Gujarat High Court
Khetshi Hirji Shah vs State Of Gujarat & on 21 January, 2015
Author: Jayant Patel
Bench: Jayant Patel, S.H.Vora
R/SCR.A/2855/2012 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CRIMINAL APPLICATION NO. 2855 of 2012
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KHETSHI HIRJI SHAH....Applicant(s)
Versus
STATE OF GUJARAT & 10....Respondent(s)
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Appearance:
MR BHUSHAN B OZA, ADVOCATE for the Applicant(s) No. 1
MR PK JANI, LD ADDL. ADVOCATE GENERAL with Mr.CHINTAN DAVE,
AGP for the Respondent(s) No. 8
MR HS MUNSHAW, ADVOCATE for the Respondent(s) No. 4
MR PREMAL NANAVATI, LD. ADVOCATE for MS.DILBUR CONTRACTOR,
ADVOCATE for the Respondent(s) No. 9 - 11
NOTICE SERVED for the Respondent(s) No. 1 - 3 , 5 - 7
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CORAM: HONOURABLE MR.JUSTICE JAYANT PATEL
and
HONOURABLE MR.JUSTICE S.H.VORA
Date : 21/01/2015
ORAL ORDER
(PER : HONOURABLE MR.JUSTICE JAYANT PATEL)
1. The petitioner has preferred the present petition seeking relief, inter alia, to direct CBI to investigate the complaint registered vide C. R. No.I-5/2012 with Samkhiyali Police Station.
2. We have heard Mr.Bhushan Oza, learned Counsel for the petitioner, Mr.Prakash Jani, learned Additional Advocate General with Mr.Dave, learned Page 1 of 8 R/SCR.A/2855/2012 ORDER AGP for respondents No.1, 2 and 3, Mr.Chauhan, learned Counsel with Mr.Munshaw, learned Counsel for respondent No.4 and Mr.Premal Nanavati, learned Counsel for Ms.Dilbur Contractor, learned Counsel for respondents No.9 to 11.
3. It appears that the grievance on the part of the petitioner is that the FIR is registered with the police, but no action is taken by the respondents and more particularly State machinery pursuant to such FIR. The petitioner has alleged that there is collusion between the State Officers and the so-called accused and, therefore, the petitioner has prayed that the investigation be assigned to CBI.
4. In our view, the FIR vide C.R. No.I-5/2012 of Samkhiyali Police Station came to be filed on account of the interim order dated 12.1.2012 passed by this Court in the main Writ Petition (PIL) No.19 of 2011, wherein this Court observed that in spite of the interim order passed, the construction has continued and, therefore, action be taken. This Court in the said order also observed that the action under Cr.P.C., be taken against the persons responsible for such illegal Page 2 of 8 R/SCR.A/2855/2012 ORDER act. The aforesaid interim order ultimately has merged with the final order passed by this Court on 27.6.2012 in the main petition together with the other allied matters, wherein the ultimate direction by this Court reads as under:-
We dispose of this petition with the following directions:
(1)The respondents in whose favour land came to be allotted by the Panchayat and upon such allotment whoever has made construction of any nature be it a temple or 'ashramshala' or a bungalow or a flat or residential complex are directed to remove the construction. For this purpose the Collector, KutchBhuj, District Kutch shall prepare a list of all allottees and actual occupiers of the premises and serve individual notice to such persons within a period of fortnight and also affix the notice at a conspicuous part of each of the premises directing them to remove the construction within six weeks from the date of the notice at their cost.
(2)In the event if the respondents fail to remove the construction on their own within the stipulated period as fixed above, then in that case, the Collector, KutchBhuj, District Kutch shall see to it that all such constructions are demolished with the help of State machinery and the cost of which shall be recovered from the individual allottees within a period of four weeks thereafter.
(3)The Collector, KutchBhuj, District Kutch is hereby directed to see that after the structures are erased/removed, vacant possession of the land is taken over by drawing necessary panchnama.Page 3 of 8
R/SCR.A/2855/2012 ORDER (4)Even if the construction has not been put up and the land is vacant, then in that case, the Collector, KutchBhuj, District Kutch shall takeover the possession of vacant land by drawing a panchnama.
(5)The Secretary, Revenue department and the Secretary, Panchayat department shall jointly constitute a committee under their supervision to fix the liability of the erring officers responsible for such arbitrary and highhanded action of allotting land by keeping the State Government and other authorities completely in dark. This exercise shall be undertaken and completed within a period of three months from today.
With the above observations and directions, these petitions are accordingly disposed of. However, on the facts and in the circumstances of the case, there shall be no order as to costs.
In view of the judgment pronounced today, disposing of the substantive petitions, the connected Misc. Civil Application, if any, also stands disposed of accordingly. Before parting, we may sound a note of caution that the judgment of the Apex Court as expressed in the case of Dr.G.N.Khajuria v/s. Delhi Development Authority, reported in AIR 1996 SC 253, continues to hold the field. Officers who refuse to discharge their functions and/or allow mushrooming of illegal constructions when the same is brought to their knowledge, would be liable for action, including disciplinary action.
5. The aforesaid final direction issued by this Court in the above referred order shows that though there is no express provision made for Page 4 of 8 R/SCR.A/2855/2012 ORDER preserving the action taken pursuant to the interim order, but even if it is considered with the final operative direction, the resultant effect would be that the construction is directed to be removed within the stipulated time limit and upon failure to remove the construction, further action is also ordered.
6. It is undisputed that the aforesaid very final direction passed by this Court is carried before the Apex Court in the proceedings of SLP(C) No.24672 of 2012 and the Apex Court, vide order dated 14.12.2012, has passed the following order:-
"Call for the matters on 30th January, 2013. By way of interim direction, we order that the respondents shall not demolish any superstructure made on the lands belonging to the petitioners."
7. Mr.Jani, learned Additional Advocate General appearing on behalf of the State and its officials, declared before the Court that the matter is still pending before the Apex Court. As such, the said aspect of pendency of the aforesaid SLP and the proceedings before the Apex Page 5 of 8 R/SCR.A/2855/2012 ORDER Court against the order dated 27.6.2012 passed by this Court in the PIL are not disputed by Mr.Oza, learned Counsel for the petitioner.
8. In our view, the judicial discipline demands that when the matter is pending before the Apex Court against the final order passed by this Court in the above referred Writ Petition (PIL), no direction may be issued at this stage. Further, as per the learned Additional Advocate General, when the matter is pending before the Apex Court and taking of action pursuant to the so-called FIR could be dependent upon the final order passed by this Court read with the order, if any, passed by the Apex Court, the State has not taken further action pursuant to the FIR filed. In our view, when the very order, which is the basis of the FIR is carried before the Apex Court and the matter is pending before the Apex Court, until such proceedings are finalized, the judicial discipline would demand that no direction be issued based on the FIR at this stage, which is dependent upon the final direction issued by this Court in the Writ Petition (PIL) against which the proceedings are pending before the Apex Page 6 of 8 R/SCR.A/2855/2012 ORDER Court. When no direction is called for the grievance of the petitioner that the State police are not investigating the matter and, therefore, it should be assigned to CBI also cannot be entertained at this stage.
9. Mr.Oza, learned Counsel appearing for the petitioner, however, contended that even if the pendency of the above referred proceedings before the Apex Court is there, all the affected parties have not approached before the Apex Court and, therefore, for the remaining parties or the remaining so-called accused the action may be ordered to be taken.
10. We are afraid such can be entertained at this stage. However, if the petitioner feels that the order of this Court operates and resultantly, the investigation into the FIR can proceed against the other parties, nothing prevents the petitioner from approaching before the Apex Court for such purpose, but we find that no direction deserves to be issued at this stage in the present proceedings, as prayed for.
11. Under the above circumstances, subject to the observations made, the present petition is Page 7 of 8 R/SCR.A/2855/2012 ORDER not entertained at this stage. However, it is observed and clarified that after the conclusion of the proceedings before the Apex Court or if any further direction is given in pending SLP before the Apex Court, as the case may be, the petitioner finds that no proper action is taken by the State police, the petitioner will be at liberty to move this Court for appropriate relief or appropriate direction in accordance with law.
12. The petition is disposed of accordingly. Considering the facts and circumstances, no order as to costs.
(JAYANT PATEL, J.) (S.H.VORA, J.) vinod Page 8 of 8