High Court
Legal Reasoning
cwp-703.151 IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL WRIT PETITION NO.703 OF 2015WITHCRIMINAL APPLICATION NO.2064 OF 20171) Venkatrao S/o Mukundrao Nemaniwar, Age-67 years, Occu:Agril., R/o-Yelmapura, Kinwat, Tq-Kinwat, District-Nanded,2) Sow. Kalawatibai W/o Venkatrao Nemaniwar, Age-57 years, Occu:Household, R/o-As Above. ...PETITIONERS VERSUS 1) The State of Maharashtra, [The Department of Home (Urban), Urban Development, General Administration, Law, Government of Maharashtra, Mantralaya, Mumbai-32,2) The District Collector, Nanded, District-Nanded.3) The Kinwat Police Station, Kinwat, Dist-Nanded, Through the Police Inspector attached to that Police Station,4) Azhar Ali S/o Taher Ali, Age-50 years, Occu:Service, Working as Regional Officer in Kinwat Municipal Council, Kinwat, R/o-Kinwat, Dist-Nanded, ...RESPONDENTS
Legal Reasoning
cwp-703.152 ... Mr. Aditya A. Puranik Advocate for Petitioners. Ms. P.R. Bharaswadkar, A.P.P. for Respondent No.1, 2 and 3. Mr. B.A. Darak Advocate for Respondent Nos.4 in Criminal Writ Petition No.703 of 2015 and for Applicant in Criminal Application No.2064 of 2017 ... CORAM: SMT. VIBHA KANKANWADI AND SANJAY A. DESHMUKH, JJ. DATE : 6th MARCH, 2025 ORDER [PER SMT. VIBHA KANKANWADI, J.] :1.Present Petition has been filed for quashment of the FirstInformation Report (for short “the FIR”)vide Crime No.11 of2015 dated 7th May 2015 registered with Kinwat Police Station,District-Nanded for the offence punishable under Sections 51 and52 of the Maharashtra Regional Town Planning Act, 1966. 2.Heard learned Advocate Mr. Puranik for petitioner, learnedAPP Ms. Bharaswadkar for respondent Nos. 1, 2 and 3 andlearned Advocate Mr. Darak for respondent No.4. 3.Learned Advocate for the petitioners contends that thepetitioners purchased 1 hectare land from Survey No.3 situatedon Kinwat Mahur Road under registered registered sale deeddated 17th December 2007 and on 25th May 2011 an amount ofRs.5,02, 412/- came to be deposited towards stamp duty. Out of cwp-703.153the said 1 hectare land, 40 R land was purchased in the name ofpetitioner No.2, where as 60 R land was purchased in the nameof petitioner No.1. However, as petitioner No.2 wanted toconstruct a Mangal Karyalaya, additional area of 20 R land wastaken by petitioner No.2 out of the land purchased by petitionerNo.1 with his permission. On 15th November 2008, petitionerNo.2 submitted a map and all relevant documents to KinwatMunicipal Council with an application for permission. PetitionerNo.2 by letter dated 20th January 2009, informed the MunicipalCouncil, Kinwat that permission was not granted and within 60days nothing was informed in the matter of grant of permissionand therefore, taking that the deemed permission is granted, theconstruction of Kalawati Mangal Karyalaya was started andcompleted. It is contended that one Narayan MukundraoNemaniwar had given application to respondent No.2 fordemolition of Mangal Karyalaya constructed by petitioner No.2.In view of said application, respondent No.2 had called for thereport from respondent No.4 and even the matter was taken upto Mantralaya. The correspondence shows that Kalawati MangalKaryalaya was constructed, completed and in existence prior to26th January 2010. Thereafter petitioner No.2 made applicationseeking permission for further construction for providing parking cwp-703.154facility and the said permission was granted as per permissionletter dated 11th August 2014. Even the Municipal Council in itsGeneral Body Meeting resolved to grant permission to petitionerNo.2 to construct the said Mangal Karyalaya and the minutebook extract at Sr. No.265 of 11th June 2009 shows the same.4.Learned counsel for the petitioners has further contendedthat in the meanwhile petitioner No.1 came to be elected asCoucillor of Kinwat Municipal Council on 6th November 2012.During the period when construction of Mangal Karyalaya startedand completed, petitioner No.1 was not the Councillor of KinwatMunicipal Council. The ex-superintendent of Council, namelyBaburao Oddiwar, who was having grudge against petitionerNo.1, filed an application under Section 44(1)(e) and 44(3) ofthe Maharashtra Municipal Councils, Nagar Panchayats andIndustrial Township Act, for action against the petitioners,alleging that Mangal Karyalaya came to be constructed withoutpermission and the site was used for construction of MangalKaryalaya though the plot was purchased for industrial purpose.Respondent No.2 by Judgment and order dated 2nd February2015 allowed the said application and petitioner No.1 wasdisqualified being a Councillor of Kinwat Municipal Council for theremainder period and it was ordered that the action within one cwp-703.155month be taken under Section 51 and 52 of the MaharashtraRegional Town Planning Act. The appeal filed by the petitionersagainst the said order came to be dismissed. Against thedecision of the Hon’ble State Minister dismissing the appeal, thepetitioners filed Writ Petition No.4784 of 2015 before this Court,which is still pending. Under the said circumstance, the FIR cameto be lodged on behalf of the Municipal Corporation and thequashment of the same has been prayed by the petitioners inthis Petition. The Petition was pending for considerable time andno charge-sheet has been produced. In the meantime thepetitioners had made application for regularization of theconstruction. Petitioners had deposited the amount with theMunicipal Council that was charged for regularization. Thereuponthe order of regularization has been passed by the MunicipalCouncil, Kinwat on 27th March 2018. Under the saidcircumstance, now the learned counsel for the petitioners hassubmitted that the Petition be allowed as it would be unjust toask the petitioners to face the trial. 5.Learned Advocate for respondent No. 4 relies on theaffidavit filed on behalf of respondent No.4. It has been statedthat the petitioners construction is beyond permission and cwp-703.156without following due procedure of law, therefore, Sections 51and 52 of the M.R.T.P. Act have been attracted. 6.Learned Advocate for respondent No.4 now submits thatthe construction has been regularized by order dated 27th March2018 and the necessary amount has been deposited by thepetitioners.7.The very act of seeking regularization of the constructionimplicates that the petitioners accepted that there was violationof the rules and the permission that was granted forconstruction. However, since the construction has been nowregularized, which is certainly within the powers of MunicipalCouncil, it would be unjust to ask the petitioners to face the trial.The petitioners have paid an amount of Rs.2,26,820/- towardsthe regularization charges. 8.Another interesting part is, when the matter was heard fora while on 18th February 2025, it was observed by this Court thatthe investigating officer appears to have not bothered toapproach the Court for seeking leave to file the charge-sheet andit was not clear as to why he has not completed the investigation cwp-703.157and therefore, the learned APP was directed to call theinvestigating officer. Accordingly, today the investigating officer,Police Sub-Inspector of Kinwat Police Station, Mr. DineshShivajirao Yewale was present and he submits that this Court byorder dated 7th January 2016, had granted stay to the criminalproceedings in Crime No.11 of 2015. Accordingly, the theninvestigating officer had stopped the further investigation in thecrime. Thereafter for two times the stay was continued and thethen investigating officer was under bona fide impression thatthe stay has been continued further. It was not noticed thatthere was discontinuation of the stay and therefore, he has failedto complete the investigation. This officer states that he joinedthe concerned police station on 2nd March 2024 and theinvestigation of the crime was handed over to him in the monthof July 2024. He has tendered unconditional apology for notcompleting the investigation. 9.Thus, the above position clarifies, therefore, that there isabsolutely no investigation in the matter and charge-sheet is notfiled. Therefore, after such a long time it would be certainlyinappropriate to ask the petitioners to face the trial even if theinvestigating officer is now directed to complete the cwp-703.158investigation. We have considered all the orders previouslypassed in this matter. Though by ad-interim order dated 7thJanuary 2016, stay to the criminal proceedings was granted, andthe same was continued for 2 to 3 dated, but thereafter it hasnot been continued and therefore, there was no reason for theinvestigating officer not to carry out the investigation. Certainlyafter 7th July 2016, ad-interim relief has not been continued atall. We also wonder that when such old crime was still underinvestigation and charge-sheet was not filed, how it had missedfrom the inspection that is supposed to be carried out by the SubDivisional Police Officer of the division and Superintendent ofPolice of the District. We deprecate such practice of keeping thecrimes undetected or under investigation for unnecessary longtime and not filing of the charge-sheet. Rather, if we considerthe framework of the new Bhartiya Nagarik Suraksha Sanhita, itis now made mandatory that the charge-sheet should be filedwithin a particular period. Hope the police machinery will cope-up with the requirement of the law in future.10.By keeping the matter pending for considerable long timeand then utilizing the machinery and getting the regularization ofthe construction done, the petitioners have gained and therefore, cwp-703.159while quashing the FIR, we are imposing the cost on thepetitioners. With the above observations, we proceed to passfollowing order:- O R D E R(I) The Writ Petition stands allowed.(II)The First Information Report vide Crime No.11 of 2015 dated 7th May 2015, registered withKinwat Police Station, District-Nanded for theoffence punishable under Sections 51 and 52 of theMaharashtra Regional Town Planning Act, 1966stands quashed and set aside as against petitionerNos. 1 and 2 i.e. 1) Venkatrao S/o MukundraoNemaniwar and 2) Sow. Kalawatibai w/o VenkatraoNemaniwar.(III)The petitioners to deposit an amount ofRs.25,000/- (Rupees Fifty Thousand) with theRegistry i.e. the Committee consisting of learnedRegistrar (Administration) of the High Court, Bench cwp-703.1510at Aurangabad and the Medical Officer of the HighCourt Medical Dispensary, Aurangabad on orbefore 28th March 2025.(IV) Criminal Application No.2064 of 2017 standsdisposed of.(V)Place the matter for compliance on 1st April2025. [SANJAY A. DESHMUKH] [SMT. VIBHA KANKANWADI] JUDGE JUDGE asb/MAR25