KAUSHIK NANUBHAI MAJITHIA vs STATE OF GUJARAT

R/CR.MA/8473/2018 (GJHC240272022018) JUDGMENT DATED: 07/09/2026
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
FIR/ORDER) NO. 8473 of 2018

FOR APPROVAL AND SIGNATURE:


HONOURABLE MR.JUSTICE P. M. RAVAL

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Approved for Reporting Yes No
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KAUSHIK NANUBHAI MAJITHIA
Versus
STATE OF GUJARAT & ORS.
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Appearance:
DHRUVIN P BHUPTANI(8295) for the Applicant(s) No. 1
MS ARCHANA U AMIN(2462) for the Respondent(s) No. 3
MR. KM ANTANI, APP for the Respondent(s) No. 1,2
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CORAM: HONOURABLE MR.JUSTICE P. M. RAVAL

Date : 07/09/2026

JUDGMENT
1. By way of this application, the applicant has invoked the
jurisdiction of this Court under Section 482 of the Code of
Criminal Procedure, 1973 (Cr.P.C.), inter alia, praying to quash
and set aside the FIR being C.R. No. II-3055/2018 dated
20.04.2018, registered with Khadiya Police Station, District
Ahmedabad, for the offence punishable under Section 30(B) of
the Ancient Monuments and Archaeological Sites and Remains
Act, 2010.
2. The facts of the case on hand are that, despite there being a
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specific embargo on construction within a 300-metre range of
the protected monuments in the Khadiya area, the applicant
herein commenced construction of a house within 100 metres of
the protected monument, namely, Rani Chippri Masjid, without
obtaining any permission from the Archaeological Department.
Despite notice having been served upon him, the applicant
completed the construction in defiance of the same and thereby
committed the alleged offence, for which the FIR in question
came to be lodged against the applicant.
3. Heard learned advocate for the respective parties and perused
the material on record.
4. Learned advocate for the applicant would submit that the
applicant was served with a notice under Section 264 of the
GPMC Act, inter alia, contending that the property, being a
house, was in a dilapidated condition and that the applicant was
accordingly required to carry out necessary repairs for the
purpose of security and safety.
5. It is further submitted that, with a view to getting the property
in question enlisted again in the new list of heritage properties of
the Ahmedabad Municipal Corporation, the applicant carried out
renovation, repairs and/or reconstruction of the existing
structures and has not raised any new construction on the site.
6. It is further submitted that the notice dated 14.12.2016
issued by the Archaeological Department, i.e. Respondent No.3
herein, was duly replied to by the applicant by communication
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R/CR.MA/8473/2018 (GJHC240272022018) JUDGMENT DATED: 07/09/2026
dated 17.01.2017, categorically stating therein that no new
construction had been raised by the applicant and that only
renovation and repair work had been carried out. It is submitted
that, pursuant to the notice issued under Section 264 of the
GPMC Act by the Ahmedabad Municipal Corporation (“AMC”), no
further communication whatsoever was made thereafter and,
directly thereafter, the FIR in question came to be registered.
7. It is further submitted that, in no manner, the repair and
renovation work undertaken by the applicant falls within the
definition of “construction” as defined under Section 2(dc) of the
Act and, therefore, invocation of Section 30(B) of the Act is
wholly erroneous. Accordingly, it is urged that the present
application may be allowed and the FIR in question may be
quashed and set aside.
8. As against that, learned advocate Ms. Archana U. Amin for
Respondent No.3, while opposing the present application,
vehemently argued that, as per the provisions of the Act, prior
permission is required to be obtained from the Department for
carrying out any construction or repair work if the property is
situated in the regulated area. It is submitted that no such
permission whatsoever has been obtained by the applicant for
carrying out such construction, which is in breach of the
provisions of the Act.
8.1 It is submitted that the applicant, in defiance of the notice
issued, made a false statement in the reply to the effect that no
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R/CR.MA/8473/2018 (GJHC240272022018) JUDGMENT DATED: 07/09/2026
construction had been carried out and, thereby, committed a
breach of the provisions of the Act. It is, therefore, submitted
that it cannot be said that no offence is made out as alleged in
the FIR. Accordingly, it is urged that the present application,
being devoid of merits, deserves to be rejected.
8.2 Learned advocate Ms. Archana U. Amin for Respondent No.3
further submits that, even otherwise, the case does not fall
within the four corners of the principles laid down by the
Hon’ble Supreme Court in the case of Bhajan Lal v. State of
Haryana . Under such circumstances, this Court ought not to
exercise its discretionary jurisdiction in favour of the applicant.
It is, therefore, urged that the present application be rejected.
9. Learned APP Mr. K.M. Antani for the respondent-State, while
concurring with the submissions made by learned advocate for
Respondent No.3, would submit that the discretionary
jurisdiction under Section 482 of the Cr.P.C. is required to be
exercised sparingly and with a view to preventing abuse of the
process of law. He would further submit that, in the present
case, a prima facie case is made out against the applicant, which
is apparent from a bare perusal of the FIR. It is, therefore, urged
that this Court may not exercise its inherent jurisdiction under
Section 482 of the Cr.P.C. and interfere with the present
proceedings.
10. Heard the learned advocates for the respective parties and
perused the material on record.
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11. For analysing the case on hand, it would be apposite to refer
to the decision of the Hon’ble Supreme Court in the case of
State of Haryana v. Bhajan Lal and Others, 1992 Supp. (1)
SCC 335 , wherein, in paragraph 102, the Hon’ble Supreme
Court has enumerated certain categories of cases by way of
illustration wherein the inherent jurisdiction under Section 482
of the Cr.P.C. may be exercised, either to prevent abuse of the
process of any Court or otherwise to secure the ends of justice.
For ready reference, paragraph 102 of the said decision reads as
under:
“ 102. In the backdrop of the interpretation of the various
relevant provisions of the Code under Chapter XIV and of
the principles of law enunciated by this Court in a series of
decisions relating to the exercise of the extraordinary power
under Article 226 or the inherent powers under Section 482
of the Code which we have extracted and reproduced
above, we give the following categories of cases by way of
illustration wherein such power could be exercised either to
prevent abuse of the process of any court or otherwise to
secure the ends of justice, though it may not be possible to
lay down any precise, clearly defined and sufficiently
channelised and inflexible guidelines or rigid formulae and
to give an exhaustive list of myriad kinds of cases wherein
such power should be exercised.
(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
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accused.
(2) Where the allegations in the first information report and
other materials, if any, accompanying the FIR 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 FIR 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 FIR 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 FIR 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 concerned Act 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 concerned Act,
providing efficacious redress for the grievance of the
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aggrieved party.
(7) Where a criminal proceeding is manifestly attended with
mala fide 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.”
12. If the facts of the case on hand are considered in the
aforesaid context, it is the case of the complainant that the
present applicant, in breach of the provisions of the Act as well
as the notification regulating the area, undertook construction
work in violation of the provisions of the Act and thereby
committed an offence punishable under Section 30(B) of the Act.
In the aforesaid backdrop, it would be apposite to refer to the
definition of “construction” as provided under Section 2(dc) and
“repair and renovation” under Section 2(m) of the Act, would be
relevant which reads as under:
(2dc) “construction” means any erection of a structure
or a building, including any addition or extension thereto
either vertically or horizontally, but does not include, any
reconstruction, repair and renovation of an existing
structure or building or, construction maintenance and
cleansing of drains and drainage works and of public
latrines, urinals and similar conveniences, or the
construction and maintenance of works meant for
providing supply of water for public or the construction or
maintenance, extension, management for supply and
distribution of electricity to the public; or provision for
similar facilities for publicity.
(2m) “repair and renovation” means alterations to a per-
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existing structure or building, but shall not include
construction or re-construction.
13. Repair vs. Construction: The law is well-settled that
"repair" or "maintenance" implies restoration of a structure to its
existing state without altering its load-bearing framework,
footprint, or cubic content. The undisputed photographic
evidence on record establishes that the Petitioner did not add
any floor area, alter the building line, or raise the height of the
building. The work executed falls squarely within the scope of
permissible maintenance and restoration.
14. Duty to Ensure Public Safety: The Municipal Corporation
had issued an official notice declaring the premises dilapidated
and unsafe. The Petitioner acted in compliance with statutory
safety obligations to prevent structural collapse. Prosecuting an
occupant for executing basic safety repairs mandated by a local
authority under threat of public hazard would be opposed to the
constitutional guarantees under Article 21.
15. Domain Competence: Vague assertions of "structural
change" in an FIR, without technical foundation, cannot form
the basis of criminal prosecution. Police authorities lack the
technical expertise to decide architectural and structural
parameters. Where the material on record conclusively
demonstrates mere restoration within the existing framework,
subjecting the Petitioner to a criminal trial after nearly nine
years serves no legitimate legal purpose.
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16. The contention of the Respondents that prior permission is
an absolute, non-negotiable prerequisite under Section 20 even
for non-structural, emergency repairs is unsustainable in the
context of criminal prosecution. The statutory scheme under
Section 20 of The Ancient Monuments and Archaeological Sites
and Remains Act, 1958 (herein after referred as AMASR Act for
the sake of brevity) uses the expression "may apply". While the
regulatory process contemplates prior clearance for planned civil
alterations, failing to obtain prior administrative sanction for
emergency wall stabilization—executed strictly to avert an
immediate structural collapse—does not automatically convert a
non-structural repair into a penal offense under Sections
30A/30B. 
17. The penal provisions of a regulatory statute cannot be read
in isolation to compel a citizen into a state of structural peril.
When a statutory Municipal Safety Notice explicitly identifies a
dilapidated wall posing a threat to human life, carrying out
immediate safety restoration constitutes compliance with
statutory safety obligations and an exercise of the fundamental
right to safety guaranteed under Article 21 of the Constitution of
India. The argument that the applicant made a "false statement"
by stating no construction had been carried out is legally flawed
and proceeds on a basic misconstruction of statutory terms. The
prosecution has equated "repair/renovation" with "construction."
Under Section 2(dc) of the AMASR Act, "construction" mandates
an addition, expansion of footprint, increase in height, or
erection of a new structural framework. The Petitioner’s reply to
the department—stating that no fresh construction was
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undertaken—is fully substantiated by the undisputed "before
and after" photographs on record, which confirm that the
horizontal perimeter, structural boundary, and height of the
premises remain completely unchanged. Replacing worn-out
wooden fittings, painting, and applying brick masonry within the
existing framework to stabilize a crumbling wall constitutes
"restoration," not "construction." Therefore, the Petitioner's reply
was factually and legally truthful, and no element of deception or
mens rea exists.
18. Thus, the registration of the FIR fails to appreciate the
absence of mens rea (criminal intent) on part of the Petitioner.
The acts complained of were executed strictly pursuant to a
statutory Safety Notice issued by the Municipal Corporation
under the Provincial Municipal Corporations Act, requiring
immediate abatement of a public hazard posed by a dilapidated
wall. Action taken under statutory compulsion and to avert an
immediate threat to life and public safety cannot be attributed
with criminal intent or penal guilt under Section 30B of The
Ancient Monuments and Archaeological Sites and Remains Act,
1958 (herein after referred as AMASR Act for the sake of
brevity). 
19. The Respondent-Authority acted mechanically and in gross
violation of administrative principles by lodging the FIR without
considering the Petitioner's written reply dated 17.01.2017,
which was submitted prior to the FIR along with the Municipal
Corporation Notice. The investigating agency failed to verify
whether any structural change occurred or to conduct a
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technical assessment before invoking penal machinery,
rendering the initiation of criminal proceedings arbitrary,
premature, and an abuse of the process of law.
20. The allegations in the FIR, even if taken at face value, fail
to disclose the essential ingredients of an offense under Section
30A/30B of the AMASR Act. The work executed was strictly
confined to emergency stabilization, replastering, replacing
wooden fittings, and masonry repair of an existing wall without
adding load-bearing pillars, raising height, or expanding the
horizontal footprint. The work constitutes 'renovation/repair'
and falls outside the statutory definition of 'construction' under
Section 2(dc) of the Act. Consequently, no penal offense is made
out on the face of the record.
21. In the result, the present application is allowed. The FIR
being C.R. No. II-3055/2018 dated 20.04.2018, registered with
Khadiya Police Station, District Ahmedabad and all
consequential proceedings arising thereof are hereby quashed
and set aside. Rule is made absolute.
(P. M. RAVAL, J)
MOHD SAIF ULLAH
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