HIGH COURT OF UTTARAKHAND AT NAINITAL. (Court’s order whether the case is or not approved for reporting) (Chapter VIII Rule 32 (2) (b) Description of the Case. Criminal Misc. Application No. 221 of 2003 Amrish Jain …Applicant Vs State of Uttaranchal & another …Respondents Approved for reporting ______________________ Not approved for reporting Date of Decision 2nd January, 2008 Initial of Judge. (B.C. Kandpal, J.) IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Misc. Application No. 221 of 2003 Amrish Jain S/o Late Sri J.D. Jain R/o Ladpur Police Station Raipur District Dehradun …Applicant Vs 1. State of Uttaranchal 2. Mussoorie Dehradun Development Authority 12 Preetam Road, Dehradun through Umapati Bhatt. A.E. Mussosoorie Dehradubn Development Aughority Dehradun …Respondents Sri Sandeep Tandon, learned counsel for the petitioner. Learned A.G.A. for the State/Respondent No. 1 Sri S. Dhulia, learned Senior Advocate assisted by Sri Vipul Sharma, learned counsel for the respondent No. 2 Hon’ble B.C. Kandpal, J. By way of this petition under Section 482 Cr. P.C., the petitioner, who has been summoned by the Magistrate, in Criminal Case No. 400 of 2003, M.D.D.A. Vs Amrish Jain & others, under Section 26(1) Uttaranchal (U.P.) Urban Planning & Development Act, 1973, has challenged the proceedings of the aforesaid case. 2. Brief facts giving rise to this petition are that there was a dispute with regard to the constructions to be raised by the petitioner on the land and on account of that dispute, respondent No. 2 – M.D.D.A. filed a criminal complaint against the petitioner and others under Sections Section 26(1) Uttaranchal (U.P.) Urban Planning & Development Act, 1973 (hereinafter referred as ‘Act’) in the court of C.J.M., Dehradun. The learned Magistrate on the basis of the aforesaid complaint took the cognizance in the matter and issued summons to the petitioner as well as other co-accused persons vide order dated 24.02.2003. Against the aforesaid order of the learned Magistrate, a revision was preferred by the petitioner before the court of Session Judge, Dehradun, which was transferred to Additional Sessions Judge/F.T.C. IIIrd, Dehradun. After hearing learned counsel for the parties and perusing the entire material available on record, the revision was dismissed vide judgment and order dated 02.09.2003. 3. Feeling aggrieved by the aforesaid orders of the courts below, the petitioner has approached this Court by way of this petition. 4. Heard Sri Sandeep Tandon, learned counsel for the petitioner, learned A.G.A. for the State/respondent No. 1, Sri L.K. Tiwari holding brief of Sri J.P. Joshi, learned counsel for the respondent No. 2 and perused the record. 5. Sri Sandeep Tandon, learned counsel for the petitioner has confined his submission to this aspect of the case that in this case in view of the provision of Section 26 of the Act, the complaint before the learned Chief Judicial Magistrate is not maintainable. 6. He has invited my attention towards the provision of Section 26 of the Act and has raised the submission that the above provision itself nowhere indicates that the cognizance would be taken by the Magistrate on the complaint to be filed by the M.D.D.A. He has submitted that the provision of Section 26 of the Act has only a provision for penalty, therefore, no complaint could have been filed by the respondent No. 2 – M.D.D.A. before the court of learned Chief Judicial Magistrate. 7. Sri S. Dhulia, learned Senior Advocate appearing on behalf of respondent No. 2 ahs made the rival submission that the penalty against the petitioner could not have been imposed by the respondent No. 2 itself without having any complaint before the court of competent jurisdiction under Section 26 of the Act. “In order to resolve the controversy between the parties, it would be relevant to quote the provision of Section 26 of the Act, which reads as under:- 26. Penalties._(1) Any person who whether at his own instance or at the instance of any other person or any body (including a department of Government) undertakes or carries out development of any land in contravention of the master plan or zonal development plan or without the permission, approval or sanction referred to in Section 14 or in contravention of any condition subject to which such permission, approval or sanction has been granted, shall be punishable with fine which may extend to (fifty thousand rupees) and in the case of a continuing offence, which further fine which may extend to (two thousand five hundred rupees) for ever day during which such offence continues after conviction for the first commission of the offence. (2) Any person who uses any land or building in contravention of the provisions of Section 16 or in contravention of any terms and conditions prescribed by regulations under the proviso to the section shall be punishable with fine which may extend to (twenty five thousand rupees) and in the case of a continuing offence, with further fine which may extend to (one thousand two hundred and fifty rupees) for every day during which such offence continues after conviction for the first commission of the offence. (3) Any person who obstructs the entry of a person authorized under Section 25 to enter into or upon any land or building or molests such person after such entry shall be punishable with imprisonment for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.” 8. From a combined reading of Sections 14 and 15 of the Act, it reveals that the aforesaid section provide for development of land with the permission of the Vice Chairman and it do not provide for levy of development of fee on those who had applied for permission. 9. The only provisions, which deal with fee are Sections 20, 33, 35 an 39 of the Act but these Sections do not provide for development fee. They provided for different kinds of levy. Therefore, on the basis of Section 14, 15 and 26 of the Act, it is quit clear that no person can make any construction on any land within the development area unless, he gets approval of the map for construction from the Vice Chairman of the authority and construction of the building without such approval is an offence under Section 26, which can be compounded under Section 32 of the Act on such tems including the terms as regards payment of compensation fee, as the Authority may think fit. Therefore, there is specific provision for imposing compensation fee and no exception can be taken to it. In case, if there is any grievance to the person aggrieved by such fee, it is open to him to challenge it before appropriate forum. 10. Perusal of Section 26 of the Act which is involved in the present case, shows that raising any construction over the land without obtaining permission from the Authority concerned, under Section 14 of the Act would be punishable with fine which may extend to Rs. 50,000/- or further fine which may extend to Rs. 2,500/- for everyday during such period, the offence is continued. Therefore, it is clear that permission for construction of a building over the land is a legal requirement of Act and in the absence of such requirement, if any construction is made incontravention of the provision of Section 26 of the Act would be an offence then there will be a complaint to be filed by the Development Authority (respondent No. 2 – M.D.D.A) before the court of competent jurisdiction. 11. As far as the merit of the case is concerned, after considering the material available on record, I am of the view that the factual aspect of this case needs evidence to be adduced by the parties before the court concerned and the trial court after considering the evidence on record will decide the matter in accordance with law. I am not supposed to embark upon an enquiry with regard to the accusation of the petitioner at this stage, as any judgment rendered by me would amount to pre-trial. Therefore, in view of the above facts as well as the submission raised by learned counsel for the petitioner, I don not find any abuse of process of court in this case and no flagrant injustice is also going to be caused to the petitioner in case, if the proceedings under Section 26 of the Act is allowed to be continued before the court concerned. 12. With the aforesaid observation, the petition under Section 482 Cr.P.C. is dismissed. 13. Sty order dated 30.09.203 stands vacated. (B.C. Kandpal, J.) 02.01.2008 ASWAL