Gujarat High Court
Bhanubhai Jodhabhai Bharvad vs State Of Gujarat on 22 September, 2021
Author: A.Y. Kogje
Bench: A.Y. Kogje
R/CR.MA/15215/2021 ORDER DATED: 22/09/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 15215 of 2021
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BHANUBHAI JODHABHAI BHARVAD
Versus
STATE OF GUJARAT
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Appearance:
A S TIMBALIA(7372) for the Applicant(s) No. 1
MR SHUSHIL R SHUKLA(5603) for the Respondent(s) No. 1
MR VASANT K BHATT(6163) for the Respondent(s) No. 1
MR L B DABHI, APP (2) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE A.Y. KOGJE
Date : 22/09/2021
ORAL ORDER
1. This is an application by the applicant under Section 438 of the Code of Criminal Procedure, 1973 for anticipatory bail in the event of his arrest in connection with FIR registered as CR-I/ 11204045210417/2021 before Nadiad Rural Police Station, Kheda for the offence under Sections 3, 4(3), 5(c) and 5(d) of the Gujarat Land Grabbing (Prohibition) Act.
2. Learned advocate for the applicant submits that the applicant is falsely implicated in the offence. The applicant is implicated in the offence only because the applicant is socially active person and has many political rivalries.
3. Learned advocate for the applicant submits that so far as the applicant is concerned, false allegations are made out, as there is no shop which exists on the public road, but there are shops existing on Survey No.223 of which the applicant is neither the owner nor the occupier. One Mr.Chandrakant Page 1 of 7 Downloaded on : Sun Jan 16 17:05:51 IST 2022 R/CR.MA/15215/2021 ORDER DATED: 22/09/2021 Sharma is occupying the said shops and he is the power of attorney holder of original owner of Survey No.223. It is submitted that said Mr.Sharma has also received the permission from the Gram Panchayat for putting up the shops and construction.
4. Learned advocate for the applicant submits that the construction, if any, is only of the wall of temple premises which is build by the applicant, however, such wall is not constructed on any public road much less is causing any hindrance to public at large.
5. Learned advocate for the applicant, has thereafter, submitted that the applicant is ready and willing to give declaration that he has no objection, if such shops are demolished and as such the declaration is already given by the applicant before the concerned Sessions Court.
6. Lastly, the learned advocate for the applicant submitted that the applicant being aged person of 62 years may be enlarged.
7. Learned APP opposes the grant of application by submitting that prima faice, there is sufficient evidence that it is at the behest of the applicant that construction is made on the road and though Survey No.223 is of private ownership of someone else, the construction has taken place on the road is apparent as well as on the main Nadiad-Kapadwanj Highway.
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8. Learned APP took this Court to the map which is of the municipal body which clearly indicates the encroachment made. Learned APP has also taken this Court through the statements of various witnesses including the contractor, who had put up the construction allegedly bang on road, who have stated they had undertaken the construction of the shops at the behest of the applicant.
9. It is submitted that learned advocate for the applicant is deliberatly confusing the issue by involving the name of temple trust and the grab of construction on compound wall. He has actually encroached upon the government land.
10. It is submitted that applicant and his family members are head strong persons with several antecedents, and therefore, nobody in the town is able to raise voice against the applicant and/or his family members even though they are the land encroachers. Attention is also drawn to the notice issued by Executive Engineer of R & B Department, Nadiad to the applicant for removing shops way back in the year 2015 indicating that the construction is falling within 11.50 mtrs from the center of the road which is illegal. Still since 2015, the construction has continued to exist.
11. Learned advocate for the defacto complainant has submitted that the defacto complainant and other villagers have garnered courage to stand against the applicant, who is head strong person and has several FIRs registered against him in connection with land disputes. The complainant had preferred Page 3 of 7 Downloaded on : Sun Jan 16 17:05:51 IST 2022 R/CR.MA/15215/2021 ORDER DATED: 22/09/2021 an application before the revenue authorities since long indicating that the applicant had encroached on public land and has completely blocked the road. He drew attention of this Court to communication of R & B Engineer even to the police authorties that how the encroachment has taken place and the applicant is not relenting. From such report, it is evident that the applicant has grab not only the government land, but also private society land.
12. Having considered the rival submissions of the parties and having perused the documents on record, it is the case of the investigating agency that the applicant-Bhanubhai Jodhabhai Bharwad had purchased the common-plot of the society viz. Shyam Bungalows in name of his wife. Thereafter, he obstructed the public road (narrow passage) illegally. At that time, he used to stop the farmers and villagers commuting through the passage and tell them that "this passage does not belong to you. You shall not commute through it." Thereafter, he closed the passage. When the villagers and farmers fearing the threats of applicant stopped using the road, the applicant began to use the passage for his personal use. He began to lay his articles thereon. Thereafter, he occupied the whole passage. When the passage came under his possession, about six year before, he got pucca shops constructed illegally on the public passage without obtaining any permission from the Panchayat. Also, a compound wall was constructed on the four sides of the shops. Thus, he has encroached upon a public passage, took possession thereof and claiming his rights thereon illegally. Also, the shops have been given on rental basis illegally. This modus is a classic case of gradual land grabbing.
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13. A map produced along with report of the DILR indicates that Nadiad-Kapadwanj Road is adjacent to Survey No.222/A & 223 and between Survey No.222/A & 223, there is appurtenant road passing connceting to Nadiad-Kapadwanj road. The construction indicate, as it existed and indicated on the map is encroaching upon the public road running between Nadiad- Kapadwanj Highway also known as Nadiad-Kapadwanj road.
14. Over and above, the construction of shop has also made on appurtenant road between Survey No.222/A & 223. Therefore, both the roads, which are intersecting each other running to South to East on the map are clearly encroached. Such encroachment is at the behest of the applicant is evident from the statement of witness Hasmukhbhai @ Mahetabhai Parshottambhai Sharma recorded on 30.07.2021, who is contractor and has stated that it was at the behest of the applicant that construction was put up. Similarly, the statements of witnesses recorded, who are occupying and residing in the society nearby also indicate that such shops are owned by the applicant either given on rent or lease to the occupier for which the applicant is recovering rent.
15. The Court has also taken into consideration the notice, which was issued way back in the year 2015 which is addressed to the applicant indicating to remove the encroachment. Such encroachment was on the junction between Nadiad-Modasa Road at Bilodara. The notice is issued on 02.08.2021 also accurately makes out the land grabbing of government by the applicant and for which communication dated 02.08.2021 was issued by the R & B Department to the police authorities for Page 5 of 7 Downloaded on : Sun Jan 16 17:05:51 IST 2022 R/CR.MA/15215/2021 ORDER DATED: 22/09/2021 taking necessary action. From the record, it appears that the applicant is having antecedents and in fact, has been convicted for offence. The applicant has been convicted by the Sessions Court, Nadiad vide order dated 11.04.2016 passed in Sessions Case No.291/03 for offence under Sections 364A read with 149 of the Indian Penal Code and inflicted punishment of life imprisonment. There are other antecedents. The list of offences against the applicant are as under:-
Sr. Police Station C.R.NO./Section Accused No.
1. Nadiad Rural II.C.R.NO.30/04 Bhanubhai Police Station Sections 504, 506(2) and Jodhabhai 114 of the Indian Penal Bharwad Code and Section 135 of (Accused No.2) the Bombay Police Act.
2. Nadiad Rural I.C.R.NO.126/05 Bhanubhai Police Station Sections 394, 504, 506(2) Jodhabhai and 114 of the Indian Bharwad Penal Code. (Accused No.2)
3. Nadiad Rural I.C.R.NO.129/05 Bhanubhai Police Station Sections 395 and 436 of Jodhabhai the Indian Penal Code. Bharwad (Accused No.2)
4. Nadiad Rural I.C.R.NO.56/06 Bhanubhai Police Station Sections 143, 147, 148, Jodhabhai 149, 341, 343 and 186of Bharwad the Indian Penal Code (Accused No.2)
5. Nadiad Rural I.C.R.NO.65/05 Bhanubhai Police Station Sections 447, 506(2), 504 Jodhabhai and 114 of the Indian Bharwad Penal Code. (Accused No.2)
6. Nadiad Rural I.C.R.NO.5/08 Bhanubhai Police Station Sections 143, 147, 148, Jodhabhai 149, 324, 506 and 427 of Bharwad the Indian Penal Code and (Accused No.2) Section 135 of the Bombay Police Act.
7. Nadiad Rural II.C.R.NO.11/11 Bhanubhai Police Station Sections 323, 504, 506(2) Jodhabhai and 114 of the Indian Bharwad Page 6 of 7 Downloaded on : Sun Jan 16 17:05:51 IST 2022 R/CR.MA/15215/2021 ORDER DATED: 22/09/2021 Penal Code. (Accused No.2)
8. Nadiad Rural II.C.R.NO.90/15 Bhanubhai Police Station Sections 323, 504, 506(2) Jodhabhai and 114 of the Indian Bharwad Penal Code. (Accused No.2)
9. Nadiad Town I.C.R.NO.215/06 Bhanubhai Police Station Sections 332, 504, 506(2) Jodhabhai and 353 of the Indian Bharwad Penal Code and Section (Accused No.2) 135 of the Bombay Police Act.
10. Nadiad Town I.C.R.NO.255/09 Bhanubhai Police Station Sections 323, 504 and 341 Jodhabhai of the Indian Penal Code Bharwad and Section 135 of the (Accused No.2) Bombay Police Act.
11. Nadiad Town II.C.R.NO.727/10 Bhanubhai Police Station Sections 323, 504 and 114 Jodhabhai of the Indian Penal Code Bharwad and Section 135 of the (Accused No.2) Bombay Police Act.
12. Nadiad Town I.C.R.NO.187/10 Bhanubhai Police Station Sections 143, 147, 148, Jodhabhai 149, 326, 395 and 397 of Bharwad the Indian Penal Code. (Accused No.2)
16. The Court has also perused the order of the Sessions Court dated 13.08.2021 passed in Criminal Misc.Application No.794 of 2021. While rejecting the anticipatory bail application of the applicant, the Court has assigned cogent reasons in rejecting the same.
17. In view of aforestated reasons, no interference is called for. The present application is required to be dismissed and stand dismissed, accordingly.
(A.Y. KOGJE, J) GIRISH Page 7 of 7 Downloaded on : Sun Jan 16 17:05:51 IST 2022