NIJAMUDDIN Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) This miscellaneous petition is directed against the order dated 14-10-93, passed by the Munsif and Judicial Magistrate, First Class, Bilara (Camp Pipar City), by which the learned Magistrate took cognizance against the petitioners for the offence under S. 203 of the Rajasthan Municipalities Act and issued bailable warrant in the sum of Rs. 3000.00 for procuring the presence of the accused-petitioner.

(2.) Anoop Singh filed a complaint under S.341, I.P.C. and Ss.l17 and 203 of the Rajasthan Municipalities Act against the petitioner Nijamuddin and the proprietors of Pathan Auto Service, Bus Stand, Bilara, and Kureshi Transports, Bus Stand, Bilara, in the Court of the Munsif and Judicial Magistrate, First Class, Bilara. It was alleged in the complaint that the complainant is the owner of the land bearing Khasra Number 1978 of Bilara Chak Number 1, which abuts on public way. An obstruction over this land was made by Nijamuddin on 4-6-81, by raising constructions of the shops measuring 14'x 26'. The construction of these two shops have been made by Nijamuddin without taking any permission from the Municipal Board and he has given one shop on rent to Pathan Auto Service, Bus Stand, Bilara, and the other shop to Kureshi Transport Company, Bus Stand, Bilara, who are in the possession of these shops. Nijamuddin has applied for conversion of this land in the office of the Additional District Magistrate (Land Conversion), Jodhpur, and the land was converted and the Patta was issued in his favour, which was challenged by the complainant in a revision petition before the Board of Revenue, Rajasthan, Ajmer. The revision petition, filed by the complainant, was allowed and the Patta, granted in favour of Nijamuddin was cancelled. Nijamuddin filed a Special Appeal before the Board of Revenue, which was also dismissed. He challenged the order passed by the Board of Revenue before the High Court by way of filing a writ petition and the writ petition, filed by Nijamuddin, was also dismissed. The petitioner was held to be trespasser by the Board of Revenue as well as by the High Court and on that basis the order under challenge was cancelled. It has, also been averred in the complaint that in spite of the judgments against him, Nijamuddin or his tenants have not removed the obstruction on the public way and have committed a criminal trespass and, therefore, the cognizance may be taken against them and they may be tried and after trial adequately punished. The learned Magistrate sent the complaint for investigation under S. 156(3), Cr. P.C. to the Station House Officer, Police Station, Bilara, who, after investigation, presented the final report. After the receipt of the final report, the learned Magistrate issued notice to the complainant. After the service of the notice, complainant Anoop Singh was examined as P.W. 1. Thereafter the learned Magistrate refused to take any cognizance under S. 341, I.P.C. and S. l17 of the Rajasthan Municipalities Act, as according to the learned Magistrate the ingredients of these offences were not present, but, however, he took cognizance against the petitioner for the offence under S. 203 of the Rajasthan Municipalities Act as according to the learned Magistrate the petitioner has made encroachment on the public way. The Court after taking cognizance issued bailable warrant to procure the presence of the accused-petitioners.

(3.) It is contended by the learned counsel for the petitioners that for the offence under S. 203 of the Rajasthan Municipalities Act, it is only the Municipal Board which can file a complaint and any individual has no locus standi to file a complaint and, therefore, the learned Magistrate committed an error in taking the cognizance against the petitioners on a complaint filed by an individual who has no locus standi to file the same. So far as the dispute between the petitioners and the complainant is concerned, that, at the best, can be said to be a civil dispute and no action can be taken against the petitioners under the Criminal Law and the petition, therefore, deserves to be dismissed and the order passed by the learned Magistrate deserves to be quashed.