The court established that only the registered owner can be held liable for unauthorized construction under the JDA Act, and improper inclusion of parties violates due process.

JUDGMENT :

Sudesh Bansal, J.

1. Three petitioners have jointly filed the present criminal misc. petition under Section 482 Cr.PC, for quashing of criminal proceedings against them in Criminal Complaint No.289/2010; JDA Vs. Radhey Shyam Agrawal & Ors., pending before the Court of Additional Chief Judicial Magistrate No.1, Jaipur Development Authority, Jaipur, wherein after taking cognizance for offences under Sections 31-32 of the Jaipur Development Authority Act, 1982 (hereinafter for short “the JDA Act”), vide order dated 02.12.2010, process has been issued against petitioners. Petitioners, after service of summons, filed an application dated 22.09.2011, seeking to reject the criminal complaint on various grounds, but that application has been dismissed by the Court of Magistrate vide order dated 18.10.2012, hence the order dated 18.10.2012 has also been impugned by the petitioners in the present petition.

2. Briefly stated, it appears from record that on the basis of a Factual Inspection Report dated 12.11.2010, a criminal complaint against petitioners, has been filed on 02.12.2010, in respect of an illegal and unauthorized construction in rear setback portion of about 8’ 3”X 75’ area in Plot No.B-40, Ganesh Nagar, Jaipur and the allegation is that such construction was raised without permission of Jaipur Development Authority (hereinafter for short “the JDA”), and in addition, has not been removed despite giving notice by the JDA, therefore, offences under Sections 31(1) & 32 of the JDA Act has been made out against petitioners. The complaint has been filed by the JDA through Enforcement Officer, impleading all three petitioners as accused therein before the Court of Additional Chief Judicial Magistrate No.1, JDA, Jaipur, whereupon the Magistrate took note of the fact that since complaint has been filed by the Enforcement Officer, in the capacity of Public Servant, there is no requirement to record statements of complainant and witnesses under Section 200/202 Cr.PC, accordingly same is dispensed with and cognizance of alleged offences against all three petitioners, has been taken vide order dated 02.12.2010 and process against petitioners was issued to call them through summons.

3. Petitioners, after service of summons, by way of filing application dated 22.09.2011 before the Court of Magistrate, raised three objections/issues, which are :

(I) Construction in question is more than 25 years’ old and limitation for taking cognizance of offences under Sections 31-32 of the JDA Act, has expired, therefore, criminal complaint is hopelessly barred by limitation.

(II) Notice dated 12.11.2010, issued for removal of such construction, was never served in person on petitioners, rather service has been effected through chispandagi, which is violative to Section 86 of the JDA Act and Section 64 of Cr.PC.

(III) Plot No.B-40, wherein the construction in question in rear setback portion, has been stated to be raised illegally, was purchased in joint name of Ravindra Kumar Agrawal and Mahendra Kumar (petitioners No.2 & 3 herein), through sale agreement dated 02.11.1988 from the original allottee of the plot namely Smt. Vijay Laxmi Shekhawat and thereafter, registered lease deed of the plot has been issued by the JDA on 22.03.2002, in the sole name of Ravindra Kumar Agrawal (petitioner No.2 herein), therefore, petitioner No.2 is alone the real and registered owner of the plot, hence, impleadment of petitioner No.1-Radhey Shyam Agrawal, who is father of petitioner No.2, and petitioner No.3-Mahendra Kumar, who is brother of petitioner No.2, as accused in the criminal complaint, is ex-facie illegal, as much as contrary to record of the JDA, therefore, the criminal complaint is wholly arbitrary and has been filed in abuse of process of law.

4. The application filed by petitioners, has been rejected by the Magistrate vide order dated 18.10.2012. In respect of Point Nos. I & II, it has been held that both points are mixed question of facts and law, there