| SooperKanoon Citation | sooperkanoon.com/1176596 |
| Court | Mumbai Nagpur High Court |
| Decided On | Jun-26-2015 |
| Case Number | Criminal Application [APL] Nos. 469 of 2011, 542 of 2011, 507 of 2011, 508 of 2011, 509 of 2011, 510 of 2011, 511 of 2011 & 512 of 2011 |
| Judge | A.B. CHAUDHARI & P.N. DESHMUKH |
| Appellant | Kishor and Others |
| Respondent | The State of Maharashtra and Another |
Oral Judgment [Per Court]:
1. Jawaharlal Darda Education Society, Yavatmal, is a registered Society/Public Trust running educational institutions. Shri Kishor Sureshchandra Darda is the Secretary of the said society. Shri Prakash Dhanraj Chopda is the President of the society. Shri Vijay Jawaharlal Darda, the ex-President of the society and a Sitting Member of the Parliament, is now the Trustee of the Trust. Shri Rajendra Jawaharlal Darda is the Vice President of the society who was also Cabinet Minster of the State Government in the last government. Devendra s/o Vijay Darda and Rushi s/o Rajendra Darda, the sons are also the trustees of the said trust along with Kirti Dhanraj Gandhi. Ashok Shankarrao Chauhan was the then Chief Minister of the State of Maharashtra. For brevity, the criminal applications filed by them, which are being disposed of, by this common judgment, are specified as under:-
2. Criminal Application (APL) No.469/2011 is filed by
Kishor s/o Sureshchandra Darda:-
Respondent no.2 - Digamber Haribhau Pajgade resident of Yavatmal filed a complaint under various Sections i.e.120-B/34, 420/34, 468/34, 447/34, 474/34, 466/34 and 166/34 of Indian Penal Code in the Court of Chief Judicial Magistrate, Yavatmal, which was registered as Regular Criminal Case No.406/2011 and in which in all 18 accused were named including the above persons. The learned Magistrate, by making impugned order, rejected the request for issuance of direction under Section 156(3) of the Code of Criminal Procedure (âCodeâ?) against accused no.11 Joseph Imanuil and Shri Prithviraj Chavan, the then Chief Minister but directed the investigation against others i.e. 01 to 10 and 12 to 17 arrayed as accused in the said complaint by his order dated 25.8.2011. It is that order, which is under challenge, in these various applications. Since the order is one and though the applicants are different with different criminal applications filed in this Court, they were taken up together for final disposal, particularlybecause, they have been pending since the year 2011 in this Court with interim orders operating therein.
ARGUMENTS:
3. Criminal Application (APL) No.542/2011 is filed by Ashok Shankarrao Chavan:-
Shri S.V. Manohar, the learned Advocate for the applicant in this case, made the following submissions:-
[i] In the complaint that was filed by respondent no.2 before the Magistrate, the only allegation against the applicant, who was the Ex-Chief Minister of the State of Maharashtra is that, acting as a Chief Minister, having portfolio of Urban Development Department, he made orders on 7.10.2009 and 23.06.2010, etc., for regularization, relaxation etc., in respect of alleged encroachments made by the Jawaharlal Darda Trust without any authority or in violation of the Rules and Regulations and recommendations made by the subordinate officers and in contravention to the wishes of the plot holders, who have their houses in the colony. He submitted that as a Head of the Department of the Urban Development and Minister thereof, he has had an authority and power to make the order of regularization and accordingly in exercise of that power he made those orders of regularization which was his function and duty, but the same cannot be the subject matter of a criminal case.
[ii] The orders made by the applicant, the then Chief Minister, for regularization of the alleged encroachments in the open spaces in the colony of the Housing Society by constructing the school have not been declared to be illegal or invalid or without any authority by any Competent Court of law or the authority and on the contrary even now those orders stand as they are and, therefore, there was no cause of action for setting the criminal law in motion at the instance of respondent no.2, who is busy body and a court-bird and he is having habit of filing cases after cases against many persons with ill-motives. At any rate, till the time the orders made by the applicant in the matter of regularization are not declared illegal or set aside by the Competent Court, no cause of action could be said to have arisen for filing the criminal complaint.
[iii] Reading of the complaint filed by respondent no.2 and so also the documents on record of these cases clearly reveal that the dispute raised by respondent no.2 is nothing but a dispute of a civil nature as to whether the alleged encroachments were rightly regularized or not, then there is nothing to give rise to the cause of action for initiating criminal action and that is nothing but an abuse of process of law which must be interfered with in exercise of inherent powers of this Court.
[iv] A civil dispute cannot be brought before the Criminal Court to give way to personal vendetta of respondent no.2 against the members of Darda family almost all whom have been joined as accused persons to the complaint by respondent no.2 which is clearly malicious.
He cited the following decision:-
2015(4) Scale 120 : Mrs. Priyanka Srivastava and another Vs. State of U.P. and others.
[v] Section 1 of the Judicial Officers Protection Act, 1850 provides for a clear protection from being prosecuted and that is another reason why the complaint should not have been entertained by the learned Trial Judge and ought to have been thrown out at the threshold.
[vi] Respondent no.2 is neither a Member of the Housing Colony in respect of which the grievance is being made nor has has a house in the Colony and therefore, he has no locus standi to maintain the complaint before the Magistrate. Admittedly, he does not claim to have been cheated by anybody and, therefore, he is nothing but a rank-stranger filing a criminal case for his self satisfaction. He further relied upon the following decisions :
[a] (2009) 8 SCC 751 [Para 21] [Mohammed Ibrahim and others Vs. State of Bihar and another];
[b] (2011) (7) SCC 59 [Joseph Salvaraj A. Vs. State of Gujarat and others]; and
[c] 2015 Cr.L.J. : 267 [para 19] [ Rajib Ranjan and Ors. Vs. R. Vijaykumar].
[vii] Learned Advocate Shri Manohar then submitted that the applicant is not obliged to disclose his case or the defence or the case in rebuttal either before the Magistrate or before this Court and, therefore, he cannot be asked to explain the background or the facts available for making the orders of regularization in respect of which allegations against him have been made in the complaint and, therefore, no question can be asked to the applicant in that context. Finally, Shri Manohar, the learned counsel, prayed for dismissal of the complaint so also quashing of order passed by the Magistrate by allowing the instant application.
4. Criminal Application (APL) No.469/2011 filed by Kishor son of Sureshchandra Darda:-
Shri S. P. Dharmadhikari, the learned Senior Advocate, appeared for the applicant - Kishor Sureshchandra Darda and made the following submissions:-
[i] Respondent no.2 along with one Pramod Ajmire had filed Writ Petition No.2757/2010 in relation to the same subject matter namely the orders passed for regularization of the constructions made by the Trust on the alleged open spaces in the housing colony. The prayer for treating the same as Public Interest Litigation was rejected by the learned Senior Judge of this Bench and, therefore, respondent no.2 filed another Writ Petition again challenged the same order of regularization and also order refusing to treat the petition as Public Interest Litigation. The said Civil Writ Petitions have not been yet decided and the orders of regularization have not been found to be illegal or in violation of the law as claimed by respondent no.2 in his complaint and, therefore, the criminal complaint filed by him is clearly premature and malafide.
[ii] It can thus be seen that a civil dispute is being sought to be converted into criminal action by respondent no.2 for satisfaction of his personal goal and, at any rate, no cognizable offence is at all disclosed from the reading of the complaint against the present applicant so also others. A Criminal Contempt Petition against respondent no.2 was filed by Shri Vijay Jawaharlal Darda in this Court vide Contempt Petition No.1/2011 which was admitted on 16.8.2011. After 12 days thereafter respondent no.2 filed the above noted Writ Petition No.3901/2011 in this Court which clearly shows malafides on his part to file the cases after cases by way of counter blasts.
[iii] He then contended that one Pramod Ajmire had filed Writ Petition No.3599/2002 in the subject matter of the petition and the said petition was disposed of by this Court with an order against the petitioner.
[iv] A bare reading of the impugned order passed by the Magistrate does not at all show that he has applied his mind which is sine qua non for issuance of any direction under Section 156 (3) of the Code of Criminal Procedure. The impugned order does not show any discussion about the role of any of the accused persons or the applicants in these applications before issuance of the order of direction or investigation. The complaint does not show nor documents have been filed to show that respondent no.2 had lodged any report under Section 154(1) with the Police Station or had followed the procedure prescribed by Section 154 (3) of the Code of Criminal Procedure. The Magistrate had no jurisdiction to entertain any complaint in the absence thereof. The Magistrate has not even shown as to which offences are made out, prima facie, in order to direct any investigation before making impugned order nor there is any specific mention against any person. The complaint contains Section 120-B of the Indian Penal Code that is the conspiracy. This shows the manner in which the complaint was filed and the cognizance was taken by the Magistrate by issuing direction under Section 156(3) of the Code of Criminal Procedure.
5. Criminal Application (APL) Nos.507, 508, 509, 510, 511 and 512 all of 2011:-
Shri F.T. Mirza for all the applicants adopted the arguments made by the learned counsel Shri S.V. Manohar and Shri S.P. Dharmadhikari, the learned Senior Counsel and submitted that he does not want to add anything more in his argument.
6. [I] Per contra, respondent no.2 in person â“ Shri Digambar s/o Haribhau Pajgade vehemently submitted inviting our attention to the entire complaint. He submitted that he has locus standi to file a complaint before the Magistrate because in the first place he is having power of attorney of five plot owners of the Housing Colony concerned and that power of attorney was filed before the Magistrate. He, then submitted that he himself also has locus standi because all the offences alleged against these applicants are serious and cognizable offences and in which sentence of more than three years is provided. The offences committed by the applicants, according to him, directly relate to the injury to the public at large and to as many as 200 plot holders in the housing colony. It is submitted that Writ Petition No.3559/2002 was filed by One Pramod Ajmire and, therefore, the order made in that petition is not binding on him. At any rate, there was no adverse order in Writ Petition No.3559/2002 which could act as any obstruction in filing the criminal case in question. Respondent no.2 in person then submitted that Shri Vijay Jawaharlal Darda, the Member of Parliament in Rajya Sabha has been found guilty of misappropriation of amount of Rs. Twenty five lakhs in respect of supply of computers to the institution of his family members, namely Jawaharlal Darda Education Trust. The writ petition filed by him before the Bombay High Court to challenge the finding about misuse or misappropriation of Rs. Twenty five lakhs was dismissed by the Bombay High Court which order was confirmed by the Supreme Court. He submitted that Shri Vijay Darda, the Member of Parliament, still has not paid back the said huge amount with interest to the tune of more than a crore to the Government of India which is nothing but cheating and misappropriation of the public money by a public servant. It is further submitted that the money has not been paid back to the Government of India since 2003 i.e. over a period of 12 years and the Government of India is also not taking action in the matter for recovery with interest.
[ii] The respondent no.2 in person then submitted that the land in respect of which encroachment has been regularized by illegal orders passed by Shri Ashok Chavan are all those open spaces of layout sold by the owner of the layout to the plot holders which open spaces were left for enjoyment of the residents of Housing Colony and not for construction of huge buildings by the Jawaharlal Darda Trust or the trustees causing immense injury, hurt, inconvenience and traffic hazards etc., to the Housing Colony members numbering more than 200 and the public at large. He then submitted that it is not that the Jawaharlal Darda Trust purchased these open spaces or were granted lease by anybody or sanction to make constructions of huge buildings and with a compound wall to keep the residents away from the then available open spaces which is nothing short of criminal trespass or a foreigner barging entry into the colony with force. Added to all this, the Ex-Chief Minister Shri Ashok Chavan hastily ordered regularization of such serious criminal actions, namely illegal constructions when nothing fell within the jurisdiction of Collector, Minister or Chief Minister as they did not have jurisdiction under any law to even touch any file for regularization of illegal construction in somebody else's property. He, therefore, submitted that he is concerned with the cause of the public as to how because of the attitude of the accused persons, the common man is suffering and his sufferance is not ending though the applicants have committed serious offences. He, therefore, submitted that for the public good and the public interest and particularly because serious offences are disclosed, the complaint was rightly filed before the Magistrate.
[iii] At any rate, according to the respondent no.2 in person, the reading of the complaint and the documents filed by him before the Magistrate will clearly show that serious criminal offences are made out against all the applicants in which investigation is necessary. He further posed a question as to why the applicants are afraid of facing investigation or public inquiry. He then submitted that the Superintendent of Police had made an inquiry as per the administrative order issued by the Senior Judge of this Court and had reported to this Court and that report clearly shows the high handed and illegal and criminal actions of the applicants including that of Ex-chief Minister Shri Ashok Chavan. He submitted that the Chief Minister is supposed to protect the interest of his lower middle citizens, i.e., 200 and more plot holders and not his favourites and that is the rule of law. He then submitted that he has no means to fight litigation himself and does not understand the niceties and tricks in the innovative arguments by several Senior Advocates. Repeating further, he stated that even this Court will find from the reading of the complaint and various documents filed by him that the respondent no.2 has not committed any wrong in bringing the action before the Criminal Court. He further submitted that he had filed the documents namely complaint to the Police Station concerned, so also the representation to the Superintendent of Police, Yavatmal. But no action was taken because of high status of the applicants. Since nothing is being done and the public at large is suffering severely, he had no alternative but to institute the complaint. Hence, he prayed for dismissal of all the applications.
CONSIDERATION:
7. The first question about the locus standi of respondent no.2 to file the proceedings under Section 156(3) of the Code of Criminal Procedure is required to be answered. The offences alleged in the proceedings in question before the Magistrate are under Sections 120-B/34, 420/34, 468/34, 447/34, 474/34, 466/34, 166/34 of the Indian Penal Code, which are all cognizable offences punishable with the sentence above three years. In the case of A.R. Antulay Vs. R.S. Nayak [AIR 1984 SC 718 at page 718], the Supreme Court held thus:-
âIt is well recognized principle of criminal jurisprudence that anyone can set or put the criminal law into motion except where the statute enacting or creating an offence indicates to the contrary.... Locus standi of the complainant is a concept foreign to criminal jurisprudence save and except that where the statute creating an offence provides for the eligibility of the complainant, by necessary implication the general principle gets excluded by such statutory provisionâ?.
As stated supra the only exception to the general rule that any one can set the criminal law into motion and that locus standi of the complainant is a concept foreign to criminal jurisprudence is indicated in Ss.195 to 199, Cr.P.C.â?
8. At any rate, we find that respondent no.2 by filing the application under Section 156(3) of the Code has merely sought an order for investigation by Police about the cognizable offences stated above. If a case for making investigation is really made out, we do not think as contended that the same should be nipped in the bud. We, therefore, do not accept the objection as to the locus standi of respondent no.2 to file the proceedings before the Magistrate.
9. The next objection raised by the learned counsel for the applicants in all these applications, is that the nature of allegations of the dispute raised are of civil nature, in the sense, that the validity of the orders passed by the applicant - Shri Ashok Chavan, the then Chief Minister, have not been tested and the orders have not been found to be illegal as contended particularly in the light of the fact that the Chief Minister of the State was entitled to make those orders and, therefore, the nature of dispute of the proceedings in question, at the most, can be of civil nature for which the proceedings in question could not have been filed by respondent no.2 and that same is nothing but an abuse of process of law.
10. We have carefully examined the submissions made by the learned counsel for the applicants before us, particularly in the light of decisions cited before us and we find no merit in the submissions. At the outset, we find that the Investigating Officer ordered to make investigation by the Magistrate may collect the material during investigation including the material, if any, indicating any type of civil nature of the dispute and would submit his report accordingly. Whether or not the nature of the proceedings or the material in the proceedings relied upon by respondent no.2 is of civil nature, not attracting the criminal liability at all, is a matter to be found out and it is premature, at this stage, to dub the same as one having the dispute of civil nature. Even otherwise, it is settled legal position that the nature of the dispute being of a civil nature, by itself, is no ground to quash the proceedings and it is only after collection of evidence, the real nature of the dispute could be found out. (See Mahesh Chaudhari Vs. State of Rajasthan : 2009(4) SCC 439).
We thus hold that it would be unsafe, at this stage, to exercise power under Section 482 of the Code of Criminal Procedure on the contention raised by the applicants about the civil nature of the dispute.
11. The next contention by the learned counsel for the applicants is based on the submissions that the proceedings in question filed by respondent no.2 were casually entertained by the Magistrate and the directions were casually issued by him without application of his mind. The applicants placed heavy reliance on the decision of the Apex Court in the case of Priyanka Srivastava Vs. State of U.P. and others [2015(4) Scale 120]. The counsel for the applicants in all these cases severely criticized the action of the Magistrate in issuing the impugned order and the direction to the investigate on the ground that there was no application of mind by him and further that proceeding in question is nothing but abuse of process of law. It would be necessary to advert to the facts in the decision in the case of Priyanka Srivastava (cited supra), which are as follows:-
âOne Prakash Kumar Bajaj had taken a housing loan from the Punjab National Bank in his name and his wife. As there was consecutive default in the payment of installments, the loan account was treated as a NPA and consequently notice to the borrowers under Section 13(2) of the SARFAESI Act was issued to them on 5th June, 2007. The attempts made by him to challenge the said action failed. He then invented an idea of filing criminal complaint against the bank officials who had initiated action against him under SARFAESI Act that they had taken steps under SARFAESI Act in order to cause injury to him, but the complaint was dismissed. The Supreme Court found that merely because the bank officers had performed their duties under SARFAESI Act to recover the loan which had become NPA, he filed the complaint before the Magistrate under Section 156(3) of the Code, even after the High Court had quashed the earlier proceedings in respect of which the reference was made above. The ground for filing criminal case was that there was deliberate under valuation of the property made by the bank officials and therefore, offence under Sections 465, 467, 468, 471, 386, 506, 34, 120-B of Indian Penal Code were made out and in that case the trial Magistrate issued direction to investigate. It is, in this context, the Supreme Court observed in its judgment in paragraph 7 that the complainant Prakash Bajaj mastered how to create a sense of fear in the mind of officials of the bank and they were compelled to face criminal cases and in paragraph 16 the Supreme Court further stated that the statutory remedies were cleverly been bypassed and prosecution route was undertaken for instilling fear amongst the individual authorities compelling them to concede to the request for one time settlement. But the High Court did not interfere for setting aside the proceedings under Section156(3) of the Code. Apart from the fact that the bank officials had acted as public servants in the discharge of their official duty should not be prosecuted in the manner thought by Prakash Bajaj, since he was unscrupulous and unprincipled litigant who took adventurous steps with Courts to bring the financial institutions on their knees. While emphasizing the need for application of mind by the Magistrate, the Apex Court stated in paragraph 27 thus:-
â......That apart, it becomes more disturbing and alarming when one tries to pick up people who are passing orders under a statutory provision which can be challenged under the framework of said Act or under Article 226 of the Constitution of India. But it cannot be done to take undue advantage in a criminal court as if somebody is determined to settle the scores. We have already indicated that there has to be prior applications under Section 154 (1) and 154(3) while filing a petition under Section 156 (3). Both the aspects should be clearly spelt out in the application and necessary documents to that effect shall be filed.â?
The Supreme Court also referred to the earlier judgments of the larger benches in the case of Priyanka. Looking to the peculiar facts in Pryanka's case [supra] and the facts of the present case, the decision has no application.
12. The learned counsel for the applicants vehemently submitted that there was no compliance of Section 154(1) and 154(3) of the Code in the instant case nor the necessary documents as required were filed along with complaint in question and no case was made out for issuing any directions nor any care was taken by the learned Magistrate to keep in mind the dictum of the Apex Court and therefore, the proceedings are liable to be quashed so also the impugned order.
13. We have carefully examined the entire record and the submissions which were advanced before us in the light of the law shown before us. A detailed reference was made by respondent no.2 before us in respect of the pleadings in Writ Petition No.3559/2002 which was filed by Pramod Ajmire. We think it necessary to quote the following paragraphs from the pleadings in the said Writ Petition, as under:-
â1. ........................................................................
.................One Dwarkaprasad Mangilal Sharma, Partner, Pruthvi Enterprises, Yavatmal had prepared a Layout of Field Survey Nos. 17/1, 17/2 and 19/2 situated at Wadgaon Road, Yavatmal. The Sub Divisional Officer, Yavatmal had given sanction to the said Layout on 15/12/1981 in Revenue Case No. 20/N.A. P-34/1981-82. â¦.â?
â2. While sanctioning the said Layout, the land admeasuring 7076.607 sq. mtrs was left an Open Space for the purpose of public utility and land admeasuring 278.709 sq. mtrs., was reserved for Balwadi. As per the order of the Sub Divisional Officer, the said reserved land vested in the Local Authority. â¦.â?
â3. Wadgaon Road is an integral part of Yavatmal Town and hence, the Municipal Bye-laws are applicable to the land situated at Wadgaon Road. As per Byelaw No. 14.2, in any Layout or sub-division of land admeasuring 0.4 Hectares or more for residential purpose and 0.8 Hectares or more for industrial purpose, 10% of local area of land shall be reserved for open space, which shall as far as practicable be located in one central place and it shall be put to public use such as Kinder Garten, Library, Club Hall, Pavillion etc.. Location of such structure shall be in one corner of open space. â¦..â?
â4. After the Layout was sanctioned on the above terms, the Respondent No.5, Shri Vijay Darda constructed a Private School known as âMatoshreeâ? Sau. Veenatai Darda English Medium School on the said Public place. The residents of Darda Nagar lodged a complaint against the said unauthorized construction of the school to the Sarpanch, Gram Panchayat Wadgaon.
â¦. â¦. A reminder was also issued to the Sarpanch on 26/2/1997. However, as Shri Vijay Darda, who is a politician and presently is a Member of Parliament and therefore, the Sarpanch did not take any action on the said representation made by the Public. â¦..â?
â9. To the knowledge of the petitioner, the Respondents No. 5,8 and 9 merged the Plots No. 209, 210, 211 and 212 into the open space shown in the Layout at Annexure-I and constructed a Compound Wall on all the sides of the aforesaid open space along with aforesaid Plots No. 209, 210, 211 and 212. Lakhs of rupees were spent by the Respondent Nos. 5,8 and 9 in the aforesaid construction of the compound wall. The height of compound wall is about 6'. The entire area within the said compound wall has been utilized by Respondents No. 5, 8 and 9 for their English Medium school and its Play Ground. Thus, the Citizens have been deprived of their legitimate right to use the open space, which was left in the Layout. â¦.â?
â12. On 17/11/1965, Late Shri Jawaharlal Darda made an Application to the Collector, Yavatmal for grant of âB Classâ? land in Survey No.88, Sheet No.15, Plot No.8, admeasuring 1,82,611 sq. ft. offering to pay reasonable price as per Government Rules. In the said Application, Late Shri Jawaharlal Darda, styled himself as a Political sufferer and claimed the benefit of the Policy decision, which was declared by the then Chief Minister of Maharashtra, Mr. Vasantrao Naik on 15th August, 1965. The copy of the Application is annexed herewith as Annexure-XI. On 15th April, 1966, again Late Shri Jawaharlal Darda repeated the said request and highlighted the aspect of solving the problem of cultivators by establishing a Nursery and Dairy on the portion of the plot which was sought by him. The copy of the said representation is annexed herewith as Annexure-XII. On 23.5.1966, the Assistant Director, Town Planning, Amravati, wrote a letter to the Nazul Officer, Yavatmal informing him that there was `no objection' to grant the land to Shri Darda for Nursary only and not for Cattle Shed Dairy and Workshop. The copy of the said letter is annexed herewith as Annexure-XIII. On 22.6.1966, the Nazul Officer informed the Collector that an area admeasuring 1,82,611 sq. ft. from Plot No.88, Sheet No.11 of Yavatmal Town proposed to be granted to Shri Jawaharlal Darda on âBhoomi-dhari Rightsâ? on payment of Rs. 2,096/- as premium. The grant was subject to the conditions imposed by the Town Planning Officer, Amravati. The copy of the said communication dated 22.6.1965 is annexed as Annexure-XIV. On 17.4.1967 the Nazul Officer, Yavatmal issued a Certificate in favour of Late Shri Jawaharlal Darda thereby conferring upon him âBhoomi-dhari Rightsâ? for agricultural purposes.
13. On 30.6.1964, Late Shri Jawaharlal Darda, who was the then Member of Legislative Council, made an Application before the Sub Divisional Officer, Yavatmal for conversion of land in field Survey no.88 admeasuring 1 acre into non-agricultural purpose and using it for public purpose. The copy of the said communication dt. 30.6.1984 is annexed herewith to Annexure-XVI. The Executive Engineer, P.W.D. gave `no objection' for conversion of land. The copy of the communication dated 5/9/1984 is annexed herewith as Annexure-XVII. However, the Assistant Director, Town Planning, Yavatmal informed the Sub Divisional Officer, Yavatmal, vide communication dated 21.10.1988 that the proposed construction was contrary to the Plan and as the said land is reserved for garden, the proposal of the applicant for conversion could not be recommended.
14. So as to get over hurdle created by the above communication, the land was got de-reserved vide order dt. 4th February, 1992, issued by the Under Secretary, Government of Maharashtra and instead of keeping it as an open space for garden and public user, the owner was allowed to construct a Memorial Hall. The copy of the said communication is annexed herewith as Annexure-XIX. After getting the said order from the Government, the Sub Divisional Officer, Yavatmal passed an order dated 29.4.1992, thereby allowing the conversion of 4046.7 sq.mtrs. Of land out of Survey No.88 for non-agricultural use. The copy of the said order is annexed herewith as Annexure-XX. The said Memorial Hall, which is known as âMatoshree Sabhasgruhâ? is treated by the Respondents No.5, 8 and 9 as their private property and it is not open for free public use. The respondents No.5, 8, and 9 regularly let out the said Memorial Hall for marriage and for other functions and ceremonies and received Rs. 25,000/-per day from the customers. Thus, the Respondents No.5, 8 and 9 have constructed a Commercial Complex on âE Class Landâ?, which was initially reserved as open space. The Respondent No.1 has erroneously granted permission to the Respondents No.5, 8 and 9 for constructing a Commercial Complex by lifting the aforesaid reservation. Thus, it is necessary in the interest of justice to direct the Respondent no.1 to revoke the order of de-reservation.
15. About 3 years back, Shri Jawaharlal Darda expired. He was cremated on the portion of B class Land in Survey No.88. Instead of cremating him on the regular cremation ground, the cremation took place on the aforesaid B class land which was left open for the purpose of public utility. Not only that Late Shri Jawaharlal Darda was cremated on the aforesaid land, but the respondent no.5, Shri Vijay Darda is trying to construct âSamadhiâ? of Late Shri Jawaharlal Darda on the portion of the open land in Survey No.88. On the said portion of the land, which is being used for the purpose of construction of Samadhi, there was a Nursery, which was established as stated above. To the knowledge of the petitioner, no permission was sought from the appropriate authority for two construction of Samadhi of Late Shri Jawaharlal Darda. Thus, the Respondents No. 5, 8 and 9 have illegally started the said work. Inspite of the knowledge of the said fact, the Respondent No.7 the Collector, Yavatmal has not taken any steps thereby prohibiting Respondents No.5, 8 and 9 from doing the said illegal act. Public at large is affected by the construction of said samadhiâ?.
In the said petition, the following were prayer clauses:-
â(i) The Respondents No.4 and 7 be directed by issuing a Writ of Mandamus or any other appropriate writ to demolish the illegal and un-authorised construction on the open space in the Layout/Site Plan at Annexure-I, which is a part of Survey Nos. 17/1 and 18/2, i.e. Matoshree Veenatai Darda English Medium School Building and the compound walls surrounding the said school building;
(iv) By issuing a writ of mandamus, the Respondent No.2, 3 and 7 be directed to take appropriate steps for demolition of the structure known as âMatoshree Sabha-gruhâ?, which has been constructed on Survey No.88 by converting the land admeasuring 4046.7 sq. mtrs. for the said use and by issuing a writ or certiorari the Government's Order dated 4th February, 1992, which is at Annexure-XIX, be quashed and set aside;
(v) The Respondents No. 4 and 7 be directed by issuing appropriate writ or order or direction to demolish the illegal construction of School done by Respondents No.5, 8 and 9 and the compound walls of the said school, which constructions are on open space, which was left on Survey No.17/1 and bounded by Plots No.10, 11, 30, 31, 56, 57, 58, 59, 60, 61, 62, 63, 64, 83, 84, 111, 112 and 5 shops in the said Layout at Annexure-Iâ?.
14. This Court by judgment and order dated 13th December, 2002 disposed of the said Writ Petition on the undertaking given by respondent no.5 in that Writ Petition that since they had applied for ex-post-facto sanction for the constructed area in the event of rejection, thereof the construction would be removed on their own. The Court did not adjudicate on the facts and questions raised in that Writ Petition. However, as contended by respondent no.2, the illegal constructions have not yet been removed, but directions to regularize were issued by Ex-Chief Minister Mr. Ashok Chavan on 7th October, 2004, 25th October, 2009 and 23rd June, 2010.
15. Respondent no.2 has averred in his complaint that he made compliance with Section 154(1) and 154 (3) of the Code of Criminal Procedure and we have seen those documents filed by him on the record. He has made a grievance that neither the Police Station Officer concerned nor the Superintendent of Police, Yavatmal, have taken any action on the complaints dated 7th December, 2012, 27th December, 2012 made by him referred to in the proceedings in question in the last but-one paragraph of the complaint. We, therefore, find that there is compliance of Section 154(1) and 154(3) of the Code. We have also perused the entire record and we find that the complaint that was filed by respondent no.2 was accompanied by several documents which have also been placed before us with reply. We have perused the entire complaint filed by respondent no.2. We find that the same is in all necessary details. We have also perused the documents which respondent no.2 has placed before us with reply and we find that whatever has been stated in the complaint is fully supported by the copies of official documents of the Government.
16. This Court is required to advert to all the facts in the complaint as well as the documents since there is objection that the learned Magistrate did not apply his mind to the averments in the complaint and the documents and which is not clear from his impugned order. We find that the learned Magistrate did read the entire complaint and the documents, as is clear from his order from paragraph no. 4 onwards but then looking to the period of four years which has already passed due to stay order granted by this Court in these proceedings of the order directing investigation, we have ourselves decided to find out whether the ultimate conclusion of the Magistrate based on the complaint and the documents to issue direction is right or not and for that purpose we are required to undertake the exercise of referring to the material on record, that was filed before the Magistrate as well as the Government documents.
17. The substance of the averments in the complaint is as under:-
[I] While sanctioning the said Layout, the land admeasuring 7076.607 Sq. Mtrs. was left on Open space for the purpose of public utility and land admeasuring 278.709 sq. Mtrs. Was reserved for Balwadi. As per the order of the Sub Divisional Officer, the said reserved land vested in the Local Authority.
[ii] Wadgaon Road is an integral part of Yavatmal Town and hence, the Municipal Byelaws are applicable to the land situated at Wadgaon Road. As per Byelaw No.14.2, in any Layout or sub-division of land admeasuring 0.4 Hectares or more for residential purpose and 0.8 Hectares or more for industrial purpose, 10% of local area of land shall be reserved for open space, which shall as far as practicable be located in one central place and it shall be put to public use such as Kinder Garten, Library, Club Hall, Pavillion etc., Location of such structure shall be in one corner of open space.
[iii] After the Layout was sanctioned on the above terms, the Respondent no.5, Shri Vijay Darda constructed a Private School known as âMatoshreeâ? Sou. Veenatai Darda English Medium School on the said Public place. The residents of Darda Nagar lodged a complaint against the said un-authorised construction of the School to the Sarpanch, Gram Panchayat Wadgaon.
A reminder was also issued to the Sarpanch on 26.1.1997. However, as Shri Vijay Darda, who is a Politician and presently is a Member of Parliament and therefore, the Sarpanch did not take any action on the said representation made by the Public.
[iv] To the knowledge of the petitioner, the Respondents No. 5, 8 and 9 merged the Plots No. 209, 210, 211 and 212 into the open space shown in the Layout at Annexure-I and constructed a Compound Wall on all the sides of the aforesaid open space along with aforesaid Plots No.209, 210, 211 and 212. Lakhs of Rupees were spent by the Respondents No.5, 8 and 9 in the aforesaid construction of the compound wall. The height of compound wall is of about 6'. The entire area within the said compound wall has been utilized by Respondents No.5, 8 and 9 for their English Medium School and its Play Ground. Thus, the Citizens have been deprived of their legitimate right to use the open space, which was left in the layout for their use and enjoyment.
18. The Superintendent of Police, Yavatmal, had also submitted a report dated 11.6.2008 pursuant to the instructions from Nagpur Bench of the Bombay High Court and in his report, he stated thus:-
â(i) According to his letter, the Collector, Yavatmal has intimated that the land in question is situated at village Wadgaon Road adjacent to Yavatmal City (field survey no.17/1, 17/2 and 18/2). The S.D.O., Yavatmal has granted permission of non agricultural use of the said land. But the said land 76,172 sq. ft. is reserved as âopen spaceâ?. The open space should be used for the purposes of garden, sports ground, Balwadi, library etc., which is for the benefit of people residing in the said lay out. But the Collector, Yavatmal vide his letter dated 4.4.2008 has clearly mentioned that either the Secretary or the Sarpanch of any Gram Panchayat has no power to grant the âopen spaceâ? land to any organization or permanent Body. This shows that the decision of allotment of 76,172 sq.ft. land situated at village Wadgaon Road, taken by the Gram Panchayat is illegal and without any authority.
(ii) The Block Development Officer (B.D.O.) of Panchayat Samiti, Yavatmal in which Wadgaon Road village is situated, has furnished information vide his letter dated 22.4.2008. In this letter the B.D.O. has explained that the building of Veena Devi Darda English medium school has 3 floors (ground, 1st and 2nd floors). This shows that the Government circulars annexed at ANNEXURE-D had been violated. The B.D.O. has also stated that the total construction area is 2724.92 sq. mtrs., which comes around 29, 320 sq.fts. which is 39% of the whole âopen spaceâ? area. This shows that the construction on the open space in the name of Veena Devi Darda English medium school is not as per the Government rules and regulations and that the norms of Govt. circulars have been violated.
(iii) It is also submitted that as per the circular, the constructions made on the open space should be in one corner. But the construction is totally in the middle of the open space and this is clear by the map submitted by the Secretary, Gram Panchayat of village Wadgaon Road.
(iv) The chart furnished by the Collector, Yavatmal and the letter furnished by the Asstt. Charity Commissioner, Yavatmal shows that Shri Vijay Darda has sanctioned Rs. 10/0 lac in the financial year 1999-2000; Rs. 19.62 lac in the financial year 2000-2001 and Rs. 4.91 lac in the financial year 2001-2002. This shows that M.P.L.A.D. fund of Rs.34.53 lac has been sanctioned to Veena Devi Darda English medium school in the period when Shri Vijay Darda was the President of the Education Society. The Govt. Resolution and guidelines to regulate the funds under M.P.L.A.D. is annexed at ANNEXURE âJâ? at Appendix-2 it has been clearly mentioned that the M.P.L.A.D. funds cannot be used for the construction of the building of trust, registered society, private institution and co-operative institutions. This shows that the above said funds of Rs. 34.53 lac of Shri Vijay Darda, M.P. has been spent on an Education Society which is private. This clarifies that while sanctioning funds from M.P.L.A. D., the Central Government Resolution has been violatedâ?.
It is, thus, seen from the above report as well as the report dated 21st November, 2008 of the Director, Town Planning, Maharashtra State, Pune, that no construction could be made in the open spaces in the layout of the plot holders by the Trust, and construction made could not be regularized and that the Central Govt. MPLAD Fund was utilized for these activities that too in the name of the family member of the Member of Parliament Shri Vijay Darda, which is prohibited. It appears that the applicantâ“Shri Vijay Darda felt aggrieved by the said report and, therefore, had filed a Writ Petition No.2835/2010 at the Principal Bench of Bombay High Court at Bombay since the alleged misuse of M.P. Funds above Rupees thirty five lakhs in the year 2003 was found and the Government of India, Ministry of Statistics and Programme Implementation under its letter dated 25th August, 2008 directed recouping of said funds since the amounts were sanctioned in violation of the guidelines. The said Writ Petition was dismissed by order dated 13th April 2010 and thereafter the Apex Court also dismissed S.L.P.(Civil) No.23355 of 2010 on 11.9.2012 holding that the reasons assigned by the High Court for declining the petitionerâ™s prayers were legally correct and no interference was called for in the judgment of the High Court. It is still not known as to whether those funds were recouped or not. If not, the tax payer is bound to get jittery.
19. Now, reverting to the facts and Government documents from which the controversy arose, we find the following salient features:-
[I] Sub-Divisional Officer, Yavatmal, sanctioned a layout in Survey Nos. 17/1, 17/2 and 19/2, Mouza Wadgaon Road, Yavatmal at the instance of the then owner Prithwi Enterprises, Yavatmal, on 15th December, 1981. He ordered keeping 7076.67 sq. meters of land reserved for open space and 278.709 sq. meters for Balwadi, and this entire land vested in the Local Authority.
[ii] Wadgaon Road falls within the 'Municipal Limits' of Yavatmal Municipal Council and Planning Regulations and Bye-laws are applicable. People purchased plots [about 200] and constructed their houses in the layout. The Prithvi Enterprises having sold the entire layout and did not have any concern with the layout, nor it indicated so.
[iii] Gram Panchayat, Wadgaon, was having no right, authority or power and was also not concerned, but the Jawaharlal Darda Trust made application dated 13th August, 1992 to Gram Panchayat which passed a resolution on 24th August, 1992 to allot all the above open spaces, i.e., 76172 sq. ft., and 59800 sq. ft., from Survey Nos. 17/1, 17/2, 18/2, 20/1 and 21/1. The plot holders objected [Annex.V, Record Page 69] saying that Dardas have hundreds of acres of land to construct school and these open spaces belong to the plot holders and none else.
[iv] The Jawaharlal Darda Trust constructed a huge building in these open spaces by barging the entry and started school. Thereafter, the Trust constructed a huge compound wall throughout, totally depriving the residents of enjoyment of their own property. The MPLAD Fund as above was utilized and the school was named in the name of Late Smt. Veen Devi Darda which is prohibited as stated in the letter dated 10th April, 2003 from Under Secretary, Govt. of India, MPLAD Scheme and in which recovery was directed and which action was upheld by Bombay High Court and the Supreme Court.
[v] The Trust on 15th April, 2008 issued a letter to Shri Narayanjrao Rane, Revenue Minister, for regularization of the entire constructions made. Director, Town Planning made a report on 21st November, 2008 vide para 3 none else but the resident plot owners had the right to enjoyment and hence no regularization could be made. On 16th July, 2008 [Annex.XIV] about 80 plot holders requested Shri Vijay Darda, Member of Parliament, Shri Rajendra Darda, the Hon'ble Minister, to vacate the entire encroachment for their enjoyment.
[vi] Shri Ashok Chavan, the Hon'ble Chief Minister, issued orders on 7th October, 2009 and 25th October, 2009 which are referred in further letter dated 23rd June, 2010 [Annex.XX] issued by Urban Development Department held by Shri Chavan, stating that Collector, Yavatmal, was already directed to regularize the constructions and for additional reasons, the regularization should be made.
20. The above tell-telling established facts from the Govt. documents depict appaling and sordid state of affairs in this State when the Govt., and that too then Hon'ble Chief Minister found fun and enjoyment in tormenting common men, i.e., the 200 plot holders in their own right having purchased the plots with their hard-earned money without any aid or assistance from the Govt., or allotment or any Govt. land to them. The Trust did not have semblance of any right so also the Collector, Govt., or the Chief Minister to intrude in the private sanctioned layout. But the intrusion was made by the Trust. The Trust barged entry into this private layout open spaces belonging to 200 plot holders. Then Shri Ashok Chavan as Chief Minister with full Governmental power used it, annihilating the right and enjoyment of already disillusioned and despondent lower middle class plot holders with despotic and inexpiable directions to regularize constructions in their private compound putting them in doom and gloom. The obvious reason was his association with Shri Rajendra Darda, his Cabinet Minister and Member of Parliament being the trustees of the said Trust. This is nothing but 'a state of oligarchy.' We are dejected, in that, despite the Supreme Court order imposing cost in the sum of Rs.10 Lac on the State of Maharashtra for similar 'abuse of power' by the then Chief Minister, vide State of Maharashtra and others ..vs.. Sarangdharsingh Shivdassingh Chavan and another; (2011) 1 SCC 577, his successor Chief Minister Shri Ashok Chavan has followed the same path. Be that as it may, at any rate, in this case, a thorough, honest, uninfluenced and deep investigation is required to be made.
21. We are unable to accept the next submission made by Mr. S.V. Manohar, Adv., that Section 44 of the Maharashtra Land Revenue Code empowered his client to issue directions to regularize. As discussed earlier, none had any authority or power in respect of open spaces in a private compound, nor 'consent' of all or any plot holders would change the legal position. We then quote Section 1 of the Judicial Officers Protection Act, 1850, which reads thus:-
â1. Non-liability to suit of officers acting judicially, for official acts done in good faith, and of officers executing warrants and orders.- No Judge, Magistrate, Justice of the Peace, Collector or other person acting judicially shall be liable to be sued in any Civil Court for any act done or ordered to be done by him in the discharge of his judicial duty, whether or not within the limits of his jurisdiction:
Provided that he at the time in good faith, believed himself to have jurisdiction to do or order the act complained of; and no officer of any Court or other person, bound to execute the lawful warrants or orders of any such Judge, Magistrate, Justice of the Peace, Collector or other person acting judicially shall be liable to be sued in any Civil Court, for the execution of any warrant or order, which he would be bound to execute, if within the jurisdiction of the person issuing the same.â?
Upon reading the same, we do not think that this provision has any application or any protection is available to the Ex-Chief Minister Shri Ashok Chavan in the above factual background.
22. The upshot of the above discussion is that the investigation must be carried out. Since the investigation got delayed for about four years and the applicants are highly influential persons, we think the State of Maharashtra in its Home Department should appoint a high level officer to supervise the investigation which shall be completed within four months. The applicants have procrastinated the investigation for all these years without any justification. God only knows when the entire encroachment will be removed to give respite to these common people. Hence order for costs and for early investigation is also needed.
23. We clarify that none of the observations herein on facts shall influence the investigating machinery while making investigation.
24. In the result, we do not find any merit in these applications and, therefore, we make the following order:-
ORDER
[a] Criminal Application (APL)No. 469/2011 is dismissed with costs in the sum of Rs. 25,000/- payable to the respondent no.2 within a period of four weeks from today.
[b] Criminal Application (APL) No.542/2011 is dismissed with costs in the sum of Rs. 25,000/- to be deposited with Collector, Yavatmal, within a period of four weeks from today.
[c] Criminal Application (APL) No.507/2011 is dismissed with costs in the sum of Rs. 25,000/- to be deposited with Collector, Yavatmal, within a period of four weeks from today.
[d] Criminal Application (APL) No.508/2011 is dismissed with costs in the sum of Rs. 25,000/- to be deposited with Collector, Yavatmal, within a period of four weeks from today.
[e] Criminal Application (APL) No.509/2011 is dismissed with costs in the sum of Rs. 25,000/- to be deposited with Collector, Yavatmal, within a period of four weeks from today.
[f] Criminal Application (APL) No. 510/2011 is dismissed with costs in the sum of Rs. 25,000/- to be deposited with Collector, Yavatmal, within a period of four weeks from today.
[g] Criminal Application (APL) No.511/2011 is dismissed with costs in the sum of Rs. 25,000/- to be deposited with Collector, Yavatmal, within a period of four weeks from today.
[h] Criminal Application (APL)No.512/2011 is dismissed with costs in the sum of Rs. 25,000/- to be deposited with Collector, Yavatmal, within a period of four weeks from today.
[I] The Collector, Yavatmal, shall keep the amounts upon deposit in a separate account.
[j] The State of Maharashtra in Home Department shall appoint a high level officer to supervise the investigation within 'one month' and the investigation shall be completed within four months and the report thereof shall also be made to this Court after which the matter shall be placed before this Court.
Mr. Naik and Mr.Mirza, the learned counsel for the applicants along with other learned counsel, have made a request for stay of the judgment and order to enable them to approach the apex Court. However, since the delay was caused in making investigation by the applicants, the prayer for stay in all these applications is rejected.