Gujarat High Court
Legal Heirs And Representative Of ... vs State Of Gujarat & 4 on 1 August, 2017
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/SCA/13675/2017 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 13675 of 2017
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LEGAL HEIRS AND REPRESENTATIVE OF DECEASED KESARBHAI
TAIYABHAI DAL & 2....Petitioner(s)
Versus
STATE OF GUJARAT & 4....Respondent(s)
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Appearance:
MR. ZALAK B PIPALIA, ADVOCATE for the Petitioner(s) No. 1-3
MR. SHARMA, AGP for the RESPONDENT(s) No. 1
MR JINESH H KAPADIA, ADVOCATE for the Respondent(s) No. 5
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 01/08/2017
ORAL ORDER
1. By this application under Article 227 of the Constitution of India, the applicants call in question the legality and validity of the order dated 9th May, 2017 passed by the S.S.R.D at Ahmedabad, by which, the S.S.R.D rejected the revision application filed by the applicants herein, thereby affirming the order of the Collector, Gir Somnath dated 1st September, 2014.
2. The dispute between the parties pertains to the land bearing Khata No.295, Revenue Survey No.56, paiki 2, situated at Mouje Talala, Taluka: Talala, District: Gir Somnath. The original owner of the land in question was one Kesharbhai Taiyabbhai Dal. The wife of Kesharbhai Taiyabbhai Dal passed away in 2011, whereas Kesharbhai Taiyabbhai Dal passed away on 13th April, 2014. The respondent No.5 herein happens Page 1 of 14 HC-NIC Page 1 of 14 Created On Mon Aug 21 07:10:02 IST 2017 C/SCA/13675/2017 ORDER to be the son of the sister of the wife of late Kesharbhai Taiyabbhai Dal. The respondent No.5 claims that as his Masa had no issues, he was residing with them and he was being treated like a son. It is his case that late Kesharbhai Taiyabbhai Dal had made an oral gift (Hiba) in his favour. Such oral gift was in the presence of the witnesses. It is also his case that prior to the oral gift, the possession was also handed over to him and he relies on one document, which is at page-120, i.e., the possession receipt. It appears that on the demise of Kesharbhai Taiyabbhai Dal, the applicants herein got their names mutated in the record of rights as the class-I heirs. The mutation of the names of the applicants in the record of rights led to the mutation of an entry bearing No.9798 dated 10th June, 2014. The respondent No.5 herein raised objections as regards the mutation of the entry No.9798 and having regard to the objections, the Collector, by his order dated 1st September, 2014, cancelled the entry. This order passed by the Collector came to be challenged before the S.S.R.D and the S.S.R.D also thought fit to reject the revision application. Being dissatisfied with the orders passed by the revenue authorities, the applicants have come up with this petition under Article 227 of the Constitution of India.
3. Having heard the learned counsel appearing for the parties and having considered the materials on record, the only question that falls for my consideration is whether the authorities committed any error in passing the impugned orders. I take notice of the fact that the respondent No.5 filed a Regular Civil Suit No.46 of 2015 in the court of the learned Senior Civil Judge, Veraval seeking declaration and injunction. The declaration to the effect that he had become the owner of Page 2 of 14 HC-NIC Page 2 of 14 Created On Mon Aug 21 07:10:02 IST 2017 C/SCA/13675/2017 ORDER the land in question on the strength of the oral gift deed, which is permissible under the Mohammedan Law and that he is in possession of the property and his possession should not be disturbed. It appears that in the civil suit filed by the respondent No.5, a settlement was arrived at between the parties, that includes the applicants herein. In the wake of the settlement arrived at between the parties, the civil judge passed a consent decree dated 18th May, 2015. The decree drawn by the civil court reads as under;
"The agreement between plaintiff and defendant no.7 to 16 in the present suit with respect to subject matter as well as disputed property more particularly described in Para-2 of the plaint is recoded herein after:
1. It is agreed and accepted by the defendants no.7 to 16 that the suit property i.e. property situated at District Girsomnath, Village Talala bearing revenue survey no.56 paiki -2 admeasuring Hector 1 Are 77 Sq.Mtrs 73, whose boundaries are described in para-2 of the plaint has been given by way of oral Gift in accordance with the provisions of Mohammedan Law to the plaintiff by the absolute owner Late Kesar Taiyab and the plaintiff is in absolute possession of the suit property since 10/2/2014 and therefore the said suit property is in absolute ownership and possession of the plaintiff. It is agreed and accepted by the defendants no.7 to 16 that all the proceeding relating to ownership rights as well as possession-occupancy rights of the plaintiff are hereby withdrawn and such rights are relinquished by the defendants no.7 to 16 in favour of the plaintiff.
2. It is agreed and accepted by the defendant no.7 to 16 that the possession receipt dated 10.2.2014 issued by late Taiyab Dal in pursuance of oral gift is undisputed and no objection or dispute shall be raised by the defendant no.7 to 16 with respect to the validity of the said possession receipt.Page 3 of 14
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3. It is agreed and accepted by the defendants no.7 to 16 that as per the family settlement all proceedings before the revenue authorities i.e. defendant no. 1 to 5, relating to ownership and occupancy rights of the plaintiff shall be withdrawn unconditionally by the defendant no.7 to 16 and defendant no.7 to 16 shall co- operate in giving necessary written consent, application, declaration and affidavit with respect to entering the name of the plaintiff as owner and occupier of the suit property in revenue records including cultivation rights as well as record of right. Further they shall ensure that the name of the plaintiff is entered as owner of the suit property in the revenue record and get it certified; by co- operating in the revenue proceeding pending before the defendant no.1 to 5 pertaining to the suit property and defendants shall ensure that aforementioned proceedings shall conclude as soon as possible.
4. Defendants no 7 to 16 have lodged complaint before the Judicial magistrate first class, Talala, being S.K. No.1/15 dated 1/4/2015 against the plaintiff pertaining to the possession receipt given in favour of plaintiff in pursuance of the oral gift. It is agreed that they shall declare and thereby give in writing as well as oral evidence before the competent authority or forum that the said oral gift as well as possession receipt is valid and said transaction is accepted and agreed by the defendant no.7 to 16.
5. Defendant no.7 to 16, or its servants, agents, representatives, power of attorney shall not enter or cause to enter the said suit premises and they shall not disturb, obstruct or cause any disturbance with the peaceful possession or occupancy of the plaintiff or its servants, agents, representatives, power of attorney. It is explicitly agreed by the defendant they shall not cause any obstruction or disturbance with respect to transfer or such ancillary tractions entered or which may be entered by the plaintiff in future.
6. Since it has been agreed that all revenue proceeding pending before defendant no.1 to 5 shall be concluded in favour of the plaintiff by entering his name Page 4 of 14 HC-NIC Page 4 of 14 Created On Mon Aug 21 07:10:02 IST 2017 C/SCA/13675/2017 ORDER in the revenue records as owner and occupier of the suit property and getting it certified, the relief against the defendant no.1 to 5 as prayed for in the suit is not required pressed into service.
7. As per abovementioned agreement between plaintiff and defendant no.7 to 16 pertaining to the subject matter property, no complaint or fresh criminal proceedings shall be filed before defendant no.6 or any officer subordinate to defendant no.6 and therefore defendant no.6 or any officer subordinate to defendant no.6 does not have to deal with any proceedings for removing the plaintiff from his possession. In light thereof it is declared that prayer against defendant no.6 is not required to be pressed into service.
8. In view of the settlement arrived at between plaintiff and defendant no. 7 to 16 and consent decree having been arrived at in the present suit proceedings, proceedings being civil misc. Application no.56 of 2015 filed by defendant no. 7 to 16 before the district court, Jungadh shall be withdrawn unconditionally by defendant no.7 to 16.
9. Defendant no.7 to 16 has appointed Mehboob Gulambhai Fulani, Residing at: Gondal Road, Village:
Kothariya, Taluka: Rajkot as power of attorney for acting on their behalf in all legal proceeding pertaining to suit property as well as for entering into compromise agreement, negotiations and all other allied proceedings and said power of attorney is valid till date and same has not been revoked. The present settlement agreement arrived at between plaintiff and defendant no.7 to 16 for presentment to this Hon'ble court, has been signed by the power of attorney holder as authorised and instructed by defendant no.7 to 16 therefore defendant no.7 to 16 shall herein after not raised any dispute.
10. The present suit having been decreed by way of consent, the plaintiff shall not institute any proceedings against defendant no.7 to16 for recovery of cost of litigation or such other allied proceedings.
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11. Defendant no.7 to16 as well as plaintiff shall strictly comply with conditions mentioned in aforementioned settlement agreement and in case of any default of any conditions by either of the parties, the other party shall be entitled to file execution proceedings as well as such other legal proceedings as may be available.
12. The aforementioned facts having been noted by way of consent decree between plaintiff and defendant no.7 to 16."
4. It is pointed out by the learned counsel appearing for the applicants that they appeared in the suit as the defendants through their power of attorney .
5. After the consent decree came to be passed, it appears that the applicants herein have challenged the same by filing the First Appeal No.10 of 2015 in the court of the learned District Judge at Veraval. This first appeal has been filed on the ground that the consent decree is a fraud. The defendants had never asked their power of attorney to give consent and entered into a compromise. One another development took place after the first appeal came to be filed by the applicants. It appears that the applicant No.1 herein, namely, Allarakhabhai Taiyabbhai Dal lodged an FIR being M. Case No.01 of 2015 at the concerned police station alleging forgery and cheating. In the first information report, being M. Case No.01 of 2015, it was alleged that the document, evidencing receipt of the possession, which is at page-120, is a bogus document. Initially, an application was filed being the Criminal Misc. Application No.7312 of 2015 for quashing of the first information report being M. Case No.01 of 2015 under section 482 of the Cr.P.C on merits. This Court, by an order dated 21st April, 2015 declined to quash the first information report.
Page 6 of 14HC-NIC Page 6 of 14 Created On Mon Aug 21 07:10:02 IST 2017 C/SCA/13675/2017 ORDER Later, the parties, once again, settled the matter and came before this Court again by filing the Criminal Misc. Application No.13068 of 2015. On 9th July, 2015, this Court passed the following order;
1 Rule. Ms Chetna M Shah, learned Additional Public Prosecutor, waives service of notice of Rule for respondent No.1-State of Gujarat. Mr. Chintan S Popat, learned advocate submits that he has received instructions to appear on behalf of respondent No.2 and would be filing Vakalatnama during the course of the day. He is permitted to do so. He waives service of notice of Rule for respondent No.2.
2 This application under Section 482 of the Code of Criminal Procedure, 1973, has been preferred with the prayer to quash and set aside the complaint being M- case No. 1 of 2015 registered with Talala Police Station, District-Gir Somnath for offences punishable under Sections 406,420,465,467,468,547,219,114 and 120-B of the Indian Penal Code. and other consequential proceedings arising therefrom.
3 The case of the prosecution, in brief, is that the brother of the complainant, namely Kesharbhai Taiyabbhai Dal, died on 13.04.2006 without any heirs. Being his real brother, the complainant is the only legal heir of Kesharbhai Taiyabbhai Dal. The agricultural land of the deceased brother of the complainant was transferred in favour of the complainant and a revenue entry has been mutated in the revenue record vide entry No.9798. This entry has been certified on 23.04.2015. It is alleged that the applicants, in connivance with each other, made forged documents showing that the agricultural land of deceased Kesharbhai Taiyabbhai Dal has been gifted to applicant No.1, who is the nephew of the wife of the deceased. On the basis of the forged documents the applicants have initiated legal proceedings against the complainant for the purpose of grabbing the land of the deceased, which was subsequentially transferred in the name of the complainant.
4 It is the case of the applicants before this Court that Page 7 of 14 HC-NIC Page 7 of 14 Created On Mon Aug 21 07:10:02 IST 2017 C/SCA/13675/2017 ORDER the issue has now been amicably resolved between them and the complainant, as is evident from the affidavit of the complainant which is on record as Annexure-B, wherein, it is stated that the complainant has no objection to the quashing of the criminal proceedings against the applicants in view of settlement between the parties.
5 Mr. Raxit J Dholakia, learned advocate for the applicants has submitted that as the complainant has now amicably settled and resolved the dispute with the applicants and it has also been decided to withdraw all civil and criminal proceedings as per the settlement and as the complainant no longer wishes to proceed with the matter and as the complainant has no objection to the prayers made in the application, the criminal proceedings may be quashed and set aside.
6 The learned advocate for the petitioners has placed reliance upon the judgments of the Supreme Court in the cases of Madan Mohan Abbot v. State of Punjab reported in (2008)4 SCC 582 and Gian Singh v. State of Punjab And Another reported in (2012)10 SCC
303. 7 In Madan Mohan Abbot v. State of Punjab (supra), the Supreme Court has held that it is advisable that in disputes where the question involved is of a purely personal nature, the courts should ordinarily accept the terms of compromise even in criminal proceedings, since keeping the matter alive, with no possibility of a result in favour of the prosecution, is a luxury which the courts, grossly overburdened as they are, cannot afford. The time so saved can be utilised in deciding more effective and meaningful litigation. The relevant paragraphs of the judgment are quoted hereinbelow:
5. It is on the basis of this compromise that the application was filed in the High Court for quashing of proceedings which has been dismissed by the impugned order. We notice from a reading of the FIR and the other documents on record that the dispute was purely a personal one between two contesting parties and that it arose out of extensive business dealings between them and that there was absolutely no public policy involved in the nature of the allegations made against the accused.Page 8 of 14
HC-NIC Page 8 of 14 Created On Mon Aug 21 07:10:02 IST 2017 C/SCA/13675/2017 ORDER We are, therefore, of the opinion that no useful purpose would be served in continuing with the proceedings in the light of the compromise and also in the light of the fact that the complainant has, on 11-1-2004 passed away and the possibility of a conviction being recorded has thus to be ruled out.
6. We need to emphasise that it is perhaps advisable that in disputes where the question involved is of a purely personal nature, the court should ordinarily accept the terms of the compromise even in criminal proceedings as keeping the matter alive with no possibility of a result in favour of the prosecution is a luxury which the courts, grossly overburdened as they are, cannot afford and that the time so saved can be utilized in deciding more effective and meaningful litigation. This is a common sense approach to the matter based on ground of realities and bereft of the technicalities of the law.
8 In a more recent judgment in the case of Gian Singh v. State of Punjab And Another (supra), the Supreme Court has dealt with the question whether the inherent power of the High Court under Section 482 to quash criminal proceedings involving non-compoundable proceedings, in view of a compromise arrived at between the parties can be exercised and, if so, under what circumstances. It has been held by the Supreme Court that where the offences concerned are purely private offences and do not involve any question of public policy, the power to quash criminal proceedings on the basis of compromise can be exercised. However, where the offences are serious and heinous, such power ought not ordinarily to be used. It has been elaborated by the Supreme Court in the above decision, that offences arising from commercial, financial, mercantile, civil, partnership or like transactions or offences arising out of matrimony relating to dowry, etc. or family disputes where the wrong is basically private or personal in nature and parties have resolved the dispute, come under the category of offences where the criminal proceedings may be quashed after the parties have amicably resolved and settled the issue. The principles of law enunciated by the Supreme Court in the above decision are encapsulated in the following paragraph of the judgment:
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61. The position that emerges from the above discussion can be summarised thus: the power of the High Court in quashing a criminal proceeding or FIR or complaint in exercise of its inherent jurisdiction is distinct and different from the power given to a criminal court for compounding the offences under Section 320 of the Code. Inherent power is of wide plenitude with no statutory limitation but it has to be exercised in accord with the guideline engrafted in such power viz; (i) to secure the ends of justice or (ii) to prevent abuse of the process of any Court. In what cases power to quash the criminal proceeding or complaint or F.I.R may be exercised where the offender and victim have settled their dispute would depend on the facts and circumstances of each case and no category can be prescribed. However, before exercise of such power, the High Court must have due regard to the nature and gravity of the crime. Heinous and serious offences of mental depravity or offences like murder, rape, dacoity, etc. cannot be fittingly quashed even though the victim or victims family and the offender have settled the dispute. Such offences are not private in nature and have serious impact on society. Similarly, any compromise between the victim and offender in relation to the offences under special statutes like Prevention of Corruption Act or the offences committed by public servants while working in that capacity etc; cannot provide for any basis for quashing criminal proceedings involving such offences. But the criminal cases having overwhelmingly and pre-dominatingly civil flavour stand on different footing for the purposes of quashing, particularly the offences arising from commercial, financial, mercantile, civil, partnership or such like transactions or the offences arising out of matrimony relating to dowry, etc. or the family disputes where the wrong is basically private or personal in nature and the parties have resolved their entire dispute. In this category of cases, High Court may quash criminal proceedings if in its view, because of the compromise between the offender and victim, the possibility of conviction is remote and bleak and continuation of criminal case would put accused to great oppression and prejudice and extreme injustice would be caused to him by not quashing the criminal case despite full and complete settlement and compromise with the victim. In other words, the High Court must consider whether it Page 10 of 14 HC-NIC Page 10 of 14 Created On Mon Aug 21 07:10:02 IST 2017 C/SCA/13675/2017 ORDER would be unfair or contrary to the interest of justice to continue with the criminal proceeding or continuation of the criminal proceeding would tantamount to abuse of process of law despite settlement and compromise between the victim and wrongdoer and whether to secure the ends of justice, it is appropriate that criminal case is put to an end and if the answer to the above question(s) is in affirmative, the High Court shall be well within its jurisdiction to quash the criminal proceeding.
9 Ms. Chetna M Shah, learned Additional Public Prosecutor for respondent No.1-State of Gujarat, submits that in view of the settlement arrived at between the parties, the Court may pass appropriate orders.
10 Mr. Chintan S Popat, learned advocate for respondent No.2, has reiterated the stand taken by respondent No.2 in the affidavit affirmed by him on 06.07.2015, wherein, it is stated that the dispute has been resolved amicably between the applicants and respondent No.2 with the intervention of family members and leaders of the community. Respondent No.2, no longer wishes to proceed with the complaint against the applicants, therefore, it may be quashed and set aside.
11 The complainant is present in-person in the Court and has been identified by his learned advocate Mr. Chintan S Popat. He has reiterated the stand taken by him in the affidavit.
12 Hence, in view of the amicable resolution of the dispute between the applicants and the complainant, as is evident from the affidavit filed by the complainant, and in view of the judgments of the Supreme Court in the cases of Madan Mohan Abbot v. State of Punjab (supra) and Gian Singh v. State of Punjab And Another (Supra)the following order is passed:
The FIR, being M-case No. 1 of 2015 registered with Talala Police Station, District-Gir Somnath and other consequential proceedings arising therefrom for offences punishable under Sections 406,420,465,467,468,547,219,114 and 120-B of the Indian Penal Code, is quashed and set aside.
13 The petition is allowed in the above terms. Rule is made absolute, accordingly.
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6. Thus, with the consent of Allarakhabhai Taiyabbhai Dal, the first information report being M. Case No.01 of 2015 came to be quashed. In the order passed by this Court dated 9 th July, 2015, the presence of Allahrakhabhai Taiyabbhai Dal has also been noted before this Court. An affidavit in writing was also filed by Allahrakhabhai before this Court and which was relied upon for the purpose of quashing the first information report being M. Case No.01 of 2015.
7. Mr. Pipaliya, the learned counsel appearing for the applicants submitted that from day one, the respondent No.5 has practiced fraud. According to him, Allahrakhabhai Taiyabbhai Dal is an 83 year old man and he was pressurized to remain present before this Court for the purpose of giving consent to quash the first information report. Thus, the submissions are that the consent decree was also obtained by fraud and the criminal proceedings also came to be quashed by fraud. His second limb of submission is that the respondent No.5 cannot claim to be the lawful owner of the land as there is no document in writing in the form of a gift deed. He would submit that even if the oral gift (Hiba) is permissible under the Mohammedan Law, only 1/3rd plot of that property could have been gifted. In such circumstances, Mr. Pipaliya prays that the entry, which came to be cancelled, be restored.
8. This petition has been vehemently opposed by Mr. Ansin Desai, the learned senior counsel appearing for the respondent No.5 and Mr. Sharma, the learned AGP appearing for the State.
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9. Mr. Desai would submit that if it is the case of the applicants that the consent decree was obtained by fraud, then they can make good their submission before the Appeal Court, before whom, the first appeal is pending. He would submit that if the criminal proceedings are alleged to have been quashed with fraud, then, till this date, the applicants have not filed any application to recall that order on such ground. He would submit that the oral gift deed is permissible under the Mohammedan Law. The main plunk of the submission of the learned senior counsel is that, rightly or wrongly, there is a decree, as on date, passed by a competent civil court and the revenue authorities are bound by the decreed passed by the competent civil court until the same is quashed by the Appeal Court. In such circumstances, according to the learned senior counsel, no interference is warranted at the end of this Court in exercise of its supervisory jurisdiction under Article 227 of the Constitution of India.
10. I am of the view that I should not interfere with the impugned order passed by the S.S.R.D, affirming the order passed by the Collector. Mr. Desai is right in his submission that there is a decree, as on date, passed by the competent civil court and the record of rights will have to be corrected accordingly. Ultimately, if the decree is quashed or set aside by the Appeal Court, then the record of rights can be accordingly corrected further.
11. All that I need to observe is that while effecting the necessary entry in the record of rights on the basis of the decree drawn by the civil court, let there also be a reference of the pendency of the First Appeal No. 10 of 2015 pending in the Page 13 of 14 HC-NIC Page 13 of 14 Created On Mon Aug 21 07:10:02 IST 2017 C/SCA/13675/2017 ORDER court of the learned District Judge at Veraval. The first appeal which is pending before the District Court shall be decided on its own merits in accordance with law without being influenced by the revenue proceedings.
12. With the above, this application is disposed of.
Direct service is permitted.
(J.B.PARDIWALA, J.) Vahid Page 14 of 14 HC-NIC Page 14 of 14 Created On Mon Aug 21 07:10:02 IST 2017