# Sri Ram Pathak and others v. State of U.P. and others

- **Citation:** (2008) 1 ILRA 161
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2007-10-30
- **Case number:** Criminal Misc. Application No. 12908 of 1988
- **Bench:** Mrs.) Saroj Bala
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sri-ram-pathak-and-others-v-state-of-u-p-and-others-41260
- **Pages:** 6

## Headnote

Sri Navin Sinha
A.G.A.

Uttar
Pradesh
Urban
Planning
&
Development Act, 1973, Section-26 (2)-
complaint
by
development
authority
Bareilly-for
contravention
of
use
of
residential
building-while
the
said
building
was
already
used
in
contravention
prior
to
the
commencement of Act-No offence made
out-proceeding quashed.

Held: Para 13

The
facts
set
out
in the Criminal
complaint
are
that
a
portion
of
residential premises of applicant was
found in use for commercial purpose at
the time of visit of the Junior Engineer of
Bareilly
Development
Authority
on
2.8.1984. The demised premises having
been let out to United India Insurance
Company prior to the notification of
162 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
constitution
Bareilly
Development
Authority and enforcement of Master
plan the use of building was not in
contravention of provisions of Section 16
of the Act. The allegations made in the
complaint taken as a whole do not
constitute the offence under Section 26
(2) of the Act. In view of the foregoing
discussion, the application is allowed.
The above mentioned Criminal complaint
and further proceedings in consequence
thereof are quashed.
Case law discussed:
1992 Supp. (1) SCC (Crl.) 426, 2004 (1) SCC ?

## Text

1 All] Sri Ram Pathak and others V. State of U.P. and others
161
management. The apex Court in the case
of The Govt. Branch Press and another
Vs. D.B. Belliappa, reported in AIR 1979
SUPREME
COURT
429
held
that
accepting the submission that services
have been terminated without any reason
shall be nothing but accepting that the
power has been exercised by the employer
arbitrarily. Following was observed in
paragraph 26:

" .......But it will be hazardous for us
to base out decision on any such
speculation, when the appellant, himself
instead of taking any such plea, has, with
obdurate persistency stuck to the position
that the respondent's service has been
terminated without any reason which
comes perilously near to admitting that
the power reserved to the employer under
the conditions of the employment, has
been exercised arbitrarily."

9. Thus, the submission of learned
Counsel for the Respondent that the
management even without reason can
terminate the services of Part Time
Teacher, cannot be accepted. In view of
the above, the order impugned cannot
sustain and hereby set aside.

10. With regard to the petitioner
No.3,
learned
Counsel
for
the
Management has submitted that the
petitioner no. 3 has accepted notice
amount without any protest and since he
has accepted the amount without any
protest, he is not entitled for any
protection. Learned counsel for the
petitioner has not been able to show any
material that the said amount was
accepted under protest. The notice amount
having been accepted by the petitioner
No. 3 without any protest, he is not
entitled for any protection and so far as
writ petition with regard to the petitioner
no. 3 is concerned, it is dismissed.
11. The writ petition is partly
allowed.
---------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 30.10.2007

BEFORE
THE HON'BLE (MRS.) SAROJ BALA, J.

Criminal Misc. Application No. 12908 of
1988

Smt. Shashi Mathur

...Applicant
Versus
Chief Judicial Magistrate, Bareilly and
another

...Respondents

Counsel for the Applicant:
Sri Dilip Kumar
Sri Rajiv Gupta

Counsel for the Respondents:
Sri Navin Sinha
A.G.A.

Uttar
Pradesh
Urban
Planning
&
Development Act, 1973, Section-26 (2)-
complaint
by
development
authority
Bareilly-for
contravention
of
use
of
residential
building-while
the
said
building
was
already
used
in
contravention
prior
to
the
commencement of Act-No offence made
out-proceeding quashed.

Held: Para 13

The
facts
set
out
in the Criminal
complaint
are
that
a
portion
of
residential premises of applicant was
found in use for commercial purpose at
the time of visit of the Junior Engineer of
Bareilly
Development
Authority
on
2.8.1984. The demised premises having
been let out to United India Insurance
Company prior to the notification of
162 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
constitution
Bareilly
Development
Authority and enforcement of Master
plan the use of building was not in
contravention of provisions of Section 16
of the Act. The allegations made in the
complaint taken as a whole do not
constitute the offence under Section 26
(2) of the Act. In view of the foregoing
discussion, the application is allowed.
The above mentioned Criminal complaint
and further proceedings in consequence
thereof are quashed.
Case law discussed:
1992 Supp. (1) SCC (Crl.) 426, 2004 (1) SCC ?

(Delivered by Hon'ble (Mrs.) Saroj Bala, J.)

1. By means of this application
under Section 482 Cr.P.C. the applicant
prays
for
quashing
the
Criminal
Complaint No. 4434 of 1987 instituted by
Bareilly Development Authority, Bareilly
and
the
proceedings
initiated
in
consequence thereof, pending in the Court
of Chief Judicial Magistrate, Bareilly.

2. The back up facts giving rise to
these proceedings are:-

A Criminal compliant was instituted
by the Bareilly Development Authority
against the applicant with the allegations
that on 2.8.1984 at about 11 A.M. Sri Y.P.
Singh,
Junior
Engineer
visited
her
premises No. 35-11/B, Rampur Bagh,
Police Station Kotwali Bareilly situated
within development area. The said area
was meant for residential land use in the
Master plan. On inspection the Junior
Engineer found that the applicant, owner
of the residential house had let out the
first floor about six months before to
Regional office of United India Insurance
Company for commercial purpose. The
use
of
residential
premises
for
commercial purpose contravened the land
use mentioned in the Master plan and
constituted an offence punishable under
Section 26 (2) of Uttar Pradesh Urban
Planning and Development Act., 1973
(hereinafter referred to as the 'Act').

3. Heard Sri Rajiv Gupta holding
brief of Sri Dilip Kumar, learned counsel
for the applicant, the learned A.G.A. and
have perused the record. Sri Naveen
Sinha, learned counsel for the opposite
party No. 2 did not appear to make
submissions.

4. The- learned counsel for the
applicant submitted that the contract of
tenancy was entered into between the
applicant and the Regional Manager of
United India Insurance Company on
24.10.1973. In pursuance of Sections 3
and
4
of
the
Act
the
Bareilly
Development Authority was constituted
vide Gazette notification dated 20.4.1977
and
vide
Government
Order
dated
29.8.1978 the Master plan was approved
by the State Government. The Act came
into force on 15.8.1974. The contention
was that a portion of the house was being
used for commercial purpose since before
the coming into force of Master plan. It
was argued that the proviso appended to
Section 16 embodies that in cases where
the building is being used for some
purpose prior to coming into force of the
Act it shall be lawful to use it for the same
purpose. Lastly it was canvassed that the
offence under Section 26 (2) of the Act
are compoundable under Section 32 but
efforts made by the applicant to have the
matter compounded failed due to noncooperation of the officials of opposite
party.

5. The learned A.G.A. submitted
that the provisions of Section 27 have
1 All] Smt. Shashi Mathur V. C.J.M., Bareilly and another
163
come into force and an order passed under
section 27 of the Act is appealable.

6. Section 3 of the Act provides for
declaration of development area. If in the
opinion of the State Government any area
within the State requires to be developed
according to plan it may, by notification
in the Gazette, declare the area to be a
development area. Section 4 of the Act
embodies that the State Government may
by notification in the Gazette, constitute
for the purposes of this Act, an Authority
to be called the Development Authority
for any development area. The Authority
shall be a body corporate, by the name
given to it in the said notification, having
perpetual succession and a common seal
with power to acquire, hold and dispose
of
property,
both
moveable
and
immovable and to contract and shall by
the said name sue and be sued.

7.

Section
14
deals
with
development of land in developed area
and reads as below:-

"(1) After the declaration of any area
as development area under Section 3, no
development of land shall be undertaken
or carried out or continued in that area by
any
person
or
body
(including
a
department
of
Government)
unless
permission for such development has
been obtained in writing from the ViceChairman
in
accordance
with
the
provisions ·of this Act.
(2) After the coming into operation
of any of the plans in any development
are no development shall be undertaken or
carried out or continued in that area
unless such development is also in
accordance with such plans.
(3)
Notwithstanding
anything
contained in sub-sections (1) and (2), the
following provisions shall apply in
relation to development of land by any
department of any State Government or
the Central Government or any local
authority-

(a) when any such department or local
authority intends to carry out any
development of land it shall inform the
Vice-Chairman in writing of its intention
to do so, giving full particulars thereof,
including any plans and documents, at
least 30 days before undertaking such
development;
(b) in the case of a department of any
State
Government
or
the
Central
Government, if the Vice Chairman has no
objection
it
should
inform
such
department of the same within three
weeks from the date of receipt by it under
clause (a) of the department's intention,
and if the Vice-Chairman does not make
any objection within the said period the
department shall be free to carry out the
proposed development.
(c) where the Vice-Chairman raises any
objection to the proposed development on
the ground that the development is not in
conformity with any Master Plan or zonal
development plan prepared or intended to
be prepared by it, or on any other ground,
such department or the local authority, as
the case may be, sha11-

(i) either make necessary modifications
in the proposal for development to meet
the objections raised by the ViceChairman; or
(ii) submit the proposals for development
together with the objections raised by the
Vice-Chairman to the State Government
for decision under clause (d);

(d) the State Government, on receipt of
proposals for development together with
164 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
the objections of the Vice-Chairman, may
either approve the proposals with or
without modifications or direct the
department or the local authority, as the
case may be, to make such modifications
as proposed by the Government and the
decision of the State Government shall be
final;
(e) the development of any land begun by
any such department or subject to the
provisions of Section 59 by any such local
authority before the declaration referred
to in sub-section (1) may be completed by
that department or local authority with
compliance with the requirements of
subsections (1) and (2)."

8. Section 16 of the Act provides
that after the coming into operation of any
of the plans in a zone no person shall use
or permit to be used any land or building
in that zone otherwise than in conformity
with such plan. The proviso appended to
this Section embodies that it shall be
lawful to continue to use, upon such terms
and conditions as may be prescribed by
bye-laws made in that behalf, any land or
building for the purpose and to the extent
for and to which it is being used upon the
date on which such plan comes into force.

9. In the present case the contract of
tenancy between the applicant and United
India Insurance Company came into force
on 24.10.1973. The Bareilly Development
Authority
was
constituted
vide
Government notification dated 20.4.1977.
The Master plan was approved by the
State Government vide Government order
dated 29.8.1978. The premises in question
were being used for office purpose by the
United India Insurance Company before
coming into operation of the Master plan
and constitution of Bariely Development
Authority. The proviso appended to
Section 16 of the Act authorises the use of
any land or building for the purpose and
to the extent for and to which it is being
used upon the date on which such plan
comes into force subject to such terms
and conditions as may be prescribed by
bye-laws made in that behalf.

10. Section 26 (2) of the Act
contains the penalties for the use of any
land or building in contravention of
provisions of Section 16 of the Act and
provides that any person who uses any
land or building in contravention of any
terms and conditions prescribed by
regulations under the proviso to that
Section shall be punishable with fine
which may extend twenty-five thousand
rupees and in case of 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.

11. A portion of residential building
of applicant was in use for commercial
purpose prior to the constitution of
Bareilly Development Authority and
coming into force of Master plan,
therefore, the use of the building cannot
be said to be in contravention of Master
plan and no offence under Section 26 (2)
of the Act is made out.

12. The inherent powers under
section 482 Cr.P.C. can be exercised to
quash the proceedings: (i) where it
manifestly appears that there is a legal bar
against the institution or continuance e.g.
want
of
sanction;
(ii)
where
the
allegations in the First Information Report
or complaint taken at their face value and
accepted in their entirety do not constitute
the offence alleged; (iii) where the
1 All] Smt. Shashi Mathur V. C.J.M., Bareilly and another
165
allegations constitute an offence, but there
is no legal evidence adduced or the
evidence adduced clearly or manifestly
fails to prove the charge. The scope of
exercise of power under section 482 of
the Code and the categories of cases
where this court may exercise its power
under it relating to cognizable offences to
prevent abuse of process of court or
otherwise to secure the ends of justice
have been set out by the Apex Court in
the case of State of Haryana Vs. Bhajan
Lal 1992 Supp (1) SCC 335 (Cri) 426 as
herein under:

"(1) Where the allegations made in
the first information report or the
complaint, even if they are taken at their
face value and accepted in their entirety
do not prima facie constitute any offence
or make out a case against the accused.
(2) Where the allegations in the first
infom1ation report and other materials, if
any, accompanying the First Information
Report do not disclose a cognizable
offence, justifying an investigation by
police officers under section 156 (1) of
the Code except under an order of a
Magistrate within the purview of Section
155 (2) of the Code.
(3)
Where
the
uncontroverted
allegations made in the First Information
Report or complaint and the evidence
collected in support of the same do not
disclose the commission of any offence
and make out a case against the accused.
(4) Where the allegations in the First
Information Report do not constitute a
cognizable offence but constitute only a
non-cognizable offence, no investigation
is permitted by a police officer without an
order of a Magistrate as contemplated
under Section 155(2) of the Code.
(5) Where the allegations made in the
First Information Report or complaint are
so absurd and inherently improbable on
the basis of which no prudent person can
ever reach a just conclusion that there is
sufficient ground for proceeding against
the accused.
(6) Where there is an express legal
bar engrafted in any of the provisions of
the Code or the Act concerned (under
which a criminal proceeding is instituted)
to the institution and continuance of the
proceedings and/or where there is a
specific provision in the Code or the Act
concerned, providing efficacious redress
for the grievance of the aggrieved party.
(7) Where a criminal proceeding is
manifestly attended with malafides and/
or where the proceeding is maliciously
instituted with an ulterior motive for
wreaking vengeance on the accused and
with a view to spite him due to private
and personal grudge."

In State of M.P. Vs. Awadh Kishore
Gupta (2004) 1 SCC, the Apex Court has
held as follows:

"The section does not confer any
new powers on the High Court. It only
saves the inherent power which the Court
possessed before the enactment of the
Code. It envisages three circumstances
under which the inherent jurisdiction may
be exercised, namely, (i) to give effect to
an order under the Code, (ii) to prevent
abuse of the process of court, and (iii) to
otherwise secure the ends of justice. It is
neither possible nor desirable to lay down
any inflexible rule which would govern
the exercise of inherent jurisdiction. No
legislative
enactment
dealing
with
procedure can provide for all cases that
may possibly arises Courts, therefore,
have inherent powers apart from express
provisions of law which are necessary for
proper discharge of functions and duties
166 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
imposed upon them by law. That is the
doctrine which finds expression in the
section which merely recognizes and
preserves inherent powers of the High
Courts. All Courts, whether civil or
criminal, possess, in the absence of any
express provision, as inherent in their
constitution, all such powers as are
necessary to do the right and to undo a
wrong in the course of administration of
justice on the principle quando lex aliquid
alicui concedit, concedere videtur id sine
quo res ipse esse non potest (when the law
gives a person anything it gives him that
without which it cannot exist). While
exercising powers under the section, the
Court does not function as a court of
appeal or revision. Inherent jurisdiction
under the section though wide has to be
exercised sparingly, carefully and with
caution and only when such exercise is
justified by the tests specifically laid
down in section itself. It is to be exercised
ex debito justitiae to do read and
substantial justice for the administration
of which alone courts exist. Authority of
the court exists for advancement of justice
and if any attempt is made to abuse that
authority so as to produce injustice, the
court has power to prevent such abuse. It
would be an abuse of process of the court
to allow any action which would result
injustice and prevent promotion of justice.
In exercise of the powers, court would be
justified to quash any proceeding if it
finds that initiation/continuance of it
amounts to abuse of the process of court
or quashing of these proceedings would
otherwise serve the ends of justice. When
no offence is disclosed by the complaint,
the court may examine the question of
fact. When a complaint is sought to be
quashed it is permissible to look into the
materials to assess what the complainant
has alleged and whether any offence is
made out even if the allegations are
accepted in toto."

13. The facts set out in the Criminal
complaint are that a portion of residential
premises of applicant was found in use for
commercial purpose at the time of visit of
the
Junior
Engineer
of
Bareilly
Development Authority on 2.8.1984. The
demised premises having been let out to
United India Insurance Company prior to
the notification of constitution Bareilly
Development Authority and enforcement
of Master plan the use of building was not
in contravention of provisions of Section
16 of the Act. The allegations made in the
complaint taken as a whole do not
constitute the offence under Section 26
(2) of the Act. In view of the foregoing
discussion, the application is allowed. The
above mentioned Criminal complaint and
further
proceedings
in
consequence
thereof are quashed. Application Allowed.
---------
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 31.01.2008

BEFORE
THE HON'BLE A.P. SAHI, J.

Criminal Misc. Writ Petition No.712 of
2008

Bhagwati Prasad

...Petitioner
Versus
State of U.P. and another ...Respondent

Counsel for the Petitioner:
Sri Ravi Chandra Srivastava

Counsel for the Respondents:
Sri A.K. Yadav
A.G.A.

Code of Criminal Procedure-146 (3)-
Attachment of Property-civil suit as well