Gujarat High CourtHiralal Chhaganlal Patel & vs State Of Gujarat & 5 on 7 January, 2016Author:J.B.PardiwalaBench:J.B.PardiwalaR/SCR.A/6986/2015                                                     ORDER




                      IN THE HIGH COURT OF GUJARAT AT AHMEDABAD


              SPECIAL CRIMINAL APPLICATION (DIRECTION) NO. 6986 of 2015

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                       HIRALAL CHHAGANLAL PATEL & 1....Applicant(s)
                                        Versus
                          STATE OF GUJARAT & 5....Respondent(s)
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         Appearance:
         MR ASIM J PANDYA, ADVOCATE for the Applicant(s) No. 1-2
         MR.MANAN V BHATT, ADVOCATE for the Applicant(s) No. 1-2
         PUBLIC PROSECUTOR for the RESPONDENT(s) No. 1
         MR HS MUNSHAW, ADVOCATE for the Respondent(s) No. 2
         MR CHINMAY M GANDHI, ADVOCATE for the Respondent(s) No. 5
         MR MB GANDHI, ADVOCATE for the Respondent(s) No. 5
         MR. KULDEEP D VAIDYA, ADVOCATE for the Respondent(s) No. 6
         MR HRIDAY BUCH, ADVOCATE for the Respondent(s) No. 6
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                   CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA

                                       Date : 07/01/2016


                                        ORAL ORDER1.     By     this   writ   application underArticle                  226of the
         Constitution of India, the applicants have prayed for the
         following reliefs;"(A) this Honourable Court may be pleased to declare
                the action of the respondents, their servant and agents
                of closing the entry of the property in question by
                constructing a brick wall as also the additional
                construction put up by them on the existing property
                being without jurisdiction, authority of law and violative
                of the fundamental rights of the petitioners underArticles
                14, 19, 21and300A of the Constitution of India.(B)     This Honourable Court may be pleased to issuePage 1 of 4HC-NIC                                   Page 1 of 4     Created On Fri Jan 08 01:59:57 IST 2016
               R/SCR.A/6986/2015                                               ORDERappropriate writ, order and/or direction quashing and
              setting aside the orders dated 23/09/2015, 13/10/2015
              (Annexure-A), 28/12/2006 (Annexure-B) and 18/09/2015,
              30/09/2015 (Annexure-G) being without jurisdiction,
              illegal and unconstitutional and violative of fundamental
              rights of the Petitioners in the interest of the justice.(C ) This Honourable Court may be pleased to issue
              appropriate writ, order or direction to the respondents,
              their servants, and agents to restore the status quo ante
              by removing the offending construction in the entry gate-
              door and other part of the property in question.(D) This Hon'ble Court may be pleased to direct
              respondent No.4 to register FIR for the offences underSection 378,425and441of IPC against respondent No.2
              and all other persons, officers and employees concerned
              with the commission of the aforesaid offences.(E) This Honourable Court may be pleased to direct the
              respondent No.2 and respondent No.4 to pay appropriate
              compensation to the petitioners under the public law
              remedy.(F) Pending admission and final disposal of the present
              petition the respondents, their servants, the agents and
              employees and/or any other person be restrained from
              interfering with the rights of the petitioner to issue the
              entry gate-door of the property in question which is
              situated on the TP Road side opposite to Shastrinagar
              Society and the status quo ante may kindly be restored.(G) Pending admission and final disposal of the present
              petition the execution, operation and implementation of
              the order dated 28/12/2006 (Annexure-B) may kindly be
              stayed.(H) Ad interim relief in terms of clauses (F) and (G) may
              kindly be granted."2.   It appears from the materials on record that the
         applicants herein are having an Industrial Shed bearing Plot
         No.48-B, situated at Vitthalvadi, GIDC, Bhavnagar. It appears
         that this particular shed was purchased by the applicantsPage 2 of 4HC-NIC                            Page 2 of 4     Created On Fri Jan 08 01:59:57 IST 2016
               R/SCR.A/6986/2015                                                      ORDER


         sometime in the year 2001. The dispute relates to right of
         access from a particular side in the Industrial Shed. In 2006,
         some proceedings were initiated by the local residents of the
         area before the Sub-Divisional Magistrate undersection 133of
         the Code of Criminal Procedure, 1973 on the premise that the
         applicants herein had unauthorizedly put up a gate which they
         were otherwise not entitled to in law. The grievance of the
         applicants is that relying on the order passed by the Sub-
         Divisional Magistrate, way back in the year 2006, the
         authorities of the Corporation, i.e., the Bhavnagar Municipal
         Corporation very highhandedly removed the gate and covered
         the open space with a wall. It appears that this dispute is going
         on past couple of years. I am told that a civil suit was also filed
         by   the   applicants    challenging        a      notice        issued         by        the
         Corporation undersection 260of the Bombay Municipal
         Corporation Act. The said suit was, ultimately, dismissed for
         non-prosecution.3.   I have heard the learned counsel appearing for the
         parties at length. I have also considered the materials on
         record. I may clarify one thing that Mr. Pandya, the learned
         counsel appearing for the applicants, made himself very clear
         that the legality and validity of the order passed by the Sub-
         Divisional Magistrate, way back in the year 2006 in purported
         exercise of his power undersection 133of the Code of Criminal
         Procedure, is not in challenge. He wants this Court to
         adjudicate whether his clients have a right to put up a gate at
         a particular place of their Industrial Shed. He wants this Court
         to adjudicate whether the action on the part of the authorities
         to remove the gate and cover the open space with a brick wall,
         is in accordance with law or not.Page 3 of 4HC-NIC                               Page 3 of 4         Created On Fri Jan 08 01:59:57 IST 2016
                  R/SCR.A/6986/2015                                               ORDER4.      I am of the view that there are many disputed questions
         of fact involved in this petition, and it is not possible or rather
         permissible for this Court to adjudicate the issues raised in this
         petition in exercise of criminal jurisdiction underArticle 226of
         the Constitution of India. The applicants may avail of any other
         legal remedy available in law before the appropriate forum in
         accordance with law. I may also clarify that if the applicants
         are of the view that the so called alleged action on the part of
         the authorities amounts to an offence, it is always open for the
         applicants to take appropriate steps in that regard.5.      This application is, accordingly, disposed of with a
         clarification that it will be open for the applicants to avail of
         appropriate legal remedy before the appropriate forum in
         accordance with law. I may clarify that when I say that there
         are disputed questions of fact, then it is difficult for me to go
         into the issues raised in exercise of my criminal jurisdiction.(J.B.PARDIWALA, J.)




         VahidPage 4 of 4HC-NIC                               Page 4 of 4     Created On Fri Jan 08 01:59:57 IST 2016