The offence of illegal construction under Section 292-C (3) of the Act, 1956 is considered continuing in nature and not time-barred under Section 398.

As per Hon'ble Shri T.P. Sharma, J.:-

1. By this petition under Article 226 of the Constitution of India the petitioner has prayed for following substantial reliefs :-

"B. This Hon'ble Court may kindly be pleased to quash the: notice dated 7.7.2009 bearing No.LUV/BS/09/175 (Annexure P-1) issued by respondent No.6-Municipal Corporation, Durg.

C. This Hon'ble Court may kindly be pleased to quash the First Information Report bearing No.372/09 dated 23.7.2009 (Annexure P-2) registered under Section 292 (c) (3) of the Act, 1956 in Police Station City Kotwali, Durg by the respondent No.5 herein."

2. As per averments made in the writ petition, the petitioner has constructed a house over his own land after obtaining due permission for construction from the respondent No.6 vide order dated 30.10.2002. On the basis of complaint dated 4.7.2008 made by five persons to whom the petitioner had sold the flats, FIR under Crime No.372/09 has been registered on 23.7.2009 for the offence punishable under Section 292-C (3) of the C.G. Municipal Corporation Act, 1956 (henceforth 'the Act of 1956'). The petitioner is, not a colonizer, he has not constructed any colony and thus he has not violated any conditions of the permission granted by the respondent No.6 for construction of house. Even otherwise, as per provisions Section 398 of the Act of 1956, the respondent No.6 is not competent to prosecute the petitioner after six months of the date of offence and therefore no investigation can be done on the basis of alleged first information report registered under Crime No.372/09 on 23.7.2009, which itself is time barred because the report has been registered after more than six months of such information received from the alleged owner of the flats.

3. Heard learned counsel for the parties and perused the records.

4. Learned counsel for the petitioner submits that the petitioner is neither a colonizer nor has constructed a colony. He was owner of the aforesaid building. He and other co-owners have sold the different parts of the building to different persons. Aforesaid flats have been constructed in the year 2003 after obtaining due permission from the respondent No.6. The respondent No.6 was having knowledge of the construction of flats in the year 2002 itself. FIR has been registered on the basis of written complaint dated 4.7.2008 made by five flat owners. On 30.7.2009, after more than one year of such complaint, in light of the embargo created under Section 398 of the Act of 1956, the police should not have registered the first information report relating to time barred offence. Alleged FIR is required to be quashed by issuance of appropriate writ.

5. On the other hand, learned counsel appearing for the respondents vehemently oppose the petition and submit that the offence under Section 292-C of the Act of 1956 is continuous in nature. Even as per written complaint dated 4.7.2008, the petitioner is not providing required facilities to the flat owners. They further submits that after receiving the complaint, notice dated 7.7.2009 has been issued to the petitioner which was replied by the petitioner vide his reply dated 16.7.2009. In the year 2009 the petitioner has also constructed covered parking for the inhabitants of the said building. Thereafter the report has been lodged and thus the offence is continuing in nature and cause of action also arose on the date when the petitioner started construction of covered parking. The report has not been registered after six months of the offence or knowledge of the offence. They further submit that the petitioner has failed to make out a case for interference in exercise of writ jurisdiction in terms of Article 226 of the Constitution of India.

6. Section 292-C of the Act of 1956 reads thus:-

“292-C. Punishment for illegal colonization.-(1) A Colonizer, who in contravention of the provisions of Section 172 of the Madhya Pradesh Land Revenue Code, 1959 (No.20 of 1959) and the rules made thereunder, diverts the