NILESH MANSUKHLAL TOLIYA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Instead of approaching Civil Court for getting her rights adjudicated as per the provisions of the Bombay Rent Act, the complainant has chosen to adopt a short-circuit formula by filing a criminal complaint in connection with dispute, which is purely of civil nature and as per the averments made in the complaint, no criminality involved in it. The facts which are not in dispute are as under:

(2.) There is an immovable property situated in the city of Jamnagar. The petitioners had purchased the said property wherein 9 tenants were occupying different portions of the said property. One such portion was occupied by Vallabhdas Ved, [father of respondent No. 2 herein]. The said Vallabhdas died on 21st September 1998. As per the averments in the application, the said Vallabhdas executed a will dated 2.6.1995 in favour of his son, Rajesh, by which he bequeathed the aforesaid tenanted property to Rajesh. Pankaj, another son of the deceased Vallabhdas, filed a Civil Suit being Special Civil Suit No. 141 of 1998 challenging the will executed by his deceased father on the ground that the will is bogus and that the property should be partitioned amongst the heirs of the deceased Vallabhdas. In the aforesaid suit, respondent No.2, [original complainant herein] and another sister filed affidavits stating that the will executed by their father is not a genuine will. The said affidavits are annexed with the present application at annexure 'C'. Ultimately, the plaintiff of the said suit, Pankaj, withdrew the suit, as he settled his dispute with his brother. The respondent No.2 along with another sister thereafter filed a substantive suit against their brothers, being Regular Civil Suit No. 966 of 2000 challenging the will in question executed by their father on various grounds. The said suit is still pending adjudication. The respondent No.2, original complainant has also filed a criminal complaint, which is at Anneuxre 'A' and the same is registered as Criminal Case No. 2563 of 2003. The aforesaid case is filed for offences punishable under sections 427, 34, 114 and 120.B of the Indian Penal Code. As per the averments in the said complaint, father of the complainant was a tenant of a premises situated on Central Bank Road, Jamnagar and was running his business in the name of Saurshtra Gruh Udyog. It is stated in the said complaint that the father of the complainant died on 21.9.1998 and the complainant along with her brothers and sister became the tenants by way of succession as the heirs of their deceased father and that the complainant has equal share in the tenanted property and in the goodwill of the shop. As per the averments made in paragraph 3 of the complaint, the accused, who are partners of Shreeji Builders have demolished the tenanted shop by taking advantage of earthquake, which had taken place in the town. It is also stated in paragraph 6 of the complaint that the complainant, who was residing at Baroda, went to Jamnagar on 16.6.2001 and it was noticed by her that the tenanted property was destroyed by the accused. Under the said circumstances, the aforesaid complaint is filed. Learned Chief Judicial Magistrate passed an order of inquiry under section 202 of the Criminal Procedure Code against which the petitioner has approached this Court by way of the present application for quashing the complaint under the provisions of section 482 of the Criminal Procedure Code.

(3.) Learned advocate for the petitioner, Mr. Tirmizi submitted that the petitioners, who are the owners of the property in question wanted to develop the said property and after settling the dispute with the brother of the complainant in whose favour the deceased original tenant " father of the complainant, had bequeathed the property by will, the petitioners have started demolishing the old structure. It is submitted by Mr. Tirmizi that in any case, it is not in dispute that the petitioners are the owner of the property in question, and, therefore, as owner, the petitioners are entitled to develop the property. Mr. Tirmizi submitted that dispute regarding the property in question was settled with the brother of the complainant in whose favour the father of complainant had bequeathed the property. He, therefore, submitted that the petitioners are not concerned with the interse dispute between the complainant and her brothers/sister. Mr. Tirmizi further submitted that so far as tenancy rights in the property in question are concerned, admittedly the complainant is residing at Baroda since long and was not doing business with the deceased tenant and in view of the clear provisions contained in the Rent Act, there was no question of there being any tenancy right in her favour. It is submitted that filing of such complaint is nothing but an abuse of the process of law, and nothing is required to be investigated on the basis of such complaint. Mr. Tirmizi further submitted even reading the complaint, the complainant has nowhere stated that she was residing at Jamnagar and was doing business with her father at any point of time.