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HC-NIC Page 4 of 89 Created On Tue Jul 11 01:32:51 IST 2017 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 Gate2. Pursuant to the said forged power of attorney by Dineshbhai Chandubhai Patel, who happens to be an 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.
2.3 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 Gate2. Pursuant to the said forged power of attorney by Dineshbhai Chandubhai Patel, who happens to be an 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.
This is my complaint.
Before, sd/ (Mukesh Patel) I/c. Assistant Police Commissioner, 'E' Division Surat City."
19 The sum and substance of the allegations levelled against all the accused applicants is with respect to fraudulently usurping the land owned by the tribals. The case of the prosecution is that the tribals are the original owners of the disputed plot of land. The said plot of land is a new tenure land (restricted tenure). The provisions of Section 73AA of the Gujarat Land Revenue Code are applicable to the land in question. One of the coaccused namely, Balubhai Ravjibhai Aahir is said to have entered into an agreement to sale with the owners in the year 1998 with respect to the said parcel of land. Such agreement to sale is not on record. It is alleged that one forged power of attorney dated 28th March HC-NIC Page 37 of 89 Created On Tue Jul 11 01:32:51 IST 2017 1998 was created, purported to have been executed by the owners in favour of one of the applicants herein namely, Dineshbhai Chandubhai Patel, and later, one another power of attorney dated 27th March 2001 was created, purported to have been executed by the land owners in favour of Dineshbhai Chandubhai Patel. It is also alleged that there was tampering with the 7/12 extract, and on the strength of such tampering, the necessary permission to put up construction was obtained from the Surat Municipal Corporation. In the original record of rights, there is a reference of land being one of a restricted tenure covered under Section 73AA. While seeking permission from the Surat Municipal Corporation, the figure 73AA is alleged to have been scored off. Without going into any further details, the case is that the applicants, in collusion with each other, put up construction of bungalows on the disputed plot owned by the tribals and formed a society by name "China Gate". It is the case of the prosecution that in this manner, the tribals came to be cheated of their land by committing the offence of forgery, etc. 20 It is important for me to take note of the fact that all the events, as alleged, are of the period between 1998 and 2001. The construction was completed way back in the year 2001. The owners, for the reasons which I shall discuss at a later stage, kept a conspicuous silence for almost a period of more than ten years. Some of the coowners are residing just at a distance of about 400 meters from the disputed parcel of land. The construction came up before their eyes almost more than a decade back.
31 In such circumstances referred to above, it is prayed that there being merit in all the applications, those be allowed and the F.I.R. be quashed.
32 In support of their submissions, reliance has been placed on the following decisions:
• DELAY IN REGISTRATION OF FIR (1) Kishan Singh vs. Gurpal Singh & Anr. [(2010) 8 SCC 775 (2) Udaishankar Awasthi vs. State of U.P. [(2013) 2 SCC 435] (3) Lokeshkumar Jain vs. State of Raj. [(2013) 11 SCC 130] (4) Manoj Kumar vs. State of Chhatisgarh [Cri. A. No.775 of 2013] (5) Khandubhai Tandel vs. State of Gujarat [(2015) 2 GLR 146] • MATERIAL SUPPRESSION IN FIR (1) Jinofer Bhujwala vs. State of Gujarat [(2015) 2 GLH 112] • RATIFICATION (1) Pratimaben Desaid vs. State of Gujarat [(2003) 3 GLH 430] (2) Vasanjibhai Patel vs. Dep. Collector [(1998) 3 GLR 2139] (3) State of Gujarat vs. Patel Raghav [AIR 1969 SC 1297] (4) Chandulal Ranodriya vs. State of Gujarat [(2013) 2 GLR 1788] • QUASHING PETITION OPEN, EVEN AFTER HC DIRECTS FIR HC-NIC Page 42 of 89 Created On Tue Jul 11 01:32:51 IST 2017 REGISTRATION (1) Ramesh Navadiya vs. State of Gujarat [Cr.A. No.55 of 2014] (2) Ritaben Desaid vs. State of Gujarat [S.Cr.A. No.1525 of 2014] (3) Rameshbhai Navadiya vs. Ritaben [S.L.P. No.96514 of 2014] • ATROCITIES ACT (1) Sandip Ughreja vs. State of Gujarat [Cr.M.A. No.15188 of 2014] • LAW AND MORALITY (1) Proprietary Articles Trade Association vs. A.g. For Canada [AIR 1931 PS 94] (2) Chidambaram vs. Shanmugham Pillai [AIR 1938 Mad 129] (3) Jawala Ram vs. State of Pepsu [AIR 1962 SC 1246] (4) Gherulal Parakh vs. Mahadeodas Maiya [AIR (1969) SC 781] • HAVING POCKETED MONEY NO RIGHT TO LITIGATION (1) Smt. Ratnaprabhabai vs. Tulsidas V. Patel [23 GLR 213] 33 On the other hand, all these applications have been vehemently opposed by the learned Additional Public Prosecutor appearing for the State respondent. The learned A.P.P. would submit that a prima facie case is made out for investigation into the allegations levelled in the F.I.R. The learned A.P.P. would submit that indisputably, the land in question was a restricted tenure land and the provisions of Section 73AA of the Gujarat Land Revenue Code were applicable. It is submitted that HC-NIC Page 43 of 89 Created On Tue Jul 11 01:32:51 IST 2017 the socalled agreement to sale executed by the original owners in favour of Balubhai Ravjibhai Aahir in the year 1998 has not been recovered so far in the course of the investigation. There is nothing forthcoming to even remotely suggest that any consideration was paid to the original owners at the time of the execution of the agreement to sale. It is submitted that in the disputed agreement to sale, the land owners have put signatures, wherein they being illiterate persons, they are putting only their thumb impressions. The learned A.P.P. submitted that on the basis of a bogus agreement to sale and power of attorneys, the development permission was obtained from the Surat Municipal Corporation and that too by suppressing the fact that the land is of a restricted tenure. The learned A.P.P. pointed out that somehow the figure Section 73AA came to be erased from the record of rights. The learned A.P.P. submitted that the administrative law and administrative action cannot validate the acts which would attract the penal consequences or acts, which are made punishable otherwise under the law. Therefore, according to the learned A.P.P., the argument of ratification is thoroughly misconceived and without any merit. It is submitted that the Memorandum of Understanding arrived at between the land owners cannot be a ground to quash the F.I.R., as there can be no estoppel of a criminal prosecution and no ratification of a criminal offence. The learned A.P.P. would submit that as a prima facie case has been made out, the Investigating Officer should be permitted to complete the investigation in accordance with law.