BENCH AT JAIPUR v. Jaipur Development Authority, Through Enforcement Officer

Judgment

1. By filing instant criminal misc. petitioner under section 482 CrPC, the accused petitioner has prayed to quash the criminal proceedings qua him pending in the Court of learned Addl. Chief Metropolitan Magistrate No.2 (Special Court), Jaipur Development Authority, Jaipur Metropolitan-II, Jaipur, bearing No.26/2016 (for short 'the learned trial court'), for the offence punishable under section 72 of the Jaipur Development Authority, 1982 (for short 'the Act of 1982') qua him.

2. Brief facts of the case are that the Enforcement Officer, Zone 13, Jaipur Development Authority, Jaipur filed a [2025:RJ-JP:5945] (2 of 20) [CRLMP-3796/2022] complaint (Ex.P1) in the Court of learned ACJM No.2 (Special Court), JDA for offence punishable under section 72 of the Jaipur Development Authority Act, 1982 against the petitioner in the capacity of Chairman, Indian Medical Trust and one Mr. K.P Singh, the then Registrar, NIMS University, wherein it was alleged that during inspection conducted by Tehsildar, Zone 13, Ameen Zone 13 and Enforcement Officer Zone-13 on

20.11.2015, it was found that the petitioner and the other accused has encroached upon the land belonging to the JDA bearing Khasra No. 528 & 531 situated in Village Jugalpura, Tehsil Amer, Delhi Road, Jaipur. Thereafter, the cognizance was taken against the accused petitioner under section 72 of the Act of 1982.

3. Counsel appearing for the accused petitioner argued and submitted that prior to filing the above complaint

(Ex.P1) against the petitioner and Mr. K.P. Singh, one notice dated 20.11.2015 was sent to Mrs. Rajeshwari Devi w/o Late Shri Hotam Singh Tomar, who is the mother of the petitioner, in which the JDA directed Mrs. Rajeshwari Devi to remove the construction from the encroached land within a period of three days. In the said notice, it was informed to the addressee that encroachment has been done on the land of the JDA by constructing G+3 storied building there. Counsel submitted that the said notice was non-est in the eye of law as Mrs. Rajeshwari Devi had expired way back on [2025:RJ-JP:5945] (3 of 20) [CRLMP-3796/2022]

23.12.2000. In these circumstances the notice was ex-facie, illegal and invalid. Counsel also submitted that the notice was given in the name of Smt. Rajeshwari Devi and without any notice to the petitioner, he has been wrongly made as an accused in the present matter. Counsel further submitted that the present proceedings are abuse of process of law as it is clear by the NIMS University Rajasthan, Jaipur Act, 2008 (for short 'the Act of 2008') that no part of JDA land has been encroached and therefore no prosecution ex-facie against law made by legislature is maintainable. Counsel also submitted that the proceedings are further not maintainable for the reason that Indian Medical Trust does not control the land in question rather the land is vested to NIMS University. Indian Medical Trust is merely a sponsoring body of the NIMS University. Counsel also submitted that even otherwise Indian Medical Trust has not been made a party to the proceedings in absence of which no vicarious liability can be imposed upon the petitioner and therefore proceedings against him are liable to be set aside on this ground alone. Counsel further submitted that the complaint (Annex.P1) had been filed without due authorization by the respondent- JDA, the authorization relied upon at this point is improper and does not entitle the officer to file the complaint. Counsel submitted that the notice is given in the name of a [2025:RJ-JP:5945] (4 of 20) [CRLMP-3796/2022] dead person and therefore, it is non-est in the eye of law. Counsel also submitted that the petitioner, being the Chairman of the Indian Medical Trust, cannot be prosecuted without the Trust being made a party in the criminal dispute. It is an established principle of law that for imputing any liability upon the employee of any artificial body, be it a company or a trust, the artificial body itself has to be first made a party. Counsel also submitted that the petitioner who is the Chairman of the Indian Medical Trust cannot be prosecuted vicariously for the criminal actions on the part of the University. After the enactment of the Act of 2008, it is more than clear that the Indian Medical Trust will have no control over the affairs of the University. Counsel submitted that the judicial process is a solemn proceeding which cannot be allowed to be converted into an instrument of oppression or harassment. It is an established principle of law that criminal prosecution cannot be allowed to proceed when no prima facie case is made out.

4. Counsel appearing for the respondent JDA argued and submitted in the reply that there is an encroachment on the JDA land in question and the petitioner has encroached upon the same. Counsel submitted that the accused petitioner being Chairman of the Indian Medical Trust, is certainly responsible for the said encroachment upon the JDA land. Counsel also submitted that when the site inspection [2025:RJ-JP:5945] (5 of 20) [CRLMP-3796/2022] was done by the Enforcement Officer, it was found that there is an encroachment upon the JDA land and accordingly the notice was sent but subsequently when it has come into the notice of the JDA that Smt. Rajeshwari Devi has expired in the year 2000 and the accused petitioner was the Chairman of the Indian Medical Trust, the complaint has rightly been filed against the accused petitioner. Counsel further submitted that it was the petitioner and Mr. K.P. Singh who are responsible for the encroachment made on the JDA land, therefore, the complaint has rightly been filed under section 72 of the Act of 1982 wherein the learned Magistrate took cognizance and thereafter fixed the matter for pre-charge evidence but he failed to appear before the learned Magistrate. Thereafter the petition has been filed by the petitioner after more than six and half years years. It is also submitted that the petitioner is the Chairman of Indian Medical Trust and the property of the Indian Medical Trust vests in the NIMS University after the formation of the NIMS University. Counsel also submitted that the encroachment upon the JDA land has been made, therefore, the Enforcement Officer has rightly filed the complaint against the petitioner and Shri K.P. Singh who being responsible for the encroachment. Counsel further submitted that the complaint has been filed by the Enforcement Officer, Zone-13, JDA in as [2025:RJ-JP:5945] (6 of 20) [CRLMP-3796/2022] much as that vide one Notification dt. 25.8.1990, JDA authorized the Enforcement Officer to file the complaint on behalf of the JDA. Subsequently thereafter, vide another order issued on 6.11.2017, it has been clarified that in place Dy. Director (Enforcement), Dy. Controller (Enforcement) be read. Counsel also submitted that the complaint has been filed by the complainant- Enforcement Officer as per the orders of the Dy. Controller (Enforcement). Counsel further submitted that during the course of site inspection, the concerned Enforcement Officer has already made it clear that for the encroachment made on the JDA land, the petitioner is also responsible. Thus, no interference is required to be made in the present matter.

5. Considered the submissions advanced by the counsel appearing for the accused petitioner and the counsel appearing for the JDA and also gone through the entire material made available to the Court.

6. The facts relevant for the purpose of decision of the present criminal misc. petition are that the Act of 2008 which received the assent of the Governor of Rajasthan on 29th day of March, 2008 came into force w.e.f. 19th January, 2008. As per definition clause 2(u) of the Act of 2008, there is a 'Sponsoring Body' which means the Indian Medical Trust, having Registration No.6, Jaipur, 2000 dated 26.8.2000, registered under the Rajasthan Public Trusts Act, 1959 [2025:RJ-JP:5945] (7 of 20) [CRLMP-3796/2022] (Rajasthan Act No.42 of 1959). Section 2(za) of the Act of 2008 defines the 'University' which means the Nims University Rajasthan, Jaipur. Section 3(2) of the Act of 2008 provides that the movable and immovable property specified in the Schedule I shall be vested in the University and the Sponsoring Body shall, immediately after commencement of this Act, take steps for such vesting. In view of the aforesaid provisions of the Act of 2008 and the facts on record, the Indian Medical Trust which is a Sponsoring Body handed over the movable and immovable property specified in Schedule I to the NIMS University. The Officers of the University have been defined in section 11 of the Act of 2008 which includes the Chancellor, the Vice-chancellor, the Pro-Vice-chancellor, the Provost, the Proctor, the Deans of Faculties, the Registrar, the Chief Finance and Accounts Officer and such other officers as may be declared by the Statutes to be the officers of the University. In view of the provisions of the aforesaid Act, it is very much clear that after enactment of the Act of 2008 and vesting of the movable and immovable property with the University and the activity undertaken by the University thereafter it is the University which could be held responsible and liable for all such alleged activities in accordance with the procedure given under the law. [2025:RJ-JP:5945] (8 of 20) [CRLMP-3796/2022]

7. The other relevant facts are that on 20.11.2015 the Jaipur Development Authority issued a notice under section 72 of the Act of 1982 to Mrs. Rajeshwari Devi w/o Late Shri Hotam Singh Tomar, in the capacity of Officer of the NIMS University as regards the encroachment over the JDA land categorised as 'Gair Mumkin Nalah/ pasture land' measuring 110 x 100 ft. by constructing G+3 storied building.

8. The JDA has stated in its memo of reply that when it came to know that Smt. Rajeshwari Devi to whom the notice under section 72 of the Act of 1982 was issued on

20.11.2015, expired long back, the Enforcement Officer of the JDA, Zone-13 filed a complaint under section 72 of the Act of 1982 against the petitioner being the Chairman of the Indian Medical Trust and one Mr. K.P. Singh in the capacity of the Registrar of the NIMS University with the allegation of encroachment over the JDA land, as has been mentioned in the notice dated 20.11.2015. The notice dated 20.11.2015 is said to have been issued on the basis of the inspection report made by the JDA Officers.

9. The first and foremost submission of the counsel for the petitioner is that since after enactment of the Act of 2008 the Indian Medical Trust i.e. the 'Sponsoring Body' as defined under section 2(u) of the Act of 2008 has no control over the day to day functioning of the NIMS University as all the activities are conducted by the Officers of the NIMS [2025:RJ-JP:5945] (9 of 20) [CRLMP-3796/2022] University, all the movable and immovable properties, as mentioned in Schedule I, have already been vested in the NIMS University and if any construction is made by the University, that is under the Control of the Officers of the NIMS University and not the 'Sponsoring Body' i.e. the Indian Medical Trust.

10. On perusal of the provisions of the Act of 2008, this Court finds that the Act of 2008 came into force w.e.f. 19th January, 2008 after assent of the Governor of Rajasthan on 29th day of March, 2008. As per section 3 of the Act of 2008, the movable and immovable property specified in the Schedule I vests in the University. The powers and functions of the University have been given in section 5 of the Act of

2008. The notice dated 20.11.2015 under section 72 of the Act of 1982 has been issued by the JDA in the name of Mrs. Rajeshwari Devi, treating her to be the Officer of the University with the allegations that the University has encroached upon the JDA land by constructing G+3 storied building. Once on the inspection made by the JDA Officers it has come out that the encroachment has been made by the NIMS University then only the Officers of the University could be held liable for such encroachment and not the person having concerned with the 'Sponsoring Body' i.e. the Indian Medical Trust. However, the JDA has filed the complaint under section 72 of the Act of 1982 against the petitioner being the [2025:RJ-JP:5945] (10 of 20) [CRLMP-3796/2022] Chairman of the Indian Medical Trust (Sponsoring Body) and also against one Mr. K.P. Singh as Registrar of the NIMS University. After enactment of the Act of 2008 only the Officers of the University along-with the University can be held responsible / accountable /liable for any activity of the University and not the person concerned with the Indian Medical Trust i.e. the 'Sponsoring Body'.

11. The another submission made by the counsel for the accused petitioner is that the complaint has been filed against the accused petitioner and one Mr. K.P. Singh without incorporating either the Indian Medical Trust or the NIMS University as a party and in absence of impleading the Corporate Institution i.e. 'The Indian Medical Trust or NIMS University' as a party to the complaint. No vicarious liability can be imposed upon the petitioner and the petitioner cannot be prosecuted.

12. Section 74 of the Act of 1982 says that if the person committing an offence under this Act is a company, every person, who at the time the offence was committed was incharge of, and was responsible to the company for the conduct of the business of the company as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded and punished accordingly.

13. Section 141 of the Negotiable Instruments Act is pari materia with section 74 of the Act of 1982. The Hon'ble [2025:RJ-JP:5945] (11 of 20) [CRLMP-3796/2022] Apex Court in the case of Aneeta Hada v. Godfather Travels & Tours Private Limited & Other connected matters, reported ion (2012) 5 SCC 661, has observed as under:- "59. In view of our aforesaid analysis, we arrive at the irresistible conclusion that for maintaining the prosecution under Section 141 of the Act, arraigning of a company as an accused is imperative. The other categories of offenders can only be brought in the drag-net on the touchstone of vicarious liability as the same has been stipulated in the provision itself. We say so on the basis of the ratio laid down in C.V. Parekh [(1970) 3 SCC 491 : 1971 SCC (Cri) 97] which is a three- Judge Bench decision. Thus, the view expressed in Sheoratan Agarwal [(1984) 4 SCC 352 : 1984 SCC (Cri) 620] does not correctly lay down the law and, accordingly, is hereby overruled. The decision in Anil Hada [(2000) 1 SCC 1 : 2001 SCC (Cri) 174] is overruled with the qualifier as stated in para 51. The decision in Modi Distillery [(1987) 3 SCC 684 : 1987 SCC (Cri) 632] has to be treated to be restricted to its own facts as has been explained by us hereinabove." In the case of Hindustan Unilever Limited Vs. State of Madhya Pradesh, reported in (2020) 10 SCC 751, the Hon'ble Apex Court has observed as under:- "22. Section 17 of the 1954 Act reads as under: [2025:RJ-JP:5945] (12 of 20) [CRLMP-3796/2022] “17. Offences by companies.—(1) Where an offence under this Act has been committed by a company— (a)(i) the person, if any, who has been nominated under sub-section (2) to be in charge of, and responsible to, the company for the conduct of the business of the company (hereinafter in this section referred to as the person responsible), or (ii) where no person has been so nominated, every person who at the time the offence was committed was in charge of, and was responsible to, the company for the conduct of the business of the company; and (b) the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly: Provided that nothing contained in this sub- section shall render any such person liable to any punishment provided in this Act if he proves that the offence was committed without his knowledge and that he exercised all due diligence to prevent the commission of such offence.” (emphasis supplied)

23. Clause (a) of sub-section (1) of Section 17 of the Act makes the person nominated to be in charge of and responsible to the company for the conduct of business and the company shall be guilty of the offences under clause (b) of sub- section (1) of Section 17 of the Act. Therefore, there is no material distinction between Section [2025:RJ-JP:5945] (13 of 20) [CRLMP-3796/2022] 141 of the NI Act and Section 17 of the Act which makes the company as well as the nominated person to be held guilty of the offences and/or liable to be proceeded and punished accordingly. Clauses (a) and (b) are not in the alternative but conjoint. Therefore, in the absence of the company, the nominated person cannot be convicted or vice versa. Since the Company was not convicted by the trial court, we find that the finding of the High Court to revisit the judgment will be unfair to the appellant-nominated person who has been facing trial for more than last 30 years. Therefore, the order of remand to the trial court to fill up the lacuna is not a fair option exercised by the High Court as the failure of the trial court to convict the Company renders the entire conviction of the nominated person as unsustainable." In the case of P. Pramila & Ors. Vs. State of Karnataka & Anr., reported in (2015) 17 SCC 651, the Hon'ble Apex Court has observed as under:- "4. During the course of hearing, the learned counsel for the appellants invited our attention to the fact that cognizance of an offence could be taken only by the Board or an officer authorised by the Board in terms of Section 43 of the Air Act. Section 43 aforementioned was the primary basis of the challenge raised before us. The same is being reproduced hereunder: “43.Cognizance of offences.—(1) No court shall take cognizance of any offence [2025:RJ-JP:5945] (14 of 20) [CRLMP-3796/2022] under this Act except on a complaint made by — (a) a Board or any officer authorised in this behalf by it; or (b) any person who has given notice of not less than sixty days, in the manner prescribed, of the alleged offence and of his intention to make a complaint to the Board or officer authorised as aforesaid, and no court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the First Class shall try any offence punishable under this Act. (2) Where a complaint has been made under clause (b) of sub-section (1), the Board shall, on demand by such person, make available the relevant reports in its possession to that person: Provided that the Board may refuse to make any such report available to such person if the same is, in its opinion, against the public interest.”

5. Our attention has been pointedly invited to sub- section (1) of Section 43 of the Air Act. Having perused the same, there cannot be any doubt, that when the authorities decided to initiate proceedings under the provisions of the Air Act, the complaint could have been made either by the Board or by an officer authorised by the Board. The question which has to be adjudicated upon (as has been raised by the appellants), was whether, the complaint in furtherance of which CCs Nos. 546-49 of 2006 had [2025:RJ-JP:5945] (15 of 20) [CRLMP-3796/2022] been filed by the Board or an officer authorised by the Board. To be valid, in terms of the mandate of Section 43(1) of the Air Act, it ought to be filed either by the Board or by an officer authorised by the Board.

7. According to the learned counsel for the respondents, proceedings came to be initiated by an order dated 4-4-2006 passed by the Chairman of the Karnataka State Pollution Control Board. Relevant extract of the above order is reproduced below: “In view of the above, I do hereby authorise the Regional Officer, Karwar to initiate criminal action under Section 37 of the Air (Prevention and Control of Pollution) Act, 1981 by filing criminal case in the competent court against 17 occupiers of the iron ore stackyards located in and around the Karwar, Ankola and Jolda Taluks of Uttara Kannada District as per the list enclosed as Annexure 1.” Having perused the aforesaid communication it emerges that the Chairman of the Board authorised the Regional Office, Karwar to initiate criminal action under Section 37 of the Air Act, by filing criminal cases in courts having jurisdiction to deal with them, against 17 owners of iron ore stackyards, located in and around the Karwar, Ankola and Jolda Taluks of Uttara Kannada District. It is not possible to accept the contention of the respondents that initiation of the proceedings on the basis of the above order dated 4-4-2006 can be treated as compliance with the mandate [2025:RJ-JP:5945] (16 of 20) [CRLMP-3796/2022] contained in Section 43(1) of the Air Act, because the same has reference to a complaint made by the “Board or any officer authorised in this behalf by it”."

14. In view of the provisions of the Act of 1982 and the observations of the Hon'ble Apex, as referred to above, the complaint against the accused petitioner without implicating/ impleading the NIMS University and so also the Indian Medical Trust as a party, the complaint only against the accused petitioner being the Chairman of the Indian Medical Trust i.e. the 'Sponsoring Body' under the Act of 2009 for encroachments alleged to have been made by the NIMS University, is not maintainable.

15. The counsel appearing for the accused petitioner has also raised an issue and admitted by the respondent- JDA in its reply that the initially the notice is required to be issued against the encroacher on the basis of the inspection report but the same has been issued against a dead person and therefore, the complaint based on such notice is not maintainable. It is not in dispute that on the date of issuance of the notice dated 20.11.2015 under section 72 of the Act of 1982, Mrs. Rajeshwari Devi died long back and the respondent -JDA did not take care to issue notice to the concerned authority of the University being a Corporate Institution, as required under section 72 of the Act of 1982. [2025:RJ-JP:5945] (17 of 20) [CRLMP-3796/2022] The complaint has been filed against the petitioner and one Mr. K.P. Singh without any such notice.

16. The High Court of Bombay in Raniben Khimji Patel vs. Assistant Commissioner of Income Tax and Others, reported in 2022 SCC OnLine Bom 342 has observed as under:- "7. There are many other judgments including one of the Gujarat High Court in the case of Bhupendra Bhikhalal Desai (Decd.) v. ITO (2021) 17 ITR-OL 604 (Guj) ; (2021) 130 taxmann.com 196 (Guj) where also the court held that the notice issued to a dead person is not valid. This judgment of the Gujarat High Court has been upheld by the hon'ble apex court in ITO v. Bhupendra Bhikhalal Desai (2021) 131 taxmann.com 40 (SC).

8. In the circumstances, we hereby grant prayer clause (i) which reads as under : "(i) that this hon'ble court may be pleased to issue a writ of certiorari or a writ in the nature of certiorari or any other appropriate writ, order or direction, calling for the records of the petitioner's case and after going into the legality and propriety thereof, to quash and set aside the said notice under section 148 of the Act dated June 30, 2021 ('exhibit I')."

9. Since we have quashed the notice itself as not maintainable having been issued to a dead person, we are not considering the other aspect as to whether the respondent was correct in issuing [2025:RJ-JP:5945] (18 of 20) [CRLMP-3796/2022] notice without following the mandatory provisions of law."

17. The complaint (Annex.P1) based on a notice dated

20.11.2015 issued against a dead person is therefore, not sustainable.

18. Counsel appearing for the accused petitioner has also raised an issue that the Enforcement Officer of the JDA Zone-13 is not having any authority to file the complaint. For consideration of this issue the provision of section 75 of the Act of 1982 are required to be quoted, which is quoted as under:- "75. Cognizance of offences- (1) No court shall take cognizance of any offence punishable under this Act or any rule or regulation or order made thereunder except Upon a complaint in writing of the facts constituting such offence made by the Authority, Or by a person expressly authorized in this behalf by the Authority: Provided that any person, whose right to enjoyment of his own property is adversely affected by any unauthorized development as indicated in sub-section (1) of section 31, may also file a complaint in the like manner against such person or persons who may have undertaken the said unautnorized development: Provided further that the Authority shall also be given due notice of such proceedings and if the Authority removes the cause for action within a reasonable period, the proceedings in the Court [2025:RJ-JP:5945] (19 of 20) [CRLMP-3796/2022] shail abate, without prejudice to any cther action or proceedings that the Authority has initiated or may initiate thereafter. (2) No court inferior to that of a Chief Judicial Magistrate shall try any offence punishable under this Act."

19. The JDA has issued an order dated 25.08.1990 which authorizes the Enforcement Officer to file a complaint under section 72 of the Act of 1982, however, the Enforcement Officer has to seek prior approval for filing the complaint from the Secretary, JDA, the Director Enforcement/ Dy. Director Enforcement. The respondent- JDA has not placed on record any material to show that the Enforcement Officer before filing the impugned complaint has sought prior approval from the Authorities, is required as per the order dated 25.08.1990.

20. In view of the discussions made above, this Court deems just and proper to exercise the inherent jurisdiction vested in it under the provisions of section 482 of the Code of Criminal Procedure, 1973.

21. Accordingly, this criminal misc. petition filed by the accused petitioner is allowed. The complaint (Annex.P1) filed under section 72 of the Act of 1982 qua the present petitioner and so also the consequential proceedings, are quashed and set aside.

22. Consequences to follow. [2025:RJ-JP:5945] (20 of 20) [CRLMP-3796/2022]

23. This Court would like to make it clear that neither this order nor any observations or findings given by this Court, will in any manner affect any proceedings as regards the allegations of encroachment made by the NIMS University over the JDA land.

24. In view of the order passed in the main petition, the stay application and pending application/s, if any, also stand disposed of. (GANESH RAM MEENA),J Sharma NK/Dy. Registrar