KANUBHAI SHAMAJIBHAI DAYANI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) BY way of this petition under Article 226 of the Constitution of India, the petitioners " original complainant have prayed for an appropriate Writ, direction and order directing the respondents to take immediate action on the complaint of the petitioners and proceed in accordance with the provisions of Criminal Procedure Code for registering the offence as well as making arrest of the culprits.

(2.) IT is the contention on behalf of the respective petitioners that one Vanmalibhai Tribhuvanbhai was the owner of a parcel of land bearing Final Plot No. 116 of Katargam Town Planning scheme No. 49, who died on 13. 12. 2000. That Vanmlibhai was survived by his widow Savitaben and Son Champakbhai. Champakbhai released his rights from the land in question on 10. 01. 2003. However, Mamlatdar Surat City ordered regarding Savitaben and Champakbhai are to be continued as legal heirs of late Champakbhai on 21. 04. 2003. It was after the registered sale deed dated 30. 01. 2003, Champakbhai executed power of attorney in favour of his mother Savitaben. The said Satvitaben executed a registered Sale Deed dated 30. 01. 2003 in favour of Shantibhai Dhanani and Batukbhai Dudhat and the same is registered with the Sub- Registrar at Katargam, Surat. That the petitioners purchased the said parcel of the land by Registered Sale Deed dated 30. 09. 2004 from Shantibhai Virjibhai Dhanani and Batukbhai Nanjibhai Dudhat. That one person Madhubhai Virjibhai Patel has by registered Sale Deed dated 23. 04. 2003 and 29. 04. 2003 sold the same land bearing Final Plot No. 116 of Katargam Town Planning Scheme No. 49 to his wife and children on the basis of alleged power of attorney of Savitaben and Champakbhai. That one Madhubhai Patel in collusion with his own family members and in connivance with the Government Officers executed the Sale Deed as alleged power of holder, in spite of the fact that the original land owner Savitaben had already sold the same land to Shantibhai and Batukbhai much prior to the date of said alleged transaction. That Civil Suit came to be filed in the Court of Civil Judge (S. D.), Surat bearing No. 385 of 2003 against Savitaben, Champakbhai, Batukbhai and Shantibhai Virjibhai by Madhubhai's Wife Vimlaben, Son Yogesh and others for declaration and permanent injunction claiming that the said defendants have no right to create any kind of obstruction in their alleged possession. It is the case on behalf of the petitioners that said persons filed second Civil Suit bearing No. 355/2004 against the Surat Municipality, Surat Urban Development Authority, Town Planning Authority, Batukbhai and Shantiben. That Madhubhai Virjibhai filed Special Civil Suit bearing No. 320 of 2005 against Batukbhai, Shantibhai, petitioners and Champakbhai and prayed for temporary injunction, which was subsequently vacated. That Madhubhai moved matter further by preferring Appeal From Order being A. O. No. 149 of 2006 which is pending for admission before this Court and this Court has passed an order directing to maintain status quo as to the condition of the land. It appears that some proceedings came to be initiated before the Revenue Authorities with regard to the Entry in the Revenue records, which reference is made in the petition. It is the case on behalf of the petitioner that respondent No. 4 herein "madhubhai Virjibhai Dhanani, has committed an offence punishable under Sections 120b, 192, 196, 209, 420, 467, 468, 469, 471 of the Indian Penal Code in view of the fact that as on date of the alleged Sale Deed the land was an agricultural land and it cannot be sold in parts as the same would straightway violate the provisions of Prevention of Fragmentation of Agricultural Lands Act; the requisite permissions were undisputedly not obtained by Madhubhai prior to the Sale Deed and the same would therefore, render the agreements as void and non-est; even then it is sold to his wife and children by creating small parcels of land in violation of Fragmentation Act that is an obvious attempt to create rights on the basis of a Sale Deed that are executed by the vendor as power of attorney. It is the case on behalf of the petitioners that the petitioners being purchaser for consideration of valid sale deed came to know about such fraudulent and illegal transaction, therefore, filed complainants before the police authorities i. e. Director general and Inspector general of Police and secretary, Home department pointing out that in spite of the petitioners making out a clear case of criminal offence in respect of property and filing complaint on 26. 12. 2006, no actions are taken by the police authorities so far and even the complaint filed by the petitioners is not registered as FIR by the concerned police officers and even Director general and Inspector general of Police and secretary, Home department, have not taken any action, therefore, the petitioners have preferred the present petition under article 226 of the Constitution of India for the aforesaid reliefs, more particularly, directing respondent Nos. 1,2 and 3 and the Police Officer of the concerned Police Station and/or Director general and Inspector general of Police to register the complaint submitted by them as FIR and further investigate the same under the provisions of Criminal Procedure Code.

(3.) MR. G. M. Joshi, learned Advocate appearing on behalf of the petitioners has heavily relied upon the decision of the Hon'ble Supreme Court in the case of Prakash Singh Badal and Anr. v/s. State of Punjab and Ors. reported in (2007) 1 SCC 1, more particularly, paragraph Nos. 63 to 72 of the said judgment. He has also relied upon the decision of the Hon'ble Supreme Court in the case of Lallan Chaudhary and ors. V/s. State of Bihar and Anr. reported in 2006 AIR SCW 5172 in support of his submission that when any information is given to the concerned Police Officer informing cognizable offence, the concerned Police Officer is duty bound to register the case on receiving such information as required under Section 154 of the Criminal Procedure Code. It is also further submitted and as held by the Hon'ble Supreme Court in the case of Prakash Singh Badal (supra), when any information is furnished to the concerned Police officer with regard to cognizable offence, he is duty bound to record the same as FIR and the concerned Police Officer cannot embark upon an enquiry as to whether the information laid by the informant is reliable and genuine and refuse to register a case on the ground that the information is not relevant or credible. The Officer is statutorily obliged to register a case. Therefore, it is requested to allow the present application and direct the concerned Police Officer to register the complaint as FIR and further investigate the case as per the Criminal Procedure Code.