Allahabad High Court
R.M.L. Mehrotra Pathology Pvt. Ltd., ... vs State Of U.P. Thru. Its Addl. Chief ... on 30 August, 2023
Author: Rajeev Singh
Bench: Rajeev Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Neutral Citation No. - 2023:AHC-LKO:58260 Reserved Court No. - 12 Case :- APPLICATION U/S 482 No. - 6333 of 2023 Applicant :- R.M.L. Mehrotra Pathology Pvt. Ltd., Thru. Its Director Dr. Bandana Mehrotra And Others Opposite Party :- State Of U.P. Thru. Its Addl. Chief Secy./Prin. Secy. Deptt. Of Home, Lko. And Others Counsel for Applicant :- Gaurav Mehrotra,Abhineet Jaiswal,Rani Singh Counsel for Opposite Party :- G.A.,Ratnesh Chandra,Vidhu Bhushan Kalia Hon'ble Rajeev Singh,J.
1. Heard Sri Gaurav Mehrota, learned counsel for the applicant, learned A.G.A. for the State and Sri Vidhu Bhushan Kalia, learned counsel for the Lucknow Development Authority.
2. The present application under Section 482 Cr.P.C. is filed with the prayer to quash the entire proceeding of Complaint No.5695 of 2023 'L.D.A. through Awadhesh Kumar Singh, Assistant Engineer, L.D.A., Lucknow Vs. Sri R.M.L. Mehrotra', pending before the learned Chief Judicial Magistrate, Lucknow.
3. Learned counsel for the applicant submits that property in question of measuring area of 540 square meters was taken byway of lease deed for residential purposes, upon which single story residential house was constructed on 31.5.1986, thereafter, after completing all formalities in relation to the premises in question, on 29.7.1997 a freehold deed was executed between the applicant no.2 and respondent no.2. Applicant No.1 is a private limited company duly registered under the provisions of Companies Act, 1956 on 11.4.2005 in the Office of the Registrar of Companies, U.P. at Kanpur for running a business of Pathology and Clinical Pathological Testing Laboratories and other related activities, etc. In accordance with the proper value, approval and sanction of competent authorities, applicant No.2 and 3 are the Directors of the aforesaid company, M/S R.M.L. Pathology Private Limited at A-21/A, Nirala Nagar, Lucknow (hereinafter referred to as 'lab'). As the aforesaid lab is duly approved by the Office of Chief Medical Officer, Lucknow and is being renewed every year.
4. Learned counsel for the applicant submits that a part of the premises in question is being used as a sample collection center for testing/examination in the lab at Nirala Nagar, Lucknow. He further submits that in the said premises, no laboratory is being operated, it is merely a collection center wherein pathological samples are being stored for testing/examination to be sent to the Pathological Lab, which is equipped with proper testing machines, apparatus, facilities, etc.
5. Learned counsel for the applicant submits that Complaint Case No.7355 of 2010, 'L.D.A Vs. Dr. R.M.L. Pathology' was filed under Section 26(2) of U.P. Urban Planning Development Act, 1973 Act (hereinafter referred to as 'Act of 1973') against Lab as well as Dr. R.M.L. Mehrotra, (died on 28.11.2005) before Chief Judicial Magistrate, Lucknow. He further submits that before filing of the aforesaid complaint officers of the private respondent never examined all these facts alleged in complaint and filed against company as well as dead person, however, applicant no.3 who happens to be daughter-in-law of Late Dr. R.M.L. Mehrotra on advice, compounded the offences before the court of Chief Judicial Magistrate, Lucknow and thereafter, the aforesaid complaint case was concluded vide its judgment and order dated 23.01.2011 on account of admission of guilt, imposed penalty of Rs. 10,000/- upon the applicant No.3 and thereafter, the aforesaid amount was deposited.
6. Learned counsel for the applicant submits that another Complaint Case No.2571/2022 was filed by L.D.A. against Lab through Dr. Bandana Mehrotra with the allegation of continue contravention of provisions under Section 16 read with Section 26(2) of 1973 Act, after obtaining the sanction from the prescribed authority. The learned court below took cognizance on the aforesaid complaint on 19.5.2022 and summon was issued against applicant No.3 and she was enlarged on bail on 21.9.2022 upon furnishing a bond of Rs.25,000/-. During the course of pendency of aforesaid complaint, L.D.A. filed Complaint Case No.5695 of 2023 against a dead person, i.e., Late R.M.L. Mehrotra and summon was issued by the court below on 7.1.2023, titled as 'second complaint', which is based on the report dated 14.10.2022, in which, it is mentioned that inspection of premises in question was carried out on 26.9.2022 at 11:00 A.M. and it was found that as per the Lucknow Master Plan, the premises in question is marked as 'residential' but the same is being utilized for 'commercial activity', which is in contravention of Section 16 read with Section 26(2) of 1973 Act.
7. Learned counsel for the applicant submits that for the continuance offence, multiple complaints cannot be filed and he also relied on the decision of T.T. Antony Vs. State of Kerala reported in 2001 6 SCC 281. He also submits that it is well settled that 30% of the area of premises can be utilized as Office/Clinic by Lawyers, Doctors and Architects and relied on the decision of Hon'ble Apex Court in the case of R.K. Mittal Vs. State reported in 2002 (1) UPLBEC 444. He further submits that in a criminal case, the summoning order must reflect that Presiding Officer has applied his mind to the fact of the cases and the law applicable thereto but in the present case, the impugned order does not reflect the same, he relied on the decision of Hon'ble Apex Court in the case of Pepsi Foods Ltd. & Anr. Vs. Special Judicial Magistrate & Ors. reported in (1998) 5 SCC 749.
8. Learned counsel for the applicant also submits that as per the Lucknow Master Plan, 2031, several activities are permissible in different prescribed land zones and the mandatory conditions and prohibitions for conditional permissible activities are mentioned in Clause 9.4 of the aforesaid Master Plan. He further submits that as per the entry 5.21 in the matrix appended to the Master Plan, 2031, the Pathology Laboratory comes under the category of 'conditionally permissible use category' in the residential area. The conditions which has been prescribed for operating pathology laboratory in the residential area is that it should be situated in the minimum 18 metre wide road and if the complainant, L.D.A. is under impression that Pathology was being run in the premises in question, then it could not have been termed to be in violation of permissible land use as per the master plan of 2031, as the area in question is situated in more than 18 meter vide road, therefore, indulgence of this Court is necessary and the impugned proceeding is liable to be set aside.
9. Learned counsel for the Lucknow Development Authority opposed the prayer of the applicant and submits that applicant may appear before the court below and apprise all these facts. He further submits that it is undisputed fact that the property in question is purchased for residential purpose from L.D.A. and without prior permission they cannot run any other activities. He further submits that all the complaints are in relation to the different inspection reports and therefore, it cannot be said that if the prosecution was initiated on the basis of one inspection report, then subsequent inspection cannot be done and in case, subsequent inspection was done, then applicant cannot be prosecuted further. As in all complaints, date, time for committing offfence are different, therefore, the plea of double jeopardy is not applicable in the present case. He further submits that Master Plan, 2031 provides that Pathology can be permitted to run but in the present case, no permission has been obtained for running collection center and it is admitted case of the applicant that request was made by applicant No.2 before the L.D.A. for the conversion of land use from 'residential' to 'commercial' and in response to his request, vide letter dated 9.11.2016, it was informed to him vide decision dated 24.10.2016, that conversion fee of Rs.70,41,628/- be deposited then procedure will be started for conversion (letter is annexed at page-148 of the application). Thereafter, applicant No.2 responded vide letter dated 20.12.2016 and informed that Rs.4,00,000/- was deposited by way of Demand Draft No.859238, dated 19.12.2016 of Yes Bank and balance amount be deposited soon. He further submits that applicants are fully aware that in the residential area, pathology or its ancillary unit can be run with the permission of L.D.A. but he did not obtain any permission. He also submits that in the 172th Board meeting of L.D.A., dated 15.12.2021, it was resolved that decision of conversion of land use be taken in relation to the property situated adjoining to the 24 metre vide road in different heads and the proposal has already been sent to the State Government vide letter dated 29.12.2021 but the same is still pending, (copy of the same is annexed as C.A.1 with the counter affidavit). In such circumstance, there is no illegality in the order passed by the court below, therefore, the application under Section 482 Cr.P.C. is liable to be dismissed.
10. Considering the submissions of learned counsel for the parties, going through the contents of the application as well as other relevant documents, it is undisputed fact that three different complaints were lodged by the Lucknow Development Authority in relation to different inspection reports with prior approval, as it is also undisputed that applicant No.2 has already requested for conversion of the land use and Rs.4,00,000/- has also been deposited, in lieu of, payment of Rs.70,41,628/-. Therefore, the ground of double jeopardize is not available but it is undisputed that the person who is arrayed as an acused in complaint was passed away on 28.11.2005, therefore, it is evident from the record that complaint is filed against dead person. In such circumstances, the present application under Section 482 Cr.P.C. is allowed and entire proceeding of Complaint Case No.5695 of 2023 is hereby set aside on the ground that complaint is filed against a dead person.
11. No order to cost.
Order Date :- 30.8.2023 Gaurav/-