJAY BUCHAKE
Date: 2020.09.21 13:49:12 +05'30'