JUDGMENT
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 non-cooperation of the officials of opposite party.
5. The learned A.G.A. submitted that the provisions of Section 27 have come into force and an order passed under Section 27 of the Act is appealable.
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.
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 Vice-Chairman 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, shall-
(i) either make necessary modifications in the proposal for development to meet the objections raised by the Vice-Chairman; 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 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 subsection (1) may be completed by that department or local authority with compliance with the requirements of subsections (1) and (2).
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.
6. 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.
7. 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.
8. 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. 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 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 v. Bhajan Lal 1992 Supp (1) SCC 335 (Cri) 426 as hereinunder:
(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 then-entirety do not prima facie constitute any offence or make out a case against the accused.
(2) Where the allegations in the first information 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. v. 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 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.
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 of 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.