SATENDRA KUMAR TIWARI Vs. STATE OF BIHAR

JUDGEMENT

(1.) This application has been filed by the petitioners under Section 482 of Cr.P.C. for quashing the order dated 21.09.2012 taking cognizance of offence under Section 353 of the Indian Penal Code and under Section 313 of Bihar Municipality Act, 2007 by Judicial Magistrate, 1st Class, Gopalganj in Gopalganj Town P.S. Case No.213/12.

(2.) A brief fact giving rise to the case is that Executive Officer of Nagar Parishad, Gopalganj, lodged a case against these petitioners alleging therein that they were constructing their house in Ward No.10 without procuring sanction of the map of the house by the concerned authority, the Executive Officer of Gopalganj Municipality, which is violation of Section 313 of the Bihar Municipal Act, 2007 (hereinafter to be referred to as the Act ) a cognizable offence, so requested to stop the construction of the house.

(3.) It is submitted by the learned counsel for the petitioners that the land over which construction is being made stands recorded in land records in the name of Ram Prasad Tiwari, father of the petitioner, who is still alive. He also refers to Annexure-3 rent receipt paid by the petitioners father and house is being constructed after sanction given by the Municipal Authority. Sanction was granted on 31.01.2012 and refers Annexure-4 so factually it is not correct that any house was being constructed without sanction of the map, hence there is no violation of the provision under Section 313 of the Act. Further, notice as contained in Annexure-2 was issued by the Nagar Parishad, Gopalganj under Section 319 of the Act asking the petitioners to appear and give explanation with regard to undergoing construction without sanction of the map. The said notice was issued on 16.06.2012 and the F.I.R. of the present case was also lodged on the same day by the Executive Officer, Nagar Parishad, Gopalganj, by giving written information to the Officer in-Charge, Town P.S. Gopalganj. So, in fact, no opportunity was given to the petitioners to submit their explanation under the provision of the Act. Further submission is that this Court by order dated 11.08.2014 had given directions to the learned A.P.P. to seek instruction for filing counter affidavit but no instruction has been obtained so far and no counter affidavit has been filed controverting averments made in the quashing application.