Jinabhai Jerambhai Borda & vs Manjibhai J. Kanani & 2 on 30 October, 2015

[Cites 7, Cited by 0]

Gujarat High Court

Jinabhai Jerambhai Borda & vs Manjibhai J. Kanani & 2 on 30 October, 2015

HC-NIC Page 1 of 18 Created On Sat Oct 31 02:44:34 IST 2015 R/SCR.A/5740/2015 CAV JUDGMENT 1 This is one more matter in hand amongst hundreds, I have dealt with regarding land grabbing in the city of Surat. Over a period of time, the city of Surat, once known as the Manchester of India, is now a Paradise for the land mafias. People have started going to any extent to grab the agricultural and nonagricultural lands. In last one decade, the price of lands, all over the city of Surat and its adjoining villages, have escalated in leaps and bounds. The value of the land which was once being measured in acre, is now measured in square meters. Consequently, the crime rate has increased to a considerable extent. In the course of my present sitting, I have noticed that the land worth crores of rupees has been grabbed and usurped by the land mafias. The State Government and its officials, more particularly, the police and the Revenue Department very conveniently have turned a blind eye to all this. I have noticed that father is fighting against sons, sons are fighting against the father, brothers and sisters are fighting against each other, and best of the friends have turned foes. The agreements to sale are being dishonoured at the drop of the hat. The Civil Courts at Surat are flooded with litigations. The Police Station is flooded with the complaints.

2 By this writ application under Article 226 of the Constitution of India, the petitioners, Trustees of a registered Charitable Trust, have Page 2 of 18 HC-NIC Page 2 of 18 Created On Sat Oct 31 02:44:34 IST 2015 R/SCR.A/5740/2015 CAV JUDGMENT prayed for the following reliefs:

"24(A) Your Lordships may be pleased to issue an appropriate writ, order or direction to quash and set aside the order dated 28.4.2015 passed by respondent No.3 No.JMN/CRPC/145/Vashi.2813/2015.

(B) Your Lordships may be pleased to issue appropriate writ,order and/or direction to respondent no.3 to restore possession of land bearing block No.375/B, Village Kamrej, Mouje Taluka Kamrej, District Surat to the petitioners;

(C) Pending hearing and final disposal of the present petition, Your Lordships may be pleased to direct respondent No.3 to restore possession of land bearing block No.375/B, Village Kamrej, Mouje Taluka Kamrej, District Surat to the petitioners;

(D) An exparte adinterim relief in terms of prayer (C) above may kindly be granted;

(E) Such other and further relief/s as may be deemed just and necessary in the facts and circumstances of the present case may kindly be granted. "

3 This litigation had a chequered history. The dispute relates to a parcel of land bearing survey No.290 block No.375/B, admeasuring 5 Acres and 35 Gunthas, situated at the village: Kamrej of District: Surat. The land is of a restricted tenure covered under the provisions of Section 73AA of the Bombay Land Revenue Code.

3.1 It is the case of the petitioners herein that they are Trustees of a religious Trust registered under the Bombay Public Trust Act. They had entered into an agreement to sale dated 11.03.2004 on behalf of the Trust reduced into writing and duly signed by the original owners of the land and also registered before the Notary dated 17.03.2004. One of the terms and conditions in the said agreement was that the suit land being Page 3 of 18 HC-NIC Page 3 of 18 Created On Sat Oct 31 02:44:34 IST 2015 R/SCR.A/5740/2015 CAV JUDGMENT of a restricted tenure, the land owners shall apply for the necessary permission from the Collector and after the requisite permission of the Collector, the Sale Deed would be executed in favour of the Trust. 3.2 It is the case of the petitioners that a possession receipt was also executed by the original owners of the land dated 19.04.2004 and the possession of the disputed land was handed over to the Trust. It is the case of the petitioners that the total sale consideration of Rs.28,00010/ was fixed and the petitioner paid Rs.1,50,19,152/ between 2004 to 2013 which is more than the agreed purchase price of the suit property, as later on, the original owners demanded more amount. It is also the case of the petitioners that the original owners have acknowledged the above referred amount by issuing receipts. The original owners also applied with the Collector for appropriate permission to transfer the land in in view of the provisions of Section 73AA of the Bombay Land Revenue Code.

3.3 It is the case of the petitioners that despite there being an agreement to sale in writing executed by the original owners and payment of the amount of Rs.1,50,19,152/, the land owners transferred the land by way of a registered sale deed in favour of the respondent No.1 herein. In such circumstances referred to above, the petitioners preferred a Special Civil Suit No.265 of 2013 in the Court of the learned Page 4 of 18 HC-NIC Page 4 of 18 Created On Sat Oct 31 02:44:34 IST 2015 R/SCR.A/5740/2015 CAV JUDGMENT 11th Additional Senior Civil Judge, Surat for specific performance of contract, cancellation of sale deed and prayed for injunction below Exhibit: 5. The following dates are important:

(1) The suit referred to above was filed on 09.05.2013.

(2) The Civil Judge rejected the application Exhibit: 5 for injunction vide order dated 10.04.2015.

(3) On 28.04.2015, the respondent No.1 herein initiated proceedings under Section 145 of the Criminal Procedure Code on the premise that the petitioners herein were trying to disturb his possession which may lead to breach of public peace and tranquility.

(4) The proceedings under Section 145 of the Cr. P.C. came to be registered as Court Case No.1 of 2013. The Executive Magistrate passed a preliminary order dated 28.05.2013 directing the Police Inspector, Kamrej Police Station, Surat to take over the possession of the disputed land on behalf of the State Government.

(5) The Executive Magistrate also directed to prepare a panchnama and directed the parties not to enter into the said land.

(6) The petitioners herein challenged the proceedings under Section 145 of the Cr.P.C. by way of filing the Criminal Revision Application No.136 of 2013 in the Court of the learned Additional Sessions Judge at Surat.

(7) The learned Additional Sessions Judge, after hearing both the Page 5 of 18 HC-NIC Page 5 of 18 Created On Sat Oct 31 02:44:34 IST 2015 R/SCR.A/5740/2015 CAV JUDGMENT sides, allowed the Revision Application and while quashing the proceedings under Section 145 of the Cr.P.C., observed as under:

"[12.2] So far the other aspect is concerned, it is the settled legal position that when the Court is exercising power of revision, it has a very limited scope. The power of revisional jurisdiction is a discretionary one and it should be used in exceptional cases and when there is error on the point of law and consequently, there is a miscarriage of justice, in that circumstance, the revisional jurisdiction can be exercised. So far the present case on hand is concerned, the learned Executive Magistrate has passed the order on 28.05.2013 directing the PI, Kamrej Police Station to take possession of the disputed land and also directing the parties not to enter into the said disputed land and if any person or institution or agents tries to illegally enter into the said disputed land, the PI, Kamrej Police Station is directed to file a complaint also in that regard and also directed the parties to maintain peace. So, this is the order of attachment passed by the learned Executive Magistrate on the application of opponent no.2.

[12.3] Now, the next question before this Court is whether a Magistrate can pass order of attachment under Section 146(1) of Cr.P.C. without following the requisite procedure prescribed under Section 145(1) of Cr.P.C. For that, it is also crystal clear from the order passed by the learned Executive Magistrate that the learned Executive Magistrate has not followed the procedure prescribed under Section 145(1) of Cr.P.C. and directly exercised the power under Section 146(1) of Cr.P.C. Now, if the application before the learned Executive Magistrate under Section 145 is concerned, the Magistrate has to first of all satisfy that a breach of peace was likely or the Magistrate has to satisfy himself that there is a dispute concerning land and the dispute is likely to cause a breach of peace. So far the power under Section 146(1) of Cr.P.C. Is concerned, that power has to be exercised in situation of emergency. Another ground to exercise power under Section 146(1) is the Magistrate has to take into consideration any situation where the Magistrate is of opinion that none of the parties was in possession of the said disputed land and he is unable to decide which of the party is in possession of the disputed land. So far the present case on hand is concerned, perusing the record and proceeding of the learned Executive Magistrate, it clearly establishes that the original applicant i.e. present opponent no.2 has filed the application before the learned Executive Magistrate and in that application, it is the case of the applicant that he is in possession of the said disputed land. In the application, it is mentioned that one offence has been registered against the applicant and the Trustees of the Trust on 15.05.2013 before the Kamrej Police Station and they have illegally tried to enter into the disputed land, and merely on Page 6 of 18 HC-NIC Page 6 of 18 Created On Sat Oct 31 02:44:34 IST 2015 R/SCR.A/5740/2015 CAV JUDGMENT that apprehension, the application has been filed. So, while exercising power under Section 146(1) of Cr.P.C., the Magistrate has to satisfy himself that this is a case of emergency and then, in that circumstance only, the Magistrate can exercise power under Section 146(1) of Cr.P.C. In the observation made by the learned Executive Magistrate while passing the order, even he has not mentioned that this is a case of emergency. Only he has merely observed that prima facie it appears that there is likelihood of breach of peace and to avoid breach of peace, he has directed the Inspector of Kamrej Police Station to take possession of the said disputed land. In case of Ashok Kumar Vs. State of Uttarakhand & ors. reported in 2013(3) G.L.H. 168, the Hon'ble Apex Court has held in para 13 that, "The ingredients necessary for passing an order under Section 145(1) of the Code would not automatically attract for the attachment of the property. Under Section 146, a Magistrate has to satisfy himself as to whether emergency exists before he passes an order of attachment. A case of emergency, as contemplated under Section 146 of the Code, has to be distinguished from a mere case of apprehension of breach of the peace. The Magistrate, before passing an order under Section 146, must explain the circumstances why he thinks it to be a case of emergency. In other words, to infer a situation of emergency, there must be a material on record before Magistrate when the submission of the parties filed, documents produced or evidence adduced".

So, considering this observation of the Hon'ble Apex Court, from the order of the learned Executive Magistrate, it transpires that the learned Executive Magistrate has not come to the conclusion or not explained the circumstances why he thinks it to be a case of emergency to exercise power under Section 146(1) of Cr.P.C. Hon'ble High Court of Gujarat in Special Criminal Application No.2385 of 2012 has observed on page 19 that, " A Magistrate before he starts proceedings under Section 145 has to state the grounds for his being satisfied that a breach of the peace was likely. In the proceedings under Section 145, the Magistrate must first be satisfied that there is a dispute concerning land and secondly that the dispute is likely to cause a breach of the peace. Merely because a petition has been filed under Section 145, Cr.P.C., it does not follow that there is a dispute concerning land. The Magistrate will have to distinguish between a case where one party is clearly in possession of the land and another party who is not in possession of the land attempts to interfere with the possession of the other party and thereby attempts to create breach of the peace and a case where a bonafide dispute regarding land exists, which is likely to create breach of the peace. It is only in the Page 7 of 18 HC-NIC Page 7 of 18 Created On Sat Oct 31 02:44:34 IST 2015 R/SCR.A/5740/2015 CAV JUDGMENT latter case that the Magistrate will start proceedings under Section

145. In the former case, where a party who is the aggressor attempts to interfere with the possession of the opposite party and thereby attempts to create a breach of the peace and files a petition stating that breach of the peace is likely, the proper course for the Magistrate is not to proceed under Section 145, but to take steps against the party attempting to create a breach of the peace under Section 107, Cr.P.C., and bind them to keep the peace. That is exactly what has happened in the present case".

The Hon'ble Gujarat High Court has also observed page no.21 that, " The second ground on which the impugned order would fall is with regard to the exercise of power by the Magistrate under Section 146 of the Code. The condition precedent for attachment of a disputed property and appointment of a Receiver is the existence of a situation of emergency necessitating attachment to prevent breach of peace and the Court passing the order should record its satisfaction that there exists an emergency which requires attachment of the property. The case of emergency contemplated under Section 146 of the Code has to be distinguished from a case of apprehension of breach of peace. In the instant case, the perusal of the impugned order dated 6th August 2012 passed by the Magistrate under Section 146 of the Code shows that the Magistrate has not recorded any finding therein that the case was one of emergency. Merely by mentioning the reasons that there was an apprehension of breach of peace would not bring the matter under the case of emergency. The Magistrate was obliged to record a categorical finding before passing the attachment order under Section 146(1) of the Code that it was a case of emergency and thus it would be essential to attach the property which is subject of dispute.

To infer a situation of emergency, there must be some material before a Magistrate on record from the submissions of the parties, documents produced or evidence adduced and not upon the personal impression of a Magistrate. Such circumstance would also be inferred from the report submitted by any independent agency like the police".

So, from the observation of the Hon'ble Apex Court and the Hon'ble Gujarat High Court, it is clearly established that there was no material available before the learned Executive Magistrate to come to the conclusion that this is a case of emergency contemplated under Section 146 of Cr.P.C. On the contrary, the reason cited by the learned Executive Magistrate for passing such an order of attachment is merely breach of peace. Except that Page 8 of 18 HC-NIC Page 8 of 18 Created On Sat Oct 31 02:44:34 IST 2015 R/SCR.A/5740/2015 CAV JUDGMENT no other observation has been made by the learned Executive Magistrate. Hence, considering the above mentioned two decisions and the law laid down by the Hon'ble Apex Court under which circumstance the Magistrate can pass an order under Section 146(1) of Cr.P.C., there is nothing on record to show that this is a case of emergency which requires a Magistrate to exercise his power under Section 146(1) of Cr.P.C. [12.4] The second aspect in this case is that it is the argument advanced by the learned advocate for the applicant that the order has been obtained by the opponent no.2 by suppressing material facts. From the record, it transpires that at the time of filing the application before the learned Executive Magistrate, it was within the knowledge of the opponent no.2 that a Special Civil Suit No.265/2013 has been filed before the Civil Court. From the proceeding before the learned Executive Magistrate it transpires that, in the application, nowhere it has been mentioned by the opponent no.2 that a Special Civil Suit No.265/2013 has already been filed. From the record, it transpires that on 20.05.2013, the present opponent no.2 has already appeared in the said Civil Suit through his advocate. So, it can be presumed that he has already participated in the said Civil suit. But, when the application before the learned Executive Magistrate was filed on 27.05.2013, there is no whisper about the filing of said Civil Suit by the present opponent no.2. Considering this aspect also, it clearly suggests that there is suppression of material fact by the opponent no.2 and by suppressing material facts regarding the filing of Special Civil Suit, he has obtained the order. So, considering this aspect also, the order passed by the learned Executive Magistrate is required to be set aside."

"[12.6] Further, from the order passed by the learned Executive Magistrate, the reason given by the learned Executive Magistrate to pass the order of attachment under Section 146(1) is merely apprehension of breach of peace. But, he has not stated the grounds for his being satisfied that a breach of peace was likely and this is a case of emergency. So, if the Magistrate has satisfied himself that this is nothing but a breach of peace, then he can pass order under Section 145(1) of Cr.P.C. but not under Section 146(1) of Cr.P.C. Hence also, the reason given by the learned Executive Magistrate is exfacie illegal and without application of mind, and considering this aspect also, the order passed by the learned Executive Magistrate is required to be set aside."

"[12.8] After hearing of this revision application was over and the matter was posted for order on 13.04.2015, on 10.04.2015, the learned advocate for the opponent no.2 moved an application to take the matter on board and subsequently, he produced a copy of the order passed by the learned 11th Additional Senior Civil Judge, Surat in Special Civil Suit No.265/2013, dismissing the application Exh.5 filed by the plaintiffs. However, the present revision application is only pertaining to decide Page 9 of 18 HC-NIC Page 9 of 18 Created On Sat Oct 31 02:44:34 IST 2015 R/SCR.A/5740/2015 CAV JUDGMENT whether the order passed by the learned Executive Magistrate is legal or not. In the earlier paragraphs, it has been already held that the proceedings under Section 145(1) before the learned Executive Magistrate is to be terminated in a situation when Civil suit is pending and in the said Civil Suit, Exh.5 application is already decided by the Civil Court, the proceeding under Section 145 of Cr.P.C. cannot be allowed to be continued.

[13] Under the circumstances, it is clearly established that the order passed by the learned Executive Magistrate is exfacie illegal, against the settled principles of law and also without application of mind. Hence, as discussed above, this is a fit case to interfere with the order passed by the learned Executive Magistrate, as the impugned order passed by the learned Executive Magistrate is exfacie illegal and without application of mind and is nothing but a miscarriage of justice. Hence, I answer Point No.1 in the affirmative, and pass following order:

: O R D E R : Present revision application is hereby allowed. The preliminary order passed by the learned Executive Magistrate, Kamrej in Court Case No.1/2013 dated 28.05.2013 is hereby set aside. R & P be sent back to the learned Executive Magistrate. Kamrej. Pronounced in Open Court today on this 13th day of April, 2015."

4 The above referred judgment and order passed by the Revisional Court was challenged by the respondent No.1 herein before this Court by filing the Special Criminal Application No.4453 of 2015. This Court vide order dated 04.09.2015 disposed of the said application as under:

"Mr. Nanavati, the learned advocate appearing for the petitioner does not press this application and seeks permission to withdraw the same as his client has already avail of the legal remedy available in law.

Mr. Prabhav Mehta, the learned advocate appearing for the respondents Nos.2 to 7 submitted that his clients have already applied before the Executive Magistrate for restoration of the possession.

Permission as prayed for is granted. This application is rejected as not pressed. I clarify that I have otherwise not gone into merit of the matter. Notice is discharged. Adinterim order, if any, stands vacated."

Page 10 of 18

HC-NIC Page 10 of 18 Created On Sat Oct 31 02:44:34 IST 2015 R/SCR.A/5740/2015 CAV JUDGMENT 5 It appears that the learned Additional Sessions Judge, although quashed and set aside the preliminary order of attachment of the property passed by the Executive Magistrate under Section 145 of the Cr.P.C., yet did not pass any order for restoration of the possession in favour of the party from whom the possession was taken over by the police.

6 Indisputably, pursuant to the order passed by the Executive Magistrate under Section 145 of the Cr.P.C., the possession of the property was taken over from the petitioners herein i.e. the Trust. This fact has been fairly admitted by both the sides i.e. by the respondent No.1 as well as by the State respondent. The police officer, who was present before this Court, assisting the learned APP, made a statement that the possession was with the Trust and the same was taken over from the Trust. The police officer made himself very clear that they could have handed over the possession to the Trust since the proceedings under Section 145 of the Cr.P.C. were ordered to be quashed, but the respondent No.1 herein took objection and pointed out that the Exhibit: 5 application of the original plaintiffs i.e. the Trust had been rejected by the Civil Court disbelieving their possession and the possession should be handed over to him.

Page 11 of 18 HC-NIC Page 11 of 18 Created On Sat Oct 31 02:44:34 IST 2015 R/SCR.A/5740/2015 CAV JUDGMENT 7 It is very much necessary to note that at no point of time, the respondent No.1 asserted that he was in possession of the property. At least, in the course of hearing of this matter, it was not submitted before me that the possession was with the respondent No.1. The learned counsel appearing for the respondent No.1, with his usual fairness, submitted that the police had taken over the possession from the Trust, but the learned counsel laid much emphasis and stress on the fact that the Civil Court had not believed the possession of the Trust. 8 On one hand, the possession was taken over by the police from the Trust pursuant to the preliminary order passed by the Executive Magistrate under Section 145 of the Cr.P.C., and on the other, the respondent No.1, who does not admit to be in possession of the property, objects to the possession being handed over to the Trust. The respondent No.1 very successfully projected a picture that the Trust was trying to interfere with his possession as if he was very much in possession of the disputed property. By saying so, he was successful in getting the proceedings under Section 145 initiated and pursuant to the same, got the property attached through the Executive Magistrate. The Executive Magistrate, in turn, handed over the possession to the police. It appears that even the Civil Court got carried away by such picture which was projected by the respondent No.1.

Page 12 of 18 HC-NIC Page 12 of 18 Created On Sat Oct 31 02:44:34 IST 2015 R/SCR.A/5740/2015 CAV JUDGMENT 9 It appears that having realized that the proceedings under Section 145 of the Cr.P.C. have been quashed, the respondent No.1 filed an application in writing before the learned Executive Magistrate claiming possession. The Executive Magistrate rejected such application and thought fit to continue with the attachment of the property. The only reason assigned by the Executive Magistrate is that while quashing the proceedings under Section 145 of the Cr.P.C., the learned Sessions Judge has not issued any direction for restoration of the possession in favour of the Trust and also the pendency of the civil suit filed by the Trust.

10 I shall very cursorily touch the order passed by the learned Civil Judge below Exhibit: 5 in the civil suit. I should not say a word or comment anything so far as the legality and validity of the order passed below Exhibit: 5 is concerned, because it appears that an appeal from order filed by the trust is pending before a Coordinate Bench of this Court challenging the order passed by the Civil Judge below Exhibit: 5. However, for the purpose of deciding the application in hand, I may only quote one paragraph of the order passed below Exhibit: 5 :

"(17) So on the one hand, plaintiff relied upon the document which are self made or which can be created and same are suspicious one, while on the other hand possession of the defendants are established from very beginning from the Government documents or Semi Government Documents. So at this juncture more weightage should be given to government or semi government documents which are more genuine and trustworthy in nature than, what the defendants have relied upon. So it is Page 13 of 18 HC-NIC Page 13 of 18 Created On Sat Oct 31 02:44:34 IST 2015 R/SCR.A/5740/2015 CAV JUDGMENT reveals that, the defendants/ land owners were in possession over the suit property till they sold the suit property and thereafter defendants no 10 and 11, the purchaser of the property has got possession over the suit property. It is pertinent to note that, plaintiff has relied upon report of the court commissioner to show the possession over the suit property. No doubt if the court commission report is seen, it was tried to establish plaintiff's possession over the suit property. But from the above discussion, it cannot be believed at this juncture that, plaintiffs was put in possession from 19/04/2004 and onwards. So solely relying upon report of the court commission, it can not be believed that, the plaintiffs are in possession.

Even otherwise the report of the court commissioner is the weaker kind of evidence unless some corroboration is found on record. Therefore also it can not be relied upon."

"(19) So in the nutshell, plaintiffs are claiming possession relying upon the documents which can be self created or less genuine or authenticate , while on the other hand on behalf of the defendants whatever documents produced are from the Government or semi government department and therefore these documents are considered to be more genuine in compare to what plaintiffs have produced and hence more weightage should be given to documents relied upon by the defendants and accordingly defendants/land owner's possession is made out in the suit property till the suit property was sold to the defendants no 10 and 11 and thereafter it is with purchasers i.e defendants no 10 and 11. It is reveals from the documents that, the defendants no 10 and 11 have filed complaint against the plaintiffs alleging that, plaintiffs are trespassing in the suit property and trying to dispossess defendants and also initiated proceeding u/145 of Cr. P. C and in pursuance of that, the executive Magistrate has ordered to take possession and to be kept with Kamrej Police station and hence till than possession is with the Kamrej Police station."

11 The picture that emerges on the cumulative assessment of the materials on record is more than clear. The Police Officer of the Kamrej Police Station was honest enough to admit that the possession was with the Trust and the same was taken over from the Trust pursuant to the preliminary order passed by the Executive Magistrate under Section 145 of the Cr.P.C. The Court Commissioner, in his report, has shown the possession of the vacant land with the Trust. However, the learned Civil Page 14 of 18 HC-NIC Page 14 of 18 Created On Sat Oct 31 02:44:34 IST 2015 R/SCR.A/5740/2015 CAV JUDGMENT Judge refused to look into the same and thought fit to look into some government records. The respondent No.1 also admits that the possession was taken over by the police from the Trust. This admission would suggest that his entire case on the basis of which the proceedings under Section 145 of Cr.P.C. was initiated gets falsified. The respondent No.1 went before the Executive Magistrate complaining that the Trust was trying to disturb his possession, whereas he knew that he was not at all in possession.

12 The parady of the situation is that although the Trust has been successful in getting the proceedings under Section 145 Cr.P.C. quashed and such order having attained finality, yet the police is sitting tight over the possession.

13 The most glaring fact in the matter is that if the respondent No.1 claims to be in the possession of the land, then he would have raised hue and cry by now and although the Executive Magistrate refused to hand him over the possession, yet he has not thought fit to challenge such decision.

14 As a Judge, I am in a precarious situation. If I only look towards the order passed by the Civil Judge who thought fit to disbelieve the possession of the Trust and reject the injunction application, then it will be nothing short of precipitating a very highhanded action on the part of Page 15 of 18 HC-NIC Page 15 of 18 Created On Sat Oct 31 02:44:34 IST 2015 R/SCR.A/5740/2015 CAV JUDGMENT the respondent No.1 as well as the police. When the police itself admits and not disputed by the respondent No.1 that the possession was taken over from the Trust, then I am of the view that the Executive Magistrate should be directed to hand over the possession of the land to the Trust. If there is something like a Rule of law then such Rule should prevail without any technicality.

15 Mr. Nanavati, the learned counsel appearing for the respondent No.1 submitted that since the Civil Court has not believed the possession of the Trust, the police should continue to act as the receiver and the possession should remain with the police till the final disposal of the civil suit. He submitted that his client should also not be handed over the possession of the property. He submitted that the Civil Court may be asked to appoint a receiver and such receiver would take care of the property. I gave a very serious thought and consideration to such submission of Mr. Nanavati, but as discussed above, if I adopt such a course, it would be nothing short of precipitating the highhanded and illegal action on the part of the respondent No.1 including the police. As observed above, the Rule of law should prevail.

16 In the result, this application is allowed. The communication dated 28.04.2015 passed by the respondent No.3 is hereby ordered to be quashed and set aside. The Executive Magistrate, Kamrej, shall direct the Police Inspector of the Kamrej Police Station, to hand over the Page 16 of 18 HC-NIC Page 16 of 18 Created On Sat Oct 31 02:44:34 IST 2015 R/SCR.A/5740/2015 CAV JUDGMENT possession of the land in question to the petitioners herein at the earliest upon the petitioners herein producing the copy of the writ of this order. 17 The petitioners are directed not to change the nature, character and possession of the property till the final disposal of the Special Civil Suit No.265 of 2013 pending in the Court of the 11st Additional Senior Civil Judge, Surat. The 11st Additional Senior Civil Judge, Surat shall see to it that that the civil suit is taken up for hearing at the earliest and the same is disposed of within a period of six months from today. The Civil Judge shall give top priority to the aforenoted civil suit having regard to the nature of dispute.

18 The Registry is directed to forward a writ of this order forthwith to the Executive Magistrate, Kamrej as well as to the Police Inspector of the Kamrej Police Station, Surat.

(J.B.PARDIWALA, J.) FURTHER ORDER After the pronouncement of this order, Mr. Nanavati, the learned counsel appearing for the respondent No.1 submitted that it may be clarified that the findings recorded by the Court as regards the Trust being in possession of the land on the date when the same was taken over by the police pursuant to the preliminary order passed by the Executive Magistrate under Section 145 of the Cr.P.C. are tentative. There is hardly any need to clarify this aspect for the simple reason that all my observations are only in connection with the present proceedings. To be more precise only keeping in mind the proceedings under Page 17 of 18 HC-NIC Page 17 of 18 Created On Sat Oct 31 02:44:34 IST 2015 R/SCR.A/5740/2015 CAV JUDGMENT Section 145 of the Criminal Procedure Code.

(J.B.PARDIWALA, J.) chandresh Page 18 of 18 HC-NIC Page 18 of 18 Created On Sat Oct 31 02:44:34 IST 2015

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