Bhimsing Jesingbhai Hathila vs State Of Gujarat
2025 Latest Caselaw 5285 Guj

Gujarat High Court

Bhimsing Jesingbhai Hathila vs State Of Gujarat on 30 June, 2025

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                              R/SCR.A/8843/2025                                    ORDER DATED: 30/06/2025

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                                      IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                             R/SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 8843 of 2025

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                                               BHIMSING JESINGBHAI HATHILA & ANR.
                                                             Versus
                                                    STATE OF GUJARAT & ORS.
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                        Appearance:
                        ROBIN PRASAD(9344) for the Applicant(s) No. 1,2
                        MR MANAN MEHTA, APP for the Respondent(s) No. 1
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                           CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR

                                                         Date : 30/06/2025
                                                          ORAL ORDER

1. Rule. Learned APP waives service of notice for the respondent-State.

2. By way of this application under Section 528 of the Bhartiya Nayay Suraksha Sanhita, 2023/482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "Cr.P.C."), the applicants have prayed to quash and set aside the resolution dated 03.03.2021 passed by the District Land Gabbing Committee (Annexure-Y) and Impugned complaint being FIR C.R. No.11821005210096 of 2021 registered with Devgadh Baria Police Station, Dahod as well as all consequential proceedings arising therefrom.

3. Learned advocate appearing on behalf of the applicant submits that the applicant is innocent and has been falsely implicated in the offence. The petitioner is belonging to the

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Schedule Tribe and small farmers mainly engaged in agricultural activities and occupying agriculture land facing absolutely false and frivolous criminal case under Gujarat Land Grabbing (Prohibition) Act, 2020 (hereinafter referred to as 'GLGP Act) are constrained to approach this Hon'ble Court for quashing and setting aside impugned complaint registerd at Devgadh Baria Police Station and also all further proceedings including charge- sheet dated 50.04.2021 and also proceeding of Sessions Case No. 47/2021 pending before the Ld. Special Court and Sessions Judge, Dahod. It is submitted that that initially petitioners had filed Special Criminal Application No. 9416 of 2021 challenging the constitutional validity of the Gujarat Land Grabbing (Prohibition) Act, 2020 on the ground of being ultra vires to the Constitution of India along with prayer to quash and set aside the impugned Criminal Complaint in the present petition. The Coordinate Bench of this Court by order dated 24.09.2021 were protect the petitioners by staying all further proceedings of the impugned FIR till final disposal of the said petition.

4. It is further submitted that the petitioners and their family have been in possession of land bearing Survey No. 61/1/6 at Karamsad for over 60 years with the authority's permission, and such long, peaceful, and uninterrupted possession cannot be termed illegal. If, as per the DILR measurement, the petitioners are shown to be in possession of Survey No. 74/1/2, it is due to a numbering error by the authorities and not due to any encroachment. Even if the allegations in the FIR are taken at face value, they do not constitute any offence of trespass or land grabbing and reveal, at best, a civil dispute regarding the measurement and identity of adjoining lands. The GLGP Act is

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meant to prevent land grabbing, not to resolve civil disputes or dispossess persons in settled possession. Misusing the Act to settle a boundary dispute is manifestly arbitrary and an abuse of process. The DILR had informed the committee on 08/02/2021 that both parties had agreed to drop the measurement due to settlement. However, on 12/02/2021, the Resident Collector directed the measurement to proceed, leading to a hurried measurement on 27/02/2021 and a decision on 03/03/2021 to register an FIR, which was filed on 11/03/2021. This sequence reflects favoritism towards the complainant, rendering the proceedings arbitrary and illegal. Further, the name of Respondent No. 5 was entered into revenue records only in 2020, 18 years after the death of the predecessor, and soon thereafter, Respondent No. 5 initiated measurement and filed a false and frivolous complaint alleging land grabbing. In reality, the petitioners have not grabbed any land of Respondent No. 5; instead, Respondent No. 5 has misused the revenue process to file a vexatious complaint, making the petitioners victims of systematic fraud. It is therefore, submitted that the application may be allowed.

5. The learned APP appearing on behalf of the respondent- State has opposed the present application, submitting that the applicant is actively involved in the offence. The charge sheet has been filed, and sufficient material has been collected. Pursuant to the order passed by the Land Grabbing Committee and the Resident Additional Collector, the DILR, Dahod, was informed to carry out the measurement of Revenue Survey No. 74/1/2, the disputed land, and was further directed to verify possession and identify any encroachment over the disputed property. An

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opinion was accordingly submitted. In pursuance of the communication dated 5th January 2021, the DILR Office communicated with the Land Grabbing Committee, clearly stating that in the presence of the City Survey Officer and the Forest Officer, measurements of Revenue Survey No. 74/1/2 and Survey No. 61/1/5/6 were carried out in connection with online applications dated 2nd November 2022 and 28th November 2022. As the present applicant failed to pay the requisite fee, respondent No. 5 paid the same. Pursuant to this payment and the order of the Resident Additional Collector, the map was prepared, and the measurement was conducted, which is produced at (Annexure-X). Thereafter, the Land Grabbing Committee, in the presence of ten members, initiated proceedings (Annexure-Y) and concluded upon verification that the two survey numbers are different. Survey No. 74/1/2 measures 1.29 hectares. In the presence of the Forest Officer, the meets and bounds were fixed, and it was found that the present applicant had encroached upon Revenue Survey No. 61/1/5/6 and had constructed a hut on the disputed land. Accordingly, it was decided to lodge a complaint. Hence, prima facie encroachment was established, and after collecting material, the complaint came to be filed. It is therefore requested that the present application be dismissed, as an earlier application challenging the vires has already been dismissed, the trial is in progress, and disputed questions cannot be examined while exercising jurisdiction under Section 528 of the BNSS and Articles 226 and 227 of the Constitution of India.

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6. Having heard the learned advocates for the respective parties and having perused the record, it appears that the accused persons namely (1) Bhimsing Jesingbhai Hathila and (2)Chanubhai Bhimsingbhai Hathila, have constructed a hut and are residing in it on a portion of land bearing Survey No. 74/P.1/ P.2 , situated at Vindoliya Uber Faliya, and have thereby encroached upon and illegally grabbed the land and made construction of hut on the land. The land bearing Revenue Survey No. 74/P.1/P.2, admeasuring 129.00 Hec-are-acre, situated at Prindoliya, Taluka Devgadh Baria, under the Forest Department, Panchmahal, Godhra, was ordered to be permanently allotted to the father of respondent No.5, Dhanabhai Valabhai, by the Collector, Panchmahal, under Order No. Jaman/Jungle/Vashi/Baria/2108 to 2144 dated 05.04.1997, for the purpose of legal cultivation and possession. Based on this, mutation entry No. 405 dated 01.09.1997 was recorded in the revenue records in the name of the father of respondent No.5 is material, and subsequently, the sanad for the land was also issued in the name of Dhanabhai Valabhai by the Collector, Panchmahal. Thus, the said land was permanently allotted to the father of the respondent No.2, and he has inherited rights over this land.

7. Considering the above facts, it appears that no person other than the respondent NO.2 applicant has any right or share over the land bearing Survey No. 74/1/1/2, admeasuring 129.00 Hec-are-acre. However, according to the respondent No.5-complaint, the accused herein applicant illegally entered the land, harvested the crops cultivated by the applicant

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accused, and even constructed a temporary structure to assert their possession. Therefore, the respondent No.2 had also applicant lodged a complaint at Devgadh Baria Police Station on 02/07/2020 under IPC Sections 143, 147, 148, 447, 427, 504, and 506(2) and further, the respondent No.5 has also initiated proceedings to measure the land to prove that he is in possession of the same area allotted to him by the Collector, Panchmahal. However, the applicants-accused have obstructed the measurement process. During the site inspection, one of the accused, Bhimsing Jesingbhai Hathila, in his statement recorded before the Mamlatdar, Devgadh Baria, has admitted that the lands mentioned by the respondent no.2 (Survey No. 74/1/1/2) and the land in possession of the accused (Survey No. 61/1/5/6) both are separate.

8. In view of the above, there is no dispute regarding the location of land and ownership of land being Survey No. 74/1/1/2 which is owned by respondent No.5. However, the present dispute has arisen due to the accused has forcibly and illegally entering the applicant's land bearing Survey No. 74/1/1/2 and made an encroachment. Further, an opinion was given to register the complaint under the Land Grabbing Prohibition Act. Both the complainant and the accused had submitted online applications to the office of the DILR for measurement of Survey No. 74/1/1/2 and Survey No. 61/1/5/6, respectively. Accordingly, on 03.12.2020, when the Circle Surveyor, Devgadh Baria, Mr. M.L. Kharadi, visited the site for measurement, it was found that both parties were in

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possession of the respective property, and hence, the surveyor recorded statements recommending dropping the measurement application. In view of this, it was decided that the boundaries of the land allotted from forest land should be determined in coordination with the Forest Department. Therefore, letters dated 05.02.2021 and 12.01.2021 were issued from the office to the DILR, instructing them to collect the required measurement fees from the applicant and carry out the measurement. Thereafter, accordingly, the measurement was conducted by the DILR on 19.02.2021, and the measurement sheet was submitted on 23.02.2021, which clearly shows that the accused applicant No.1, Bhimsing Jesingbhai Hathila, who is in possession of Survey No. 61/1/5/6, has illegally encroached upon the complaint's land bearing Survey No. 74/1/1/2 and has constructed a hut on it.

9. In the aforesaid background, it clearly appears that the present applicant has encroached upon the land belonging to respondent No. 5 (original complainant). As per the object of the Land Grabbing Act, which aims to curb the increasing illegal activities relating to land, such as encroachment, forcible possession, or vacating land by law-breaking groups, the present case falls within its ambit. Section 2(e) of the Land Grabbing Act defines "land grabbing" as under:

"land grabbing" means every activity of land grabber to occupy or attempt to occupy with or without the use of force, threat, intimidation and deceit, any land (whether belonging to the Government, a Public Sector Undertaking, a local authority, a religious or charitable institution or any other private person) over which he or they have no ownership, title or physical possession, without any lawful entitlement and with a view to illegally taking possession of such land or

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creating illegal tenancies or lease or licence, agreements or transfer or sale or by constructing unauthorized structures thereon for sale or hire or use or occupation of such unauthorized structures and the term "grabbed land" shall be construed accordingly,"

In the present case, the land is adjacent to the land of the accused, and the competent authority has carried out measurement in the presence of the Forest Officer and other Government Officers. After due demarcation, it was found that the present applicant and other accused have encroached upon the land. Hence, the said act of encroachment is an unlawful activity prohibited under the Act, as the applicant has retained unlawful possession of the property. Therefore, the activity is unlawful under Sections 3 and 4 of the Land Grabbing Act.

10. It appears that, prior to the lodging of the complaint, the Committee inquired into the allegations and, upon such inquiry, found that the applicant was in possession of the land without lawful authority. Thereafter, the police authority conducted the investigation. This is not a case where the State has registered a complaint without verifying any material or documentary evidence. As per Section 11 of the Act, once it prima facie appears that private persons have grabbed the land and are land grabbers, the reverse burden shifts upon the applicant-accused to prove that they have not grabbed the land. The applicant is required to establish this defence during the trial, and the Special Court has ample powers under Section 9 of the Act to determine this issue.

11. Considering the statutory provisions and the procedure

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followed prior to the lodging of the complaint, the authority has complied with the provisions of law and concluded that the present applicant is in illegal occupation and possession of the land belonging to respondent No. 5. Consequently, the complaint was lodged, and a charge sheet was filed, culminating in Special Land Grabbing Case No. 34/2025, which is pending adjudication.

12. The Court deems it apposite to refer to the judgment passed by the Apex Court in the case of Supriya Jain v. State of Haryana, reported AIR 2023 SC(Criminal) 1101 and in the case of Ramveer Upadhyay and Anr. vs. State of U.P. and Anr. reported in 2022 OnLine SC 484, it is observed and held by the Apex Court that the High Court, while exercising jurisdiction under Section 528 of BNSS/482 of the Cr.P.C, would not ordinarily embark upon an enquiry into whether the evidence is reliable or not or whether there is reasonable possibility that the accusation would not be sustained and hold mini trial.

13. It is necessary to consider whether the power conferred by the High Court under section 528 of BNSS/482 of the CrPC is warranted. It is true that the powers under Section528 of BNSS/ 482 of the CrPC are very wide and the very plenitude of the power requires great caution in its exercise In this regard, this Court deems it fit to refer to the judgment of the Hon'ble Apex Court in the case of Central Bureau of Investigation v. Aryan Singh reported in 2023 SCC OnLine SC 379.

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14. In view of the above, no case is made out either under Section 528 of the BNSS or under Articles 226 and 227 of the Constitution of India to quash and set aside the proceedings, as prima facie material has been collected, and disputed questions of fact cannot be gone into at this stage. Accordingly, the application stands dismissed. Any objections regarding measurement or any action taken by the DILR authority may be raised by the applicant by taking recourse to the remedies provided under the relevant special statute or law. Even during the trial, the applicant shall have the liberty to raise these contentions and shall be required to prove their case, as discussed earlier, since the burden now lies upon the accused to establish that they are not land grabbers.

15. However, the observations made herein above are tentative in nature and will not cause any prejudice to either party at the trial. Learned Trial Court shall have to decide the allegations levelled in the complaint on its own merits without being influenced by any of the observations made in the order. Rule is discharged. Direct service is permitted.

(HASMUKH D. SUTHAR,J) ALI