Bombay High Court

Mukund Patel And Ors vs Senior Inspector In Charge And Ors on 2 March, 2017

Bench: A.S. Oka

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               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                     CRIMINAL APPELLATE JURISDICTION
                   CRIMINAL APPLICATION NO. 1269 OF 2010



 Mukund Patel and Others.                          ..      Applicants
        Vs
 Senior Inspector In Charge of 
 Kasarvadavali Police Station and Others.          ..      Respondents
        -

Shri Subodh Desai along with Ms. Sarchitta Sridhar i/b S. Mahomedbhai & Co for the Applicants.

Shri K.V. Saste, APP for the Respondent No.1.

                                 CORAM  :      A.S. OKA & 
                                               SMT.ANUJA PRABHUDESSAI, JJ

                                 DATED    :    2ND & 3RD MARCH 2017


 ORAL JUDGMENT : (PER A.S. OKA, J)



 1.                Called   out   for   final   hearing.     Heard   learned   counsel

appearing for the Applicants. The prayer in this Application under

Section 482 of the Code of Criminal Procedure, 1973 (for short "CrPC")

is for quashing the First Information Report (FIR) registered at the

instance of the second Respondent for the offence punishable under

Clauses (iv) and (v) of Sub-section (1) of Section 3 of the Scheduled

Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (as it

stood prior to the amendments made by the Act No.1 of 2016). The

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prayer for quashing under Section 482 of the CrPC is made on the

ground of abuse of process of law and on the ground that the

registration of FIR is malafide.

2. In the statement of the second Respondent on the basis of

which FIR was registered, he has alleged that he belongs to a Scheduled

Caste. The complaint made by him is in respect of the land bearing City

Survey No.120 Hissa No.10 admeasuring 0.84 Hectares at Village

Kolshet, Thane. He claimed that the name of his grand-father was

mutated in the revenue records in the cultivation column and his grand-

father used to take paddy crop on the said land. He has alleged that in

the year 1991, one Chandulal Chunilal Patel had claimed that there is a

development agreement executed by the second Respondent's mother

and maternal Aunt in favour of M/s. Patel Builders. M/s. Patel Builders

entered into a transaction with respect of the said land with M/s. Rutu

Builders. In the year 2006-2007, one Shri Mukund Patel, the first

Applicant with the assistance of the other three Applicants illegally

dispossessed the second Respondent after demolishing the existing

structure/house. It is alleged that thereafter, the said Mukund Patel

made entries in the 7/12 extracts. It is further alleged that the Writ

Petition No.6731 of 2009 was filed by the second Respondent for

restraining the first Applicant from carrying on any construction activity

on the suit land. This Court has granted stay. It is alleged that though

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the Applicants were aware that the second Respondent belongs to

Scheduled Tribes, they forcibly took the possession of the said land.

3. The learned counsel appearing for the Applicants invited

our attention to the fact that the FIR has been registered on 10 th March

2010. He also invited our attention to the Judgment and Order dated

4th February 2010 passed by a Division Bench of this Court in Writ

Petition No.6721 of 2009 filed by the first Applicant and others. By the

said Judgment and Order, the said Writ Petition was dismissed. He also

invited our attention to the assertions made by the second Respondent

in Suit No.202 of 2006 filed by him in the Court of 2nd Joint Civil Judge,

Senior Division at Thane. The said suit related to the said land as well

as few other lands. He also pointed out that in the said suit, the second

Respondent has stated that he was in possession of the said land till the

year 1999. It is pointed out by the learned counsel appearing for the

Applicants that by an order dated 26 th July 2006 passed by the learned

2nd Joint Civil Judge, Senior Division, Thane, the Application for

injunction made by the second Respondent has been rejected. He

pointed out the prima facie findings recorded in the said judgment and

order. He also invited our attention to the order dated 4 th July 2007

passed by the learned 2nd Joint Civil Judge, Senior Division, Thane in a

suit filed by M/s. Rutu Developers Private Limited against the second

Respondent and others in which the Defendants in the said suit have

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been restrained by an order of temporary injunction from obstructing

the possession of the said Plaintiffs over the land subject matter of this

Application. He alleged that even going by the case made out by the

second Respondent in the suit filed by him, the second Respondent

was not in possession of the said land after the year 1999 and the

First Information Report was belatedly registered on 10 th March,

2010. He, therefore, urged that the act of registration of the first

information report is an abuse of process of law and in any case

the assertions made by the complainant are completely false.

None has appeared for the second Respondent yesterday and

today. The learned APP supported the case of the second

Respondent.

4. We have considered the submissions. The clauses (iv)

and (v) of sub Section (1) of Section 3 of the said Act of 1989 as it

stood before the amendment carried out by the Act No.1 of 2016

were applicable in a case where a person not being a member of a

Scheduled Caste or Scheduled Tribe wrongly occupies or cultivates

any land owned in possession of or alloted to or notified by any

Competent Authority to be alloted to a member of a Schedule

Caste or Schedule Tribe or that he gets such land transferred to

him. Clause (v) is attracted when a person not being a member

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of a Schedule Caste or Schedule Tribe wrongly dispossess a

member of Schedule Caste or Schedule Tribe from his land or

premises or interferes in the enjoyment of his rights over any land

premises or water.

5. The Exhibit D is a copy of Special Civil Suit No. 202 of

2006 filed by the second Respondent against the Developers. The

land bearing Survey No.120, Hissa No.10, which is the subject

matter of the impugned First Information Report is one of the suit

lands. According to the case made out therein, the second

Respondent who was one of the plaintiffs was legal heir of one

Devu Nausha Mahale. The case made out in the suit is that the

said Devu was murdered in the year 1988 leaving behind his two

daughters Jankibai and Yamunabai. Yamunabai appears to be the

mother of the second Respondent. It is claimed that the said Devu

was in possession of the suit lands. Paragraph (1) contains a

specific assertion that the Plaintiffs in the said suit were in

possession of the said land till the year 1999. The Paragraph (6)

contains an averment that the Plaintiffs called upon the first

Defendant developer (M/s. Rutu Developers Pvt. Ltd.) to stop the

construction work on the suit lands. It is alleged that when the

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Plaintiffs approached the police, they were advised to go to the

Civil Court. A reference is also made to the proceedings under the

Maharashtra Land Revenue Code, 1966 before a Revenue Officer.

The suit proceeds on the footing that the said Developer is acting

on the basis of the development agreement dated 2 nd June, 2001

as in the plaint, a specific prayer is made for declaration that the

said development agreement is sham and bogus and is not binding

on the Plaintiffs. The second prayer is for a declaration that the

Plaintiffs are the owners of the suit land. The third specific prayer

is for injunction restraining the Developer from carrying out any

construction work and from parting with possession of the suit

land. The suit was filed on 13 th April, 2006. Looking to the prayer

for injunction, the suit proceeds on the footing that the Plaintiffs

therein were not in possession. Application for temporary

injunction filed by the plaintiffs was rejected by the learned Joint

Civil Judge, Senior Division, on 26th July, 2006. In paragraph 9 of

the said Order, it is recorded that in Regular Civil Suit

No.175/1989, there was a compromise between Chandubhai Patel,

the said Jankibai (aunt of the second Respondent) and Yamunabai

(mother of second Respondent). The compromise recorded that,

the name of Devu was erroneously entered in the Kabjedar column

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in the revenue record in respect of the suit lands and that the said

Devu had settled the dispute after accepting Rs.1,60,000/-. In

paragraph 10 of the said order, the Civil Court recorded a prima

facie finding that the said Devu had no right whatsoever in respect

of the suit land. In paragraph 11, a finding was recorded that the

Developer who was the first defendant had completed construction

of five seven storeyed buildings on the land bearing Survey

No.120/10 and forming a part of the suit lands. Further finding is

recorded that the building plans have been sanctioned and the

purchasers have occupied the flats in the buildings. Thus, as of 26 th

July, 2006, the five seven storeyed buildings were constructed on

the land bearing Survey No.120/10 and the flat purchasers were

already occupying the flats. Perhaps that is the reason why there

is an averment in the plaint in the said suit that the plaintiffs were

in possession till the year 1999. It appears that the said Developer

filed Special Civil Suit No.4 of 2007 against the second

Respondent and others. Their claim is based on the Agreement

dated 1st June, 2001 executed in their favour by M/s. Patel

Builders. An Application for temporary injunction in the said suit

was allowed on 4th July, 2007 by the learned Joint Civil Judge,

Senior Division, Thane. Paragraph 9 of the said judgment and

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order refers to the land bearing Survey No.120, H No.10 which

was the subject matter of the suit. The said paragraph also refers

to Special Civil Suit No. 202 of 2006 filed by the second

Respondent. A prima facie finding was recorded that the

construction carried out on the land bearing Survey No. 120/10

was legal. Therefore, injunction was granted against the

Defendants (including the present second Respondent) from

interfering with the possession over the suit land of the said

developer.

6. A Writ Petition being Writ Petition No. 6721 of 2009

was filed by 11 Petitioners, out of which the second Respondent

herein was the fourth Petitioner. In the said Writ Petition, the first

prayer was for issuing a writ of mandamus for grant of lands in

favour of the Petitioners on payment of purchase price. The land

bearing Survey No.120/10 is the subject matter of the said writ

petition. Various reliefs were claimed in the said suit restraining

the said Developers from carrying out constructions. The said writ

petition came up before a Division Bench of this Court on 4 th

February, 2010. The Division Bench, while rejecting the petition,

firstly observed that the said land was never vested in the State

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Government and, therefore, there is no question of grant of the

said land. The Division Bench observed that the petition was

frivolous.

7. The aforesaid material on record shows that as of July

2006, the five seven storeyed buildings were constructed on the

said land. Suit No.202 of 2006 filed by the second Respondent

proceeds on the footing that the second Respondent and the other

plaintiffs were in possession only till the year 1999. By an order

dated 26th July, 2006, it was held that prima facie, a title was not

established by the second Respondent.

8. We have perused the statement of the first informant

on the basis of which the impugned First Information Report was

registered. It is alleged that in the year 1991, the said land was

sold to M/s. Patel Builders. It is alleged that M/s.Patel Builders

transferred the said land to another Developer (M/s.Rutu

Developers). The allegation is that in the year 2006-2007, the

Applicants forcibly dispossessed the second Respondent and others

from the suit land and made entry in the said land. The said

statement appears to be completely false as in the suit filed by the

second Respondent in July 2006, there is a finding recorded by the

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Civil Court that there were five seven storeyed buildings

constructed on the land subject matter of the first information as

of July 2006. Therefore, even assuming that the second

respondent and others were forcibly dispossessed, the forcible

dispossession must be prior to the year 2006. That is the reason

why in the plaint filed by the second Respondent and others, they

have claimed to be in possession till the year 1999. There is one

more important aspect of the matter. Though the second

Respondent refers to Suit No. 202 of 2006, he has not stated that

the Application for temporary injunction made by him and other

Plaintiffs was rejected on 26th July, 2006. The said order has been

suppressed. Moreover, a statement has been made that in Writ

Petition No.6721 of 2009, there was a stay granted by this Court.

We may note here that the said writ petition was dismissed by

Order dated 4th February, 2010 by holding that the petition was

frivolous. The statement of the second Respondent was released

on 10th March 2010. Not only that the second Respondent has not

disclosed the fact that the said writ petition was dismissed, but he

claims that there was a stay granted in the said writ petition. In

the decision in the case of State of Haryana vs. Bhajan Lal1, in

paragraph 108, the Apex Court has held thus:-

 1     AIR 1992 SC 604





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"108. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extra ordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any Court or otherwise to secure the ends of justice, though it may not be possible to lay down and precise, clearly defined and sufficiently channelized and inflexible guidelines or rigid formulae and to given an exhaustive list of myriad kinds of cases wherein such power should be exercised.

1. Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.

2. Where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.

3. Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.

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4. Where, the allegations in the F.I.R. do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.

5. Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.

6. Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.

7. Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."

9. The Category 5 and category 7 will squarely apply to

the present case. Therefore, in our view, this is a fit case to

exercise powers under Section 482 of the Code of Criminal

Procedure, 1973 for quashing the proceedings.

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10. Accordingly, we pass the following order:

ORDER :

(a) The Rule is made absolute in terms of prayer

clause (A), which reads thus:

"(A) that this Honourable Court be pleased to issue appropriate order or direction under Section 482 of the Code of Criminal Procedure in relation to FIR No.1-60 of 2010 of the Kasarvadavali Police Station and the complaints by the Respondent no.2 made on 16.10.2009 and March 10, 2010 with the Respondent No.1 to quash and set aside the same."