Sushila vs State Of Chhattisgarh

Sanjay K. Agrawal, J

This writ petition filed by the petitioner under Article 226/227 of the Constitution of India is directed against the order dated 18.03.2016 [Annexure-P/1(B)], passed in Criminal Revision No.05 of 2016 (Smt. Sushila and another vs. State of Chhattisgarh], whereby the Revisional Court has affirmed the order dated 05.12.2015 [Annexure=P/1(A)], passed in Criminal Case No.624 of 2014 (State of Chhattisgarh vs. Smt. Sushila and another), by which the application filed by the petitioner under Section 468(2)(b) of CrPC, claiming the complaint filed by the respondents herein under Sections 36 & 37 of the Chhattisgarh Nagar Tatha Gram Nivesh Adhiniyam, 1973 (for short the “Act of 1973”) to be beyond the period of limitation prescribed therein, has been rejected finding no merit.

The respondents herein, on 22.08.2014, have filed complaint under Sections 36 & 37 of the Act of 1973 before the Court of learned Chief Judicial Magistrate, Dhamtari alleging that in an enquiry dated 12.07.2010 it has been revealed that petitioners herein have constructed suit house unauthorizedly at Village Gokulpur, Khasra No.77/14, Rakba 0.022 hectares, Patwari Halka No.18/55, R.I. Division, Tehsil and District Dhamtari (Chhattisgarh), for which they were noticed twice on 05.05.2012 & 27.06.2014, but no reply has been filed and despite serving notice for removal of said unauthorized/illegal construction, the same has not been removed, which is an offence punishable under Sections 36 & 37 of the Act of 1973. The learned Chief Judicial Magistrate, Dhamtari took cognizance upon the said complaint filed by the respondents herein and summons were issued to the petitioners herein. Upon receipt of summons, petitioner herein appeared before the learned CJM, Dhamtari and filed application under Section 468(2)(b) of CrPC on 27.07.2015 stating that the construction in question has already been completed in the year 2005-06 and at the relevant point of time, Village Gokulpur comes within the ambit of Gram Panchayat Rudri and, therefore, they have taken no objection certificate from gram panchayat and constructed the house in question, and, as such, the complaint filed by the respondent herein is beyond the period of limitation and same is liable to be rejected. Learned CJM, Dhamtari by its order dated 05.12.2015 rejected the application filed by the petitioner herein, against which revision was preferred and by way of impugned order dated 18.03.2016 said revision has also been dismissed affirming the order of learned Chief Judicial Magistrate.

Mr. Alok Kumar Dewangan, learned counsel for the petitioners would submit that the learned Courts below are absolutely unjustified in rejecting the application of the petitioners and not holding the complaint filed by the respondents herein as barred by limitation, as such, the impugned order and the complaint filed by the respondents under Section 36 & 37 of the Act of 1973 deserves to be quashed.

Per-contra, Mr. Sudeep Verma, learned State counsel would submit that both the Courts below are absolutely justified in rejecting the objection/application filed by the petitioner herein, as such, the writ petition deserved to be dismissed.

We have heard learned counsel for the parties considered their rival submissions made herein above and went through the record with utmost circumspection.

Admittedly, petitioner has made construction on the land bearing Khasra No.77/14, Rakba 0.022 hectares, Patwari Halka No.18/55 situated Village Gokulpur, R.I. Division, Tehsil and District Dhamtari (Chhattisgarh) and on the complaint so made, an enquiry was conducted on 12.07.2010 and notices were also sent to the petitioners on 05.05.2012 & 27.06.2014, but when no reply has been filed by the petitioners herein despite serving of notice for removal of said illegal construction, the respondents herein filed complaint under Sections 36 & 37 of the Act of 1973 before the Court of learned CJM, Dhamtari on 22.08.2014, which is said to be barred by limitation in view of Section 468(2)(b) of CrPC.

In order to consider the plea, it would be appropriate to notice here Section 36 & 37 of the Act of 1973, which reads as under:

“36. Penalty for unathorised development or for used otherwise than in conformity with development plan.- Any person who, whether at his own instance or at the instance of any other person, commences, undertake or carries out any development or changes use of and land,-

(a) without permission required under this Act;

(b) in contravention of the permission granted or any condition subject to which such permission has been granted;

(c) after the permission for development has been duly revoked; or

(d) in contravention of any permission which has been duly modified,

shall, without prejudice to any action that may be taken under Section 37, be punished with simple imprisonment for a term which may extend to six months, or with fine which may extend to two thousand rupees or with both, and in the case of a continuing offence with further fine which may extend to two hundred rupees for every day during which the offence continues after conviction for the first commission of the offence.

Power to require removal of unauthorised development.-

(1) Where any development has been carried out as indicated in Section 36 the Director may, within five years of such development, serve on the owner a notice requiring him, within such period being not less than one month and not exceeding three months as may be specified therein from the date of the service of the notice,-

(a) in cases specified in clause (a) or (c) of Section 36 to restore the land to its condition existing before the said development took place;

(b) in cases specified in clause (b) or (d) of Section 36 to secure compliance with the conditions or with the permission as modified :

Provided that where the notice requires the discontinuance of any use of land, notice shall be served on the occupier also.

(2) In particular, such notice may, for purpose of sub-section (1), require,-

(a) the demolition or alteration of any building or works;

(b) the carrying out on land of any building or other operations; or

(c) the discontinuance of any use of land.

(3) Any person aggrieved by such notice may, within fifteen days of the receipt of the notice and in the manner prescribed, apply to the Director for permission for retention on the land of any building or works or for the continuance of any use of the land to which the notice relates and till the time the application is disposed of, the notice shall stand withdrawn.

(4) The foregoing provisions of this chapter shall so far as may be applicable apply to an application made under sub-section (3).

(5) If the permission applied for is granted, the notice shall stand withdrawn; but if the permission applied for is not granted, the notice shall stand; or if such permission is granted for the retention only of some buildings, or works, or for the continuance of use of only a part of the land, the notice shall stand withdrawn as respect such buildings or works or such part of the land, but shall stand as respects other buildings or works or other parts of the land, as the case may be; and thereupon the owner shall be required to take steps specified in the notice under sub-section (1) as respects such other buildings, works or part of the land.

(6) If within the period specified in the notice or within the same period after the disposal of the application the notice or so much of it as stands is not complied with, the Director may,-

(a) prosecute the owner for not complying with the notice and whether the notice requires the discontinuance of any use of land, any other person also who uses the land or causes or permits the land to be used in contravention of the notice; and

(b) where the notice required the demolition or any alteration of any building or works or carrying out of any building or other operations itself cause the restorations of the land to its condition before the development took place and secure compliance with the condition of the permission or with the permission as modified by taking such steps as the Director may consider necessary, including demolition or alteration of any building or works or carrying out of any building or other operations, and recover the amount of any expenses incurred by him in this behalf from the owner as arrears of land revenue.

(7) Any person prosecuted under clause (a) of sub-section (6) shall, on conviction, be punished with simple imprisonment for a term which may extend to six months, or with fine which may extend to two thousand rupees or with both, and in the case of a continuing offence with further fine which may extend to two hundred and fifty rupees for every day during which the offence continues after conviction for the fir commission of the offence.”

A careful perusal of the above stated provisions would show that Section 36 of the Act of 1973 provides penalty for unauthorized development or for use otherwise than in conformity with development plant and further provides that any person who, whether at his won instance or at the instance of any other person, commences, undertake or carries out any development or changes use of any land without permission required under the Act of 1973 shall be punished with simple imprisonment for a term which may extend to six months, or with fine which may extend to two thousand rupees or with both, and in the case of a continuing offence with further fine which may extend to two hundred rupees for every day during which the offence continues after conviction for the first commission of the offence. Similarly, sub-section (7) of Section 37 of the Act of 1973 provides that any person prosecuted under clause (a) of sub-section (6) shall, on conviction, be punished with simple imprisonment of a term which may extend to six months, or with fine which may extend to two thousand rupees or with both, and in the case of a continuing offence with further fine which may extend to two hundred and fifty rupees for every day during which the offence continues after conviction for the fir commission of the offence. As such, the punishment prescribed for commission of offences under Section 36 & 37 of the Act of 1973 is simple imprisonment for a term may be extended to six months, or with fine or with both and in case of continuing offence with further fine which may extend to two hundred rupees for every day during which the offence continues after conviction for the commission of first offence.

At this stage, it would be appropriate to notice Section 468 of CrPC, which reads as under:

“Section 468 – Bar to taking cognizance after lapse of the period of limitation.

Except as otherwise provided elsewhere in this Code, no Court, shall take cognizance of an offence of the category specified in sub-section (2), after the expiry of the period of limitation.

The period of limitation shall be -

a. six months, if the offence is punishable with fine only;

b. one year, if the offence is punishable with imprisonment for a term not exceeding one year;

c. three years, if the offence is punishable with imprisonment for a term exceeding one year but not exceeding three years.

For the purpose of this section, the period of limitation, in relation to offence which may be tried together, shall be determined with reference to the offence which is punishable with the more severe punishment or, as the case may be, the most severe punishment.”

A focused glance of Section 468(1) above would show that the legislature has injuncted the Courts not to take cognizance for an offence of the category specified in sub-section (2), after the expiry of the period of limitation as sub-section (2)(b) of Section 468 CrPC, which provides for period of limitation shall be one year if offence is punishable with imprisonment for a term not exceeding one year. In the instant case, admittedly, the punishment prescribed is six months under Section 36 & 37 of the Act of 1973 and fine in addition to the imprisonment, thus, by virtue of Section 468(2)(b) the period of limitation for filing complaint would be one year for offences under Section 36 & 37 of the Act of 1973.

Reverting to the facts of the present case, it is the case of the petitioner that the alleged construction in question has been completed in the year 2005-06 and complaint has been filed by the respondents herein on 22.08.2014, therefore barred by Section 468(2)(b) of CrPC, whereas it is the case of the respondents-State that on 12.07.2010 in an enquiry it was found that petitioners have already made unauthorized construction of residential building as on that date, but notices were sent to the petitioners on 05.05.2012 & 27.06.2014, but when no reply has been filed by the petitioners despite serving of notice for removal of said illegal construction, the respondents herein filed complaint under Sections 36 & 37 of the Act of 1973 before the Court of learned CJM, Dhamtari on 22.08.2014. Even if the case of the petitioner that construction has already been completed in the year 2005-06 is not accepted, but as per the complaint itself, the construction was found to have been made by the respondents herein on the date of enquiry i.e. on 12.07.2010, then also the complaint could have been filed within one year from the date of knowledge of construction i.e. 12.07.2010, but yet complaint was apparently filed on 22.08.2014, which is more than one year as prescribed under Section 468(2)(b) of CrPC and, therefore, the complaint has been filed much after the period of limitation prescribed under Section 468(2)(b) of CrPC. As such, the complaint, as filed on 22.08.2014 is filed after the period of limitation prescribed for filing complaint under Section 468(2) (b) of CrPC. Therefore, the learned CJM, Dhamtari has committed illegality in rejecting the application filed by the petitioners herein under Section 468(2)(b) of CrPC, which has further been affirmed by the Revisional Court.

Accordingly, the order dated 05.12.2015 passed by the Court of learned CJM, Dhamtari and the affirmation order passed by the revisional Court dated 18.03.2016 are hereby quashed and, consequently, the Criminal Case No.624 of 2014 (State of Chhattisgarh vs. Smt. Sushila and another), pending in the Court of learned CJM, Dhamtari is also quashed.

The writ petition is allowed to the extent indicated hereinabove.