Gujarat High Court
Arjunbhai Shankarbhai Rathod ... vs State Of Gujarat & 5 on 3 December, 2015
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
R/SCR.A/200/2014 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CRIMINAL APPLICATION (DIRECTION - TO LODGE
FIR/COMPLAINT) NO. 200 of 2014
With
CRIMINAL MISC.APPLICATION NO. 2013 of 2014
In
SPECIAL CRIMINAL APPLICATION NO. 200 of 2014
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ARJUNBHAI SHANKARBHAI RATHOD (ADIVASI)....Applicant(s)
Versus
STATE OF GUJARAT & 5....Respondent(s)
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Appearance:
MR AB MUNSHI, ADVOCATE for the Applicant(s) No. 1
NOTICE SERVED BY DS for the Respondent(s) No. 2 - 6
PUBLIC PROSECUTOR for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 03/12/2015
ORAL ORDER
1. By this writ-application under Article 226 of the Constitution of India, the petitioner, a member of scheduled tribe and resident of Surat, has prayed for the following reliefs:-
"(a) Your Lordships be pleased to issue a writ of Mandamus or any other appropriate writ, order and/or direction and be pleased to direct the respondent Nos. 2 and 3 to immediately direct the P.I. Khatrodara Police Station, Surat to register the F.I.R. by the petitioner at Annexure-A colly and then proceed further in accordance with law;
(b) Your Lordships be pleased to issue a writ of mandamus or any other appropriate writ, order and/or direction and be pleased to direct the State of Gujarat by way of interim relief to appoint a high rank officer to inquire and investigate into complaints given by the petitioners at Annexure-A colly and submit action taken report before this Honourable Court within stipulated time period;
(c) Your Lordships be pleased to issue appropriate writ, order Page 1 of 8 HC-NIC Page 1 of 8 Created On Fri Dec 04 02:15:45 IST 2015 R/SCR.A/200/2014 ORDER or direction quashing and setting aside the circular dated 26.07.2010 issued by respondent No.6 herein at Annexure-K as ultra-vires and illegal;
(d) Your Lordships be pleased to direct the respondent nos. 2 and 3 to immediately direct the P.I. Khatodara Police Station, Surat, to register the F.I.R. on the basis of the complaints given by the petitioners at Annexure-A colly and then proceed further in accordance with law pending the admission, hearing and final disposal of this petition;
(e) Your Lordships be pleased to direct the State of Gujarat to pay exemplary cost to the petitioners;
(f) Your Lordships be pleased to grant such other and further relief/s as are deemed fit, in the interest of justice."
2. On 29th September, 2015 this Cort passed the following order:-
"1. By this writ application under Article 226 of the Constitution of India, the petitioner has prayed for the following reliefs;
(a) Your Lordships be pleased to issue a writ of Mandamus or any other appropriate writ, order and/or direction and be pleased to direct the respondent nos.2 and 3 to immediately direct the P.I. Khatodara Police Station, Surat to register the F.I.R on the basis of the complaints given by the petitioner at Annexure-A colly and then proceed further in accordance with law;
(b) Your Lordship be pleased to issue a writ of mandamus or any other appropriate writ, order and / or direction and be pleased to direct the State of Gujarat by way of interim relief to appoint a high rank officer to inquire and investigate into the complaints given by the petitioners at Annexure-A colly and submit action taken report before this Honourable Court within stipulated time period;
(c ) Your Lordships be pleased to issue appropriate writ, order or direction quashing and setting aside the circular dated 26- 7.2010 Issue by respondent No.6 herein at Annexure-K as ultra-vires and illegal;
(d) Your Lordships be pleased to direct the respondent Nos.2 and 3 to immediately direct the P.I. Khatodara Police Station, Surat to register the F.I.R on the basis of the complaints given by the petitioners at Annexure-A colly and then proceed further in accordance with law pending the admission, hearing and final disposal of this petition;
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(e) Your Lordships be pleased to direct the State of Gujarat to pay exemplary cost to the petitioners;
(f) Your Lordships be pleased to grant such other and further relief/s,as are deemed fit, in the interest of justice.
2. The case of the petitioner in his own words as averred in the petition is as under;
2.1 The petitioner and his family members are members of the weaker section of the Society. They are primarily attached to the land and are wholly dependent upon the lands and if the petitioner is made to part with his land he would suffer huge hardship and would be rendered a destitute. The petitioners only source of livelihood is the land in dispute and if he is deprived of his only source of livelihood then he would suffer irreparable loss which cannot be compensated in terms of money.
2.2 The land bearing Survey No.96/3/2 which is now forming part of Block No.121 admeasuring 5261 sq. mtrs of lands of village Althan, Taluka: Surat City, District: Surat was owned and possessed by the forefathers of the petitioner. The land of above block number was by virtue of a mutation entry no.1194 effected on 28-10-1982 whereby the land of the petitioner was entered into as a land which was belonging to Adivasi and therefore the provisions of section 73AA of the Bombay Land Revenue Code, 1879 was effected in the revenue record and the same was certified in due course.
2.3 Pursuant to the said mutation entry in village form No.7x12 extract, section 73AA of the Gujarat Land Revenue Code, 1879 was given effect to and the said effect of Section 73AA is shown in the 7x12 extract since 1982 till date.
2.4 One Shri Dineshbhai Chandubhai Patel claims himself to be a power of attorney holder dated 27.3.2001 of the family members of the petitioner. The said power of attorney is a forged one and a bare perusal of the same would reveal that the signatures of the family members of the petitioner are appended whereas in fact they are illiterate and they used to append their thumb impression. The said power of attorney apart from the land of the petitioner is in respect of other adjoining lands of the petitioner as well. The forged power of attorney was obtained in the year 2001 by the land mafias who at present have put up a scheme on the land and there are luxurious bungalows which have been constructed on the same and the developer of the said land in dispute is one Mr. Manharbhai Kakadia and Jitubhai builder. The said scheme has been put up on the land in question by the name of China Gate-2. Pursuant to the said forged power of attorney by Dineshbhai Chandubhai Patel, who happens to be an Page 3 of 8 HC-NIC Page 3 of 8 Created On Fri Dec 04 02:15:45 IST 2015 R/SCR.A/200/2014 ORDER employee of Shri Manharbhai Kakadia, has entered into 17 different sale deeds in respect of the petitioners land as well as the land of the adjoining holders.
2.5 In the forged power of attorney apart from the land of the petitioner there are other survey numbers also mentioned. Although the non-agricultural permission was not granted in respect of the land of the petitioner yet by virtue of the said forged power of attorney, the power of attorney holder, in connivance with Shri Manharbhai Kakadia and Jitubhai Builder, got the plans sanctioned and constructed luxurious bungalows on the same as if the N.A. permission was granted in respect of the land of the petitioner.
2.6 The bare perusal of the copy of the sale deed annexed at Annexure-E colly suggest that in the sale deed at page 16, the lands of the petitioner and the lands of the other adjoining owners are mentioned in a tabular form. The land of the petitioner would appear at Serial No.6 bearing Survey No.96/3/2 Block No.121. On the next page, i.e., page No.17 of the sale deed, in paragraph-3, there is a reference of the order of N.A permission which bears the date 16-2-1999. The petitioner has already annexed copy of the N.A permission at Annexure-F to this petition. In the said N.A permission, though the land of the petitioner is not mentioned, the recital in the sale deed at page no.17 paragraph -3 bears the date of order of N.A permission. A clear cut fraud is alleged to have been committed by the beneficiaries i.e. power of attorney holders and the organizers. The provisions of section 73AA of the Land Revenue Code provides for a prior permission from the competent authority i.e. Collector if the land of a tribal is to be transferred to a non-tribal. Without obtaining such permission, no N.A permission could have been granted in respect of the land in dispute.
2.7 The power of attorney holder, in connivance with Shri Manharbhai Kakadia and Jitubhai Builder, got an MOU executed thereby defeating the rights of the petitioner and his family members. The said fact has also been mentioned in the written application for lodging a complaint/FIR on 7.10.2013 by the petitioner. The bare perusal of the said MOU would indicate that by force the petitioner and his family members were told to append their thumb impression by stating that the power of attorney that was executed in the year 2001 was correct and the bungalows that were put up on the land in dispute were also legal. In the said forged power of attorney the signatures of the family members of the petitioner were shown, whereas in the memorandum of understanding the thumb impression of the family members are appended. This would suggest as to how these head strong people by force and undue influence grabbed the land of the petitioner which is the only source of livelihood of a poor Adivasi.
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8. The petitioner through his lawyer Shri Vijay Patel had issued a public notice dated 24.3.2011 in the newspaper that no power of attorney had been executed by the petitioner and his family members to which the plot holders replied on 11.4.2011 stating that the plots were sold to them by Manharbhai Kakadia and Jitubhai Builder by virtue of the power of attorney.
2.9 That though the offences are made out prima facie against the concerned persons, the respondent no.3 has failed to register the F.I.R.
2.10 That though the petitioner has given several written complaints with supporting documents along with documentary evidence which is referred to at Annexure-A colly, the petitioners complaints has not culminated in to FIR.
3. The criminal misc. application referred to above has been filed by the applicants for being impleaded as party respondents in the main petition. According to the applicants of the criminal misc. application, they are likely to be affected if any relief is granted by this Court to the petitioner in the main petition. It is the case of the applicants that false allegations have been levelled against them of fraud etc.
4. This is one of those cases of a priceless piece of land situated in the city of Surat. Over a period of time. the city of Surat and the villages adjoining the same has gone completely in the hands of land Mafias. Over a period of time, hundreds of criminal prosecutions must have been instituted with regard to different parcels of land situated at different places. This case also appears to be one of such type. It appears from the materials on record that the case is one of breach of section 73AA of the Bombay Land Revenue Code. A restricted tenure land belonging to an Adivasi appears to have been usurped and a posh society has come up on the said land. The society consists of luxurious bungalows. There are serious allegations of forgery etc. levelled by the petitioner.
5. Surprisingly, the respondent No.3-Collector, Surat who is heading the Special Investigation Team seems to have overlooked the fraud. The police department also, as usual, seems to have turned a blind eye for some reason or the other. I am of the view that instead of issuing a mandamus straightway directing the respondents Nos.2 and 3 to register an FIR on the basis of the complaints filed by the petitioner herein, I deem it fit and proper to direct the respondent No.3- Collector, Surat as well as the respondent No.2, Commissioner of Police, Surat to undertake a detailed inquiry into the matter. The inquiry should be thorough and should not be just an eyewash. I have taken a serious note of the allegations which have been Page 5 of 8 HC-NIC Page 5 of 8 Created On Fri Dec 04 02:15:45 IST 2015 R/SCR.A/200/2014 ORDER levelled in the various complaints. Any dereliction of duty on the part of the respondents would entail appropriate legal action.
6. As observed above, land grabbing in the city of Surat and adjoining areas is at a rampage. The land which belongs to poor people more particularly the tribals have been grabbed and usurped by playing fraud of a great magnitude. Although it is the stance of the State- respondents that all possible steps are being taken to curb these type of offences, yet I am not convinced with such explanation offered by the State- respondents.
7. I, therefore, direct the respondent No.2, Commissioner of Police, Surat as well as the Collector, Surat being the head of the Special Investigation Team to immediately undertake a detailed and exhaustive investigation in this regard and file an appropriate report before this Court on or before 4th November, 2015. If I find any dereliction of duty or casual approach on the part of the respondents Nos.2 and 3 in inquiring into the matter, then I may consider transferring the entire investigation to the C.B.I.
8. The matters are treated as part heard. The Registry shall notify these matters before this Court on 27th November, 2015."
3. The order referred to above contains the factual background in which this petition has been filed and therefore I need not reiterate the facts.
4. It is brought to my notice that the order dated 29th September, 2015 passed by this Court referred to above was challenged before the Supreme Court by way of Special Leave to Appeal (CRL) (CRLMP) No.18188 of 2015. It appears that the Supreme Court rejected the permission to file the SLP.
5. Pursuant to the directions issued by this Court vide order dated 29th September, 2015 and inquiry was undertaken by the Police Commissioner, Surat City as well as by the Collector, Surat in his capacity as the Head of the special investigation Page 6 of 8 HC-NIC Page 6 of 8 Created On Fri Dec 04 02:15:45 IST 2015 R/SCR.A/200/2014 ORDER team i.e. SIT. Mr. J.K. Shah, the learned APP appearing for the State of Gujarat produced two sealed covers today containing two reports one by the Police Commissioner, Surat City and the other by the Collector, Surat.
6. I have gone through both the reports. The reports are quite exhaustive. Prima facie, it appears that all relevant aspects relating to the matter have been looked into. The necessary and relevant documentary evidence has also been annexed with the reports. The report filed by the Police Commissioner, Surat City indicates that some prima facie case is made out against the persons named therein for the offence punishable under Sections 406, 420, 465, 467, 468, 471 and 120B of the Indian Penal Code and Section 3(2) and 5 of the Prevention of Scheduled Caste and Scheduled Tribe (Atrocity) Act.
7. If the preliminary inquiry carried out by the Commissioner of Police, Surat City reveals a prima facie case as stated in the report then I expect the Commissioner to proceed further in accordance with law.
8. I clarify that I have not expressed any final opinion in this regard. It is now for the police authority to look into the same and proceed in accordance with law without being influenced in any manner by any of the observations made by this Court in the matter.
9. It goes without saying that all legal remedies available may be availed of by the persons concerned against whom the police may or may not take action in future in accordance with Page 7 of 8 HC-NIC Page 7 of 8 Created On Fri Dec 04 02:15:45 IST 2015 R/SCR.A/200/2014 ORDER law. The two reports filed by the Police Commissioner, Surat City alongwith the documents and the report filed by the Collector, Surat alongwith the documents be kept in the sealed cover on the record of the case. The Registry shall preserve the two sealed covers containing the reports in accordance with the rules.
10. With the above, this petition is disposed of. In view of the order passed in the main matter the connected Criminal Misc. Application is also disposed of.
(J.B.PARDIWALA, J.) Manoj Page 8 of 8 HC-NIC Page 8 of 8 Created On Fri Dec 04 02:15:45 IST 2015