- (1.) AMAR Saran, J. Applicant Shankar Lal has made this application under Section 482 of Cr. PC. to quash all criminal proceedings passed on the complaint dated 3. 11. 2006 and summoning order dated 5. 11. 2007 passed by Chief Judicial Magistrate, Mahoba in criminal case No. 2164 of 2006, Krishna Bihari Nagaich and others v. P. K. Dixit and others under Sections 218, (200 and 420, IPC.
(2.) APPLICATION has been made on the following grounds : That the opposite party No. 2 made the aforesaid criminal complaint in the Court of Chief Judicial Magistrate, Mahoba with the accusation against the applicant and two others. As per this complaint, opposite party No. 2 is the owner and in possession of bhumidhar land bearing khasra No. 1714/1 measuring 0. 040 hectares in District Mahoba. This land is his ancestral property. This value of land has gone up as it is situate in the middle of abadi. Applicant Shankar Lal had an evil eye on this land and wanted to usurp the same. Applicant, in order to usurp the land, made an application before the Prescribed Authority Viniyamit Kshetra, Mahoba', on the basis of a sale deed executed in favour of his mother and wife, for construction over the land. The Prescribed Authority called for the report of Tehsil. The work of sanctioning of plan in the office of Prescribed Authority is being looked after by Junior Engineer P. K. Dixit and Clerk Ashok Kumar Shukla. Report of the Tehsil indicates that the construction was sought over the plot No. 1714. P. K. Dixit and Ashok Kumar Shukla in collusion with the applicant Shankar Lal got the map sanctioned in the name of the mother and wife of applicant on 4. 1. 2003. Applicant has started construction and when the opposite party No. 2 saw the building material lying over his plot No. 1714/1, he objected and went to the office of Prescribed Authority and tried to inspect the record. P. K. Dixit and Ashok Kumar Shukla did not allow him to inspect the record and when after making repeated efforts he could inspect the record, he found that index of the file was changed and report of Bhulekh Nirikshak was missing. He had made a questionnaire in the office of the Prescribed Authority, which was not suitably replied. The opposite party No. 2 has suffered irreparable loss due to the conspiracy hatched by applicant Shankar Lal, Junior Engineer P. K. Dixit and Clerk Ashok Kumar Shukla. The case of the applicant is that mother of the applicant Smt Putli Bai and his wife Smt. Vandana are the owners of plot No. 1713/1 situate at Mohal Kashi Prasad, Tehsil and District Mahoba. They had purchased this plot through registered sale deed dated 19. 1. 1989 from one Thakur Singh, who had purchased this plot through registered sale deed dated 5. 7. 1950 from Prem Narain and Durga Prasad. The said plot is situate in the Regulated Area, Mahoba under U. P. (Regulation, of Building Operation) Act, 1958. Smt. Putli Bai and Smt. Vandana moved an application for sanctioning of map before the Prescribed Authority/sdm, Regulated Area, Mahoba, which was sanctioned vide order dated 4. 1. 2003. The opposite party No. 2 is the co-sharer of plot No. 1714/1 adjacent to plot No. 1713/1 purchased by Smt. Putli Bai and Smt. Vandana. The opposite party No. 2 against the order of Prescribed Authority dated 4. 1. 2003, by which the map for construction of Smt. Putli Bai and Smt. Vandana was approved, filed a civil suit No. 146 of 2004, Uma Shankar and others v. Shankar Lal, in the Court of Civil Judge (Junior Division), Mahoba on the ground that Smt. Putli Bai and Smt. Vandana got their map sanctioned by giving wrong facts and prayed for interim injunction on the ground that the land falls in plot No. 1714/1 owned by opposite party No. 2. The written statement was filed on behalf of the owner of plot No. 1713/1 denying the plaint allegations. No interim injunction was granted to opposite party No. 2 in that civil suit. This suit, as per copy of the plaint annexed with the application, was filed on 26. 7. 2004. Opposite party No. 2, thereafter on 10. 9. 2004, made an application before the Prescribed Authority, Regulated Area Mahoba under Sections 17-Aand 10 of U. P. (Regulation of Building Operation) Act, 1958 on the same ground taken by him in civil suit No. 146 of 2004 and also prayed that the Prescribed Authority must restrain construction over the plot till the disposal of suit No. 146 of 2004. This application was made on 10. 9. 2004. The Prescribed Authority on 10. 9. 2004 passed an order restraining further construction and for maintaining the status quo and issued the notice on 18. 9. 2004 to the owner of the plot No. 1713/1. Against the order dated 10. 9. 2004 of the Prescribed Authority, Smt. Putli Bai and Smt. Vandana filed a Civil Misc. Writ Petition No. 40871 of 2004 before this Court and this Hon'ble Court vide order dated 1. 10. 2004 stayed the operation of the orders dated 10. 9. 2004 and 18. 9. 2004 passed by the Pre-scribed Authority and also observed that during the pendency of civil suit 146 of 2004 the Prescribed Authority has no jurisdiction to pass any interim order in the matter. The copy of the order has been annexed as Annexure No. 6 to the affidavit filed with the application. As a consequence of the order dated 1. 10. 2004 passed by the Hon'ble High Court, Prescribed Authority consigned the record. The opposite party No. 2, concealing all the relevant facts, filed an appeal against the order of the Prescribed Authority sanctioning the map of Smt. Putli Bai and Smt. Vandana before the Appellate Authority. The Appellate Authority on 18. 2. 2005 again by an interim ex parte order stopped the construction of plot No. 1713/1. Against this order of Appellate Authority, again Smt. Putli Bai and another preferred Writ Petition No. 15766 of 2005 before the Hon'ble High Court. Again the Hon'ble High Court vice order dated 9. 3. 2005 stayed the operation of the order dated 18. 2. 2005 of the Appellate Authority. The learned Chief Judicial Magistrate after recording the statement of opposite party No. 2 under Section 200, Cr. P. C. passed an order dated 23. 5. 2007 that because the facts of the complaint case are based on documentary evidence, which are related to Revenue Department and accused persons are Government servants, it would be proper to get the matter investigated by Sub Divisional Magistrate or Additional District Magistrate under Section 202, Cr. P. C. In compliance of the order dated 23. 5. 2007, Additional District Magistrate. submitted his report dated 21. 6. 2007 to learned Chief Judicial Magistrate, a copy of which has been appended as Annexure 12 to the affidavit filed with the application. As per this report, Smt. Putli Bai and Smt. Vandana had made an application for sanctioning a plan and applicant Shankar Lal had not made any application for the same. A perusal of the record suggests that no index was made in the file and as per the report of the Lekhpal in Gata No. 1714/1 measuring 0. 085 hectare abadi was entered, which was in the name of many tenure holders and as per the record approved map of Smt. Putli Bai and Smt. Vandana, the approval for construction was given in plot No. 1713/1 and not in plot No. 1714/1, butin the approved map the plot number was not mentioned. It was further mentioned that on 4. 1. 2003 when the map was approved, Junior Engineer P K. Dixit was not posted in the District and the report was made by one Srikrishan Prajapati. It was further observed in the report dated 21. 6. 2007 of Additional District Magistrate that as per report dated 18. 6. 2007 of Lekhpal, on spot inspection by him, the house of Smt. Putli Bai and Smt. Vandana was not situate in plot No. 1714. Their house was situate in plot No. 1713 and the opposite party No. 2 could know the exact position of his plot by getting the same demarcated. . The learned Magistrate, after perusal of this report, vide judgment and order dated 5. 11. 2007 summoned the applicant and two others to face trial under Sections 218,200 and 420, IPC on the ground that prior precautions, which were to be taken at the time of approval of map, were not taken. Copy of the order dated 5. 11. 2007 has been annexed as Annexure 13 to the affidavit filed with the application.
(3.) THE opposite party No. 2 filed the counter-affidavit of his son Sri Shailesh Nagaich. THE case of opposite party No. 2 is that opposite party No. 2 and his predecessor are tenure holders of plots No. 1714/1, 1715/1 and some other plots situate at Mohal Kashi Prasad, Tehsil and District Mahoba, That Smt. Putli Bai, wife of Ram Das and Smt. Vandana, wife of applicant Shankar Lal submitted a building plan for sanction from the Prescribed Authority on the application. Report from Revenue Inspector (Kanoongo) was sought about the land on which the building was proposed to be constructed. THE Kanoongo submitted the report that the land, over which the construction is sought, situate in plot No. 1714. THE Prescribed Authority sanctioned the plan on 4. 1. 2003. THE applicant started construction over Aaraji No. 1714, which is owned by opposite party No. 2 and his other co-tenure holders. Opposite party No. 2 and one other co-tenure holder Uma Shankar filed civil suit No. 146 of 2004 in the Court of Civil Judge, Mahoba against the above named two ladies. However, no injunction was granted. It was stated in reply filed by the applicant in the suit that the land is part of the plot No. 1714, which Smt. Putli Bai and Smt. Vandana had purchased from heirs of Thakur Singh. THE two ladies are not the owners of plot No. 1714 over which they are raising construction. THEreafter, the opposite party No. 2 moved an application dated 10. 9. 2004 before the Prescribed Authority and the Prescribed Authority passed the order on application directing the parties to maintain status quo on the spot and also issued notices. When opposite party No. 2 made an application on 21. 12. 2005 in the office of Prescribed Authority for issuance of copy of Prapatra and copy submitted by Kanoongo, accused Ashok Kumar Shukla made a report that the file had been consigned. Wrong replies were given to the questionnaire made by opposite party No. 2. He had asked ten questions, out of which reply of only three questions were given and it was stated that question Nos. 1 to 7 relate to Revenue Department. THE rest of the allegations made by the applicant are denied. Copy of khatauni of plot No. 1714 and copy of objections filed by Smt. Putli Bai and Smt. Vandana in the aforesaid civil suit alongwith the affidavit have been annexed with the application. THEreafter, the opposite party No. 2 made the aforesaid complaint and, as stated above, the Chief Judicial Magistrate has summoned the accused persons. Rejoinder affidavit has been filed denying the case of opposite party No. 2. Learned Counsel for the applicant has contended that in view of the above facts, it appears that the whole controversy is about the fact whether the wife of applicant Smt. Vandana and his mother Smt. Putli Bai are raising construction over the plot purchased by them bearing plot No. 1713/1 or over the plot No. 1714/1, which is owned by opposite party No. 2 and other co-tenure holders. The applicants have started construction over their own plot after getting the map sanctioned by Prescribed Authority. The question whether the land over which the constructions are going on, as suggested by the learned ADM, can be decided only by getting the boundaries of plot No. 1714/1 demarcated. The opposite party No. 2 has already filed a civil suit and had been contesting the matter before the Prescribed Authority and the Appellate Authority. When he failed in his attempts, as no interim injunction was granted to the opposite party No. 2 in the civil suit filed by him, after a lapse of about two years, he filed the complaint case with mala fide intent and malice for wreaking vengeance and to cause harm to the applicant. Dispute of civil nature has been given the colour of a criminal case.;