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2021 DIGILAW 372 (GUJ)

Aamad Jusab Akhani (Khafi) v. State of Gujarat

2021-05-06

A.S.SUPEHIA

body2021
ORDER : 1. Heard the learned advocates for the respective parties through video conferencing. 2. The present application is filed under Section 439 of the Code of Criminal Procedure in connection with an F.I.R. being C.R. No.11202046210044 of 2021 registered with Jamnagar Panch “B” Division Police Station, Dist.Jamnagar for the offences punishable under Sections 4(2), 4(3), 5(a) and 5(c) of the Gujarat Land Grabbing (Prohibition) Act, 2020. 3. The brief facts of case are that one co-accused by name Vijaykumar Jentilal Malani has formed proposed nontrading corporation for carving out the plots 179 in number in old survey No.60 which has been given new survey No.131 as well as survey No.112, both of them in all admeasuring 3 hector 12 are and 77 square Meters. This land is allegedly belonging to Government. The historical background of the present land goes that originally this parcel of land was belonging to the Government which was given till or cultivate to one Bhurabhai Lidhabhai Bharvad. The tenure of him was new tenure. In the year 1995 and to be precise on 2nd January 1995, it was converted from new tenure of 29 guthas went in for construction of road. Remaining land was converted from agricultural use to nonagricultural use by payment of premium to the tune of Rs.2,00,000/on 12th September 1995. Later on, said order of making nonagricultural land came to be set aside on 17th June 1996. Being aggrieved of the said order, the owner of the land by name Narshibhai Hemantbhai challenged the same before Secretary, Revenue Department, Ahmedabad in revision. The said revisions came to be partly allowed and nonagricultural use was permitted subject to determination of premium on the basis of prevailing market rate of the said land. In this regard, the application seeking to determine the premium as per prevalent market value of the land in question was made on 5th August 2015. The spot inspection of the land was required to be made in connection with the said application. On making spot inspection of the said land, it came to the notice of the authority that the said land is being used for nonagricultural purpose and on account of such use, the permission to determine premium came to be rejected. The breach of condition of tenure drives the authority to forfeit the land to the Government as the said land was being use for residential purpose. The breach of condition of tenure drives the authority to forfeit the land to the Government as the said land was being use for residential purpose. On 25th July 2016, the order as regards forfeiting the land to the Government was passed without giving audience to the possessors of the said land. The state has directed the authorities concerned to carry out survey as regards encroachment on Government land and during such drives, it came to the notice of the authorities about these encroachments and report in this regard was made by village account on 27th November 2020. Mamlatdar got measurement done through D.I.L.R. on 5th December 2020 and got prepared measurement sheet. The first informant and village accountant made local instruction of the land and drawn panchnama. On encroachment having been proved on 5th January 2021, Mamlatdar published the public notice and informed the occupants to vacate the Government Land, otherwise, the action should be taken against the persons who have made encroachments under the provisions of The Gujarat Land Grabbing (Prohibition) Act 2020. The action has allegedly been taken without issuing notices to the occupants and merely the said public notice was affixed on the wall and public announcement was made through loud speakers by the authorities keeping the police with them. The committee, authorities and police have initiated criminal action against the present accused without following any legal procedure under the present Statue which came to be brought in operation on 29th August 2020. Though the present accused have been possessing the present land prior to declaring it Government Land on 25th July 2016. This is how, the police and authorities concerned forming the part of committee have put to use the legal provisions of this Act completely illegally and invalidly against the poor accused without any sort of legal grounds and putting the accused herein in very precarious position. 3.1 Learned advocate for the applicants has submitted that one Vijaykumar Malani had incorporated New Dared Nontrading Corporation (Scheduled), by way of the said society, he had made a layout plan comprising of 179 subplots and had handed over possession to the applicants by way of agreement to sell on different dates commencing from 2012. 3.1 Learned advocate for the applicants has submitted that one Vijaykumar Malani had incorporated New Dared Nontrading Corporation (Scheduled), by way of the said society, he had made a layout plan comprising of 179 subplots and had handed over possession to the applicants by way of agreement to sell on different dates commencing from 2012. It is further submitted that it was only after one of the co-accused namely, Vijay Malani had floated the scheme of 179 plots on the subject land, the applicants intended to purchase a plot within the said subject land. It is further submitted that the applicants, until issuance of notice dated 05.01.2021 by the Mamlatdar, Jamnagar were not aware regarding any of the proceedings as mentioned in the F.I.R. It is also submitted that applicants were not even heard before passing of the order in the proceedings initiated for breach of condition on the subject land in the year of 2016. 3.2 Learned advocate for the applicants has further submitted that the revenue authorities before passing the order of forfeiture did not provide any opportunity of hearing to the applicants, despite the fact that upon panch rojkam it was noticed by the authorities that more than 1,000 persons are residing over the subject land. It is further submitted that the applicants cannot be termed as “land grabbers” since taking in the consideration the entire picture read with the aforesaid transaction, it clearly transpired that the applicants are the victims and not the land grabbers as mentioned in the definition of “land grabber” as per the Gujarat Land Grabbing Prohibition Act. It is further submitted that even as per the revenue records, it can be deduced that from the year 1993 to 2014, the revenue authorities have never gone into the merits of the aspect that whether the subject land can be converted for nonagricultural purposes from agricultural purposes. It was only the jurisdictional part of the Collector, which attracted interference from the Revenue Department and that too was subsequently cured when the proposal was sent by the Collector qua conversion of land. It was only the jurisdictional part of the Collector, which attracted interference from the Revenue Department and that too was subsequently cured when the proposal was sent by the Collector qua conversion of land. 3.3 Learned advocate for the applicants has also submitted that even in the order passed by this Court in Special Civil Application No.15754 of 2010 dated 29.07.2013, a communication from the office of Collector, Jamnagar came to be recorded depicting the fact that the subject land could have been considered for conversion on a payment of required premium. It is further submitted that one of the recipient has challenged the public notice dated 05.01.2021 by filing Special Civil Application No.3159 of 2021 before this Court, whereby this Court vide order dated 16.02.2021 has stayed the said public notice till further orders. It is further submitted that one of the co-accused against whom similar allegations are levelled is enlarged on regular bail by this Court in Criminal Misc. Application No.2849 of 2021. It is further submitted that entire offence is pertaining to documentary evidence and the said evidence is already with the Investigating Officer and nothing remains to be recovered and/or discovered at the instances of the applicants as the chargesheet is already bing filed. It is further submitted that co-accused persons are enlarged on bail by this Court in Criminal Misc. Application No.6324 of 2021, Criminal Misc. Application No.4637 of 2021, Criminal Misc. Application No.4668 of 2021, Criminal Misc. Application No.2902 of 2021, Criminal Misc. Application No.2907 of 2021 and Criminal Misc. Application No.2908 of 2021. Lastly, it is urged by the learned advocate for the applicants that considering the aforesaid facts of the case, the applicants may be released on bail. 4. Learned Additional Public Prosecutor appearing on behalf of the respondent-State has opposed grant of regular bail considering the nature and gravity of the offence. 5. Having perused the materials placed on record and taking into consideration the facts of the case, nature of allegations, gravity of offences, role attributed to the accused, without discussing the evidence in detail, at this stage, this Court is inclined to grant regular bail to the applicant. 5. Having perused the materials placed on record and taking into consideration the facts of the case, nature of allegations, gravity of offences, role attributed to the accused, without discussing the evidence in detail, at this stage, this Court is inclined to grant regular bail to the applicant. This Court has considered following aspects; (i) The role attributed to the accused is that they had purchased the plot of land from the developer Vijay Malani who had floated the schemed; (ii) The investigation is over and the chargesheet is filed; (iii) Prima facie, the offence is of civil nature; (iv) One of the recipients of the notice has challenged the public notice by way of filing a writ petition wherein stay has been granted by this court to the public notice till further orders; (v) Considering the ground of parity that co-accused are released on bail by the Coordinate Benches of this Court; (vi)Prima facie it does not appears that the applicants are the land grabbers as mentioned in the definition of “land grabber” as per the Gujarat Land Grabbing Prohibition Act. 6. This Court has also taken into consideration the law laid down by the Apex Court in the case of Sanjay Chandra Vs. Central Bureau of Investigation, (2012) 1 SCC 40 . 7. 6. This Court has also taken into consideration the law laid down by the Apex Court in the case of Sanjay Chandra Vs. Central Bureau of Investigation, (2012) 1 SCC 40 . 7. In the result, the present application is allowed and the applicants are ordered to be released on regular bail in connection with an F.I.R. being F.I.R. being C.R. No.11202046210044 of 2021 registered with Jamnagar Panch “B” Division Police Station, Dist.Jamnagar, on executing a personal bond of Rs.10,000/( Rupees Ten Thousand Only) EACH with one local surety EACH of the like amount to the satisfaction of the learned Trial Court and subject to the conditions that they shall; (a) not take undue advantage of liberty or misuse liberty; (b) not act in a manner injurious to the interest of the prosecution; (c) surrender their passports, if any, to the lower court within a week; (d) not leave the State of Gujarat without prior permission of the concerned Trial Court; (e) mark presence before the concerned Police Station on alternate every Monday for initial six months and thereafter, on alternate Monday of every English calendar month, for a period of six months, between 10:00 a.m. and 2:00 p.m.; (f) furnish latest addresses of residence to the Investigating Officer and also to the Court at the time of execution of the bond and shall not change the residence without prior permission of the Trial Court; 8. The Authorities will release the applicants only if they are not required in connection with any other offence for the time being. If breach of any of the above conditions is committed, the concerned Trial Court will be free to issue warrant or take appropriate action in the matter. Bail bond to be executed before the Trial Court having jurisdiction to try the case. 9. It will be open for the concerned Court to delete, modify and/or relax any of the above conditions in accordance with law. At the trial, learned Trial Court shall not be influenced by the observations of preliminary nature, qua the evidence at this stage, made by this Court while enlarging the applicants on bail. RULE is made absolute accordingly. 10. Registry is directed to intimate the concerned jail authority and the concerned Sessions Court about the present order by sending a copy of this order through Fax message, email and/or any other suitable electronic mode. 11. RULE is made absolute accordingly. 10. Registry is directed to intimate the concerned jail authority and the concerned Sessions Court about the present order by sending a copy of this order through Fax message, email and/or any other suitable electronic mode. 11. Learned advocate for the applicants is also permitted to send a copy of this order to the concerned jail authority and the concerned Sessions Court through Fax message, email and/or any other suitable electronic mode.