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Munish Bhatia & Another v/s State of JK & Another


Company & Directors' Information:- S N BHATIA AND CO PRIVATE LIMITED [Active] CIN = U99999DL1976PTC008293

Company & Directors' Information:- BHATIA AND COMPANY PRIVATE LIMITED [Strike Off] CIN = U70109DL1986PTC024822

Company & Directors' Information:- K. BHATIA AND COMPANY PRIVATE LIMITED [Strike Off] CIN = U51420MH1960PTC011708

    CRMC. No. 58 of 2014 & IA. No. 69 of 2014

    Decided On, 07 September 2018

    At, High Court of Jammu and Kashmir

    By, THE HONOURABLE MR. JUSTICE M. K. HANJURA

    For the Petitioners: Sunil Sethi, Senior Advocate with Mohsin Bhat, Advocate. For the Respondents: L. K. Moza, AAG.



Judgment Text

01. In this petition, filed under Section 561-A of the Code of Criminal Procedure, the petitioners beseech and seek the quashing of FIR No. 02/2014, registered against them at Police Station, Vigilance Organization, Jammu, for the commission of offences punishable under Section 5(1)(d) read with Section 5(2) of the Jammu & Kashmir Prevention of Corruption Act, Samvat 2006 and Section 120-B of the Ranbir Penal Code (RPC).

02. Before examining and evaluating the merits of the petition of the petitioners, it will be appropriate to state that the FIR delineates that the petitioners, in collusion with other Officials/Officers of the Jammu Municipal Corporation, Jammu, raised a huge residential building compromising three storeyes, numbered 292-A, situated opposite to Peerbaba, Apsra Road, Gandhi Nagar, Jammu, when, in fact, the permission granted vide No. 536/BS/2009 dated 31st of July, 2009, was for residential purposes, but they, under its garb, raised a huge construction, both in terms of area and height, with huge basement meant for commercial purpose in violation of the sanctioned plan, master plan, zoning regulations and building bye-laws. No timely action, under the J&K Control of Building Operation Act, 1988 (hereinafter referred to as the 'COBO Act') and the rules thereof, was taken by the Officers/ Officials of the Jammu Municipal Corporation, Jammu, who, maintained a deep silence till such time that the building was complete. The Officials/ Officers of the Enforcement Wing of the Jammu Municipal Corporation facilitated the beneficiaries in raising the construction by giving them sufficient time and not taking any timely action of stopping/ dismantling the said construction. The Officials/ Officers of the Enforcement Wing and the Joint Commissioner (Administration), in the notices under Section 7(1) and 7(3) of the COBO Act dated 14th of August, 2012 and 17th of December, 2012, respectively, issued to the beneficiaries, deliberately and dishonestly, concealed the actual violation, did not mention so in the notices and omitted to show the violation committed by the beneficiaries in terms of floor area, ratio and height. They also ignored the violations made in terms of setbacks and the change of land use from the residential to a commercial one. They also facilitated the beneficiaries in getting the noncompoundable violations settled by the Jammu and Kashmir Special Tribunal, Jammu (hereinafter referred to as the 'learned Tribunal'). It is further stated that by conducting themselves in the manner, detailed above, the Officials/ Officers of the Municipal Corporation, Jammu, misused their official position and they, in league with the beneficiaries, conferred undue benefit upon them by deliberately and dishonestly facilitating them to raise a three-storeyed commercial complex with the basement. On these set of facts, the case aforementioned was registered against the petitioners with which the investigation ensued.

03. Aggrieved by the registration of the FIR aforesaid, the petitioners have challenged its vires before this Court on the grounds, inter alia, that the impugned FIR and the investigation which is sought to be carried out against the petitioners and the Officials/ Officers of the Jammu Municipal Corporation, Jammu, is absolutely illegal on the face of the decision of the learned Tribunal, by which the acts of omission and commission on the part of the petitioners were compounded. The investigation of the case carried out by the respondent No.2 is totally vitiated and is liable to be quashed. It is further stated that the petitioners have constructed the building in question for residential purpose, as is permissible under law and the same has not been completed to date. Therefore, the allegations levelled against the petitioners and the Officers/ Officials of the Jammu Municipal Corporation, Jammu, are illegal and contrary to the factual and legal position. The petitioners have further pleaded that the impugned FIR is being used as a tool to harass and blackmail them which is impermissible under law, as laid down by the Apex Court of the country. In the end, the petitioners have prayed that the FIR No. 02/2014, registered against them by the respondent No.2 under Section 5(1)(d) read with Section 5(2) of the Jammu & Kashmir Prevention of Corruption Act, Samvat 2006 and Section 120-B of the Ranbir Penal Code (RPC), be quashed.

04. Heard and considered.

05. The sum and substance of the argument of Mr Sethi, the learned senior counsel, representing the petitioners, is that since the violations made in the construction work have been compounded by the learned Tribunal, by an order dated 16th of May, 2013, therefore, the initiation of criminal proceedings against the petitioners is neither justified nor warranted, but is liable to be quashed.

06. Per Contra, Mr Moza, the learned Additional Advocate General, appearing on behalf of the respondents, has stated that the order of the learned Tribunal, whereby the violations have been compounded, has, in fact, indicted not only the petitioners, but also the Officials/ Officers of the Jammu Municipal Corporation, Jammu and, therefore, they cannot take shelter or refuge under its shade and cover.

07. In order to arrive at a just conclusion, the relevant excerpts of the order dated 16th of May, 2013, passed by the learned Tribunal, require to be enumerated below, verbatim et literatim and these read as under:

'The records available on the file of the respondent/ JMC show that their Khilafwarzi Inspector of the area concerned made a report to JMC on 11-08-2012 that the appellant alongwith his brother namely Sidharth Bhatia have started removing the earth to construct the basement and further that the appellants have not raised the partition walls, so the building seems to be put for commercial use and on this report, the respondent/ JMC issued a notice against the appellant as required u/s 7(1) of the COBO Act. The impugned notice issued to the appellant u/s 7(3) of the COBO Act on the same grounds as mentioned in preliminary notice issued u/s 7(1) of the COBO Act, but in their objections/ written arguments, the respondent/ JMC has also shown the violations of set backs as well as the height of the building which were not covered in the impugned notice. It is now well settled law that the respondent/ JMC cannot go beyond the scope of their notices, but in the instant case, the respondent/ JMC has committed the same illegality as pointed out earlier in a number of similar circumstances cases. On this solid illegality committed by the respondent/ JMC, the appeal of the appellant is liable to be accepted and impugned order needs to be quashed, is quite surprising to note that the appellant must has taken at least months together to complete three storeyed building, but it appears that the respondent/ JMC have never raised a finger regarding the violation of Building plan which is a mystery. It is strange enough to note here that whey the respondent/ JMC has not initiated any action against the appellant when he has made deviations of the sanctioned plan at ground floor? It appears that the field agency of the JMC was hand in glue/ in active connivance with appellant in coming up this complex of three-storeyed building. The JMC remained silent spectator when all the violations were taking place from ground floor to the 2nd floor and now, when the entire complex has come up on the ground, they have issued notices under the COBO Act. Such type of altitude is neither expected nor desirable from the respondent side, so in my opinion, the appellant hmself alone cannot be held responsible for the deviations made by him from the sanctioned plan. Be that as it may, since the appellant has admitted that he will not construct any basement and that the structure is meant for residential purposes only, so there is no violation of land use of the area prescribed in the Master Plan. No doubt, there is violation of set backs committed by the appellant, but in my opinion, the respondent/ JMC is equally responsible for this violation, as mentioned above. The authority cited by the advocate for the appellant reported as AIR 2005 SC in case titled Kewal Kumar Gupta vs J&K Special Tribunal and others, in support of his arguments is quite applicable to the facts and circumstances of the present case. The relevant part of the said authority is reproduced as under:

'……It is unnecessary for permitting demolition of the structure even if it be in contravention of the provisions of the Act or the zoning provisions in the previous Master Plan.'

In view of the discussion made hereinabove, in my opinion, the deviations made by the appellant from sanctioned plan are minor in nature, so the same can safely be regularized by way of compounding.

Accordingly, the undersigned while exercising powers as vested in me under Rule 11 of COBO Rules, 1998 hereby regularize the total deviations of 3916 sft @ Rs.20/- (Rupees Twenty Only) per sft by way of compounding. The appellants shall deposit the compounding fee with the respondent/ JMC within a period of two months from today failing which the appeal filed by the appellants shall be deemed to have been dismissed and the respondent/ JMC will be at liberty to remove the illegal structure as per their impugned order/ notice dated 17-12-2012. The status quo order/ stay order issued in this case by this Tribunal shall stand vacated. The records of the respondent/ JMC be returned alongwith copy of this order for follow up action.'

08. What gets revealed from the perusal of the order passed by the learned Tribunal, which has been cited above, is that the Officials/ Officers of the Jammu Municipal Corporation, Jammu, suppressed the material facts in the notices sent to the petitioners under Sections 7(1) and 7(3) of the COBO Act. It was during the course of filing the objections/ written arguments before the learned Tribunal that they projected and portrayed the violations of setbacks as well as the height of the building which were not covered under the impugned notices. The learned Tribunal, on the face of above, opined that it is now settled that the Jammu Municipal Corporation cannot go beyond the scope of their notices. It is also stipulated in the order that the Jammu Municipal Corporation has committed the illegality of the suppression of material facts in a number of cases and on the basis of the illegality committed by them, the appeal of the appellant is liable to be accepted and the impugned notices quashed.

09. The learned Tribunal appears to have given the petitioners the benefit of the illegality committed and perpetuated by the Jammu Municipal Corporation, Jammu. The learned Tribunal, has indicted the petitioners and other Officials/ Officers of the Jammu Municipal Corporation, Jammu, as can be seen from the order aforesaid with a naked eye, which does not need to be repeated and reiterated here. However, what cannot be lost sight of is that it is, perhaps, the order of the learned Tribunal, that has given the Vigilance Organization, Jammu, the teeth to register

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the FIR against the petitioners and other Officials/ Officers as the learned Tribunal, has pinpointed the illegalities committed by them. On the basis of the order aforesaid, the petitioners and other Officials/ Officers of the Jammu Municipal Corporation, Jammu, cannot take umbrage under the plea that the learned Tribunal has compounded the violations and, therefore, they should be allowed to go scot-free. The investigation, in a case like the present one, cannot be scuttled and truncated at the very threshold. The benefit sought to be derived by the petitioners from the order of the learned Tribunal, is misdirected. The present petition is grossly misconceived and does not merit any consideration. The law on the subject is that the Court has to ascertain whether the allegations made in the FIR do, or, do not, disclose the commission of offences attributed to the accused and, if it does so, then the investigation of the case cannot be aborted mid-way. 10. In view of the preceding analysis, the petition of the petitioners is found to be devoid of any merit. It being so, same entails dismissal and is, accordingly, dismissed with all connected MP(s). Interim directions, if any, in force, as on date, shall stand vacated.
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