NEUTRAL CITATION
R/SCR.A/9343/2021 ORDER DATED: 08/08/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 9343 of 2021
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PATHAN FEROZKHAN ALAFKHAN
Versus
STATE OF GUJARAT
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Appearance:
MR. RUSHANG D MEHTA(6989) for the Applicant(s) No. 1
for the Respondent(s) No. 2,3,4,5,6
MR DHAWAN JAYSWAL, APP for the Respondent(s) No. 1 - State
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 08/08/2023
ORAL ORDER
1. Challenge in this application is made by the applicant under Articles 226/227 of the Constitution of India to the impugned judgment and order dated 30.07.2021 passed by the learned 6 th Additional Sessions Judge, Mehsana in Criminal Revision Application No.69 of 2019, whereby the Sessions Court, being a Revisional Court, has rejected the application and confirmed the order dated 06.08.2019 passed by the learned trial Court i.e. Additional Chief Judicial Magistrate, Kadi in Criminal Inquiry No.23 of 2012, whereby the learned trail Court has rejected the application under Section 203 of the Code of Criminal Procedure, 1973, which was for lodging the complaint against the present respondents No.2 to 6 under Sections 427, 447 and 120B of the Indian Penal Code.
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NEUTRAL CITATION R/SCR.A/9343/2021 ORDER DATED: 08/08/2023 undefined
2. The brief facts of the present case are as under : 2.1 That allegedly, the applicant has encroached the Government land and since the Nagarpalika has removed such illegal encroachment, the applicant has raised his grievance against the officers and office bearers of the Nagarpalika concerned at the relevant point of time. 2.2 Hence, the applicant has made a complaint before the learned trial Court against the applicants for the offences as noted above and it has culminated into Criminal Inquiry Case No.23 of 2021, wherein the learned trail Court has directed the police authority under Section 202 of the Code to submit report. The police authority has produced the report and the learned trial Court has, vide impugned order dated 06.08.2019, rejected the Criminal Inquiry No.23 of 2012.
2.3 Being aggrieved, the applicant has approached the learned Sessions Court by filing Criminal Revision Application No.69 of 2019 and the learned 6 th Additional Sessions Judge, Mehsana vide judgment and order dated 30.07.2021 rejected the said application and confirmed the order passed by the learned trial Court.
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NEUTRAL CITATION R/SCR.A/9343/2021 ORDER DATED: 08/08/2023 undefined 2.4 Hence, this application with concurrent findings of both the learned Courts below.
3. Heard learned advocates.
4. Learned advocate Mr.Mehta for the applicant has submitted that the applicant was occupying the shop since 1998 and was paying the municipal taxes. He has submitted that the applicant was having the registration under the Shops and Establishment Act. He has submitted that there are other shops in the lane and only one shop of the applicant was demolished by the Nagarpalika. He has submitted that no summons under Section 160 of the Code was served to the applicant. He has submitted that the applicant has therefore, given a complaint before the learned trial Court and the learned trial Court has directed the concerned police authority to submit the report under Section 202 of the Code, however, the police authority did not make any inquiry till 2019. He has submitted that from the record received under the Right to Information Act, it is crystal clear that the respondents have committed an offence as alleged in the complaint. He has submitted that as the applicant is a political leader of opposition party, the respondents have demolished his shop being a ruling party. Page 3 of 8 Downloaded on : Sun Sep 17 00:43:12 IST 2023
NEUTRAL CITATION R/SCR.A/9343/2021 ORDER DATED: 08/08/2023 undefined He has submitted that they have kept grudge against the applicant politically and thereby committed an offence in question. He has submitted that the learned Courts below have erroneously rejected the application of the applicant. He has submitted that the learned Courts below have not appreciated the facts and evidence produced by the applicant on record. He has submitted that the applicant has submitted an application Exh.8 before the learned Revisional Court and raised his grievance and without adjudication of that application, the learned Revisional Court has decided the main revision, which is an error on the part of the learned Revisional Court. He has submitted that therefore, this matter may be remanded back to the learned Revisional Court concerned for fresh adjudication. He has submitted that this application may be allowed by exercising the inherent powers under Article 226/227 of the Constitution of India in favour of the applicant.
5. Per contra, learned APP for the State has submitted that the learned Courts below have not committed any error which requires interference by this Court. He has submitted that the applicant has never produced documents of ownership of the shop in question and therefore, the Nagarpalika has demolished it. He has submitted that the authority concerned has acted in accordance with law and Page 4 of 8 Downloaded on : Sun Sep 17 00:43:12 IST 2023 NEUTRAL CITATION R/SCR.A/9343/2021 ORDER DATED: 08/08/2023 undefined there is no error committed by the authority concerned. He has submitted that the applicant has never supported the police authority in the inquiry proceedings. He has submitted that the applicant has made wrong and false allegations upon the officers of the Nagarpalika. He has submitted that the concerned authority have published public notice in the newspaper before one month and thereafter the authority has demolished the illegal construction, which are on the government land. He has submitted that the applicant has encroached the government land, which is removed by the authority in accordance with law. He has submitted that the applicant has argued the main revision and after hearing the parties, the learned Revisional Court has finally adjudicated the application. He has submitted that the applicant has never raised any grievance before the learned Revisional Court that before adjudication of main matter, his application Exh.8 be decided first. He has submitted that in peculiar facts of this case, this Court should not exercise the powers under Articles 226/227 of the Constitution of India in favour of the applicant. He has submitted that this application may be dismissed.
6.1 I have heard rival submissions made by the learned advocates for the respective parties. I have perused the documents available on record. From the record, the Page 5 of 8 Downloaded on : Sun Sep 17 00:43:12 IST 2023 NEUTRAL CITATION R/SCR.A/9343/2021 ORDER DATED: 08/08/2023 undefined following are the undisputed facts :
The applicant is a political leader.
No document of ownership of the shop in question was produced by the applicant before the learned Courts below.
There is no evidence of any loss to the applicant during the demolition, as alleged.
The applicant has not supported in the inquiry proceedings, as ordered by the learned trial Court under Section 202 of the Code.
The Nagarpalika has published notice in the newspaper before one month from the alleged incident. Respondents No.2 to 6 are the officer bearers of the Nagarpalika.
They have acted in accordance with law. The notice was also pasted at the place of incident. 6.2 In view of above undisputed facts as well as considering the documents on record, the following points are weighed with this Court for consideration : The alleged incident is of the year 2012. The applicant has filed an application before the learned trial Court directly and the learned trial Court has Page 6 of 8 Downloaded on : Sun Sep 17 00:43:12 IST 2023 NEUTRAL CITATION R/SCR.A/9343/2021 ORDER DATED: 08/08/2023 undefined directed the concerned police authority under Section 202 of the Code to submit the report after inquiry. The police authority has submitted its report before the learned trial Court in Criminal Inquiry Case No.23 of 2012 stating that the applicant is not cooperating the inquiry proceedings.
Considering the report submitted by the police authority, the learned trial Court has, vide order impugned dated 06.08.2019, rejected the application of the applicant, by observing that the applicant has not produced any document regarding the ownership of the shop/land in question nor has cooperated the inquiry proceedings. The trial Court has also observed that the Nagarpalika has called for the opinion of the land in question from the various authorities, where all the authorities have clearly opined that the land in question is the government land and there was an encroachment by the applicant.
The Nagarpalika has issued public notice in the newspaper in advance before more than one month. The land in question is the government land which is encroached by the applicant.
The applicant has produced his written arguments for the revision application at Exh.7 on 25.02.2020 and thereafter on 19.03.2020, he has submitted an Page 7 of 8 Downloaded on : Sun Sep 17 00:43:12 IST 2023 NEUTRAL CITATION R/SCR.A/9343/2021 ORDER DATED: 08/08/2023 undefined application at Exh.8 for producing additional documents which he could find from his house later on. Further, from record it transpires, that the learned Revisional Court has heard both the learned advocates for the respective parties at length and adjudicated the revision application, on merits. At that time, the applicant has not taken any objection before the learned Revisional Court during the course of arguments and now, the applicant has contended to remand the matter back to the learned Revisional Court at this stage, is nothing but the dilatory tactic, which is not permissible. The learned Revisional Court below has also confirmed the order of the learned trial Court, after considering the material available on record.
There are concurrent findings of the Courts below. The learned Courts below have not committed any error, which requires interference by this Court.
7. In view of above peculiar facts and circumstances of the case as well as the concurrent findings of the learned Courts below, this application needs to be dismissed and is dismissed accordingly.
(SANDEEP N. BHATT,J) M.H. DAVE Page 8 of 8 Downloaded on : Sun Sep 17 00:43:12 IST 2023