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CR.MA/7989/2010 3/ 3 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 7989 of 2010
=========================================================
KHEMCHAND
KUNGUMAL THARWANI - Applicant(s)
Versus
STATE
OF GUJARAT & 1 - Respondent(s)
=========================================================
Appearance
:
MR
DAKSHESH MEHTA for
Applicant(s) : 1,
MR MR MENGDEY, APP for Respondent(s) : 1,
MR
ZUBIN F BHARDA for Respondent(s) :
2,
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CORAM
:
HONOURABLE
MR.JUSTICE AKIL KURESHI
Date
: 21/10/2010
ORAL
ORDER
Rule.
Learned APP Shri Mengdey waives service of rule for respondent no.1
State. Learned advocate Shri Bharda waives service of rule for
respondent no.2.
The
petitioner is the original accused. He seeks quashing of the
complaint Annexure-A bearing Criminal complaint No.6667/2009 filed
before the learned Chief Judicial Magistrate, Navsari by respondent
no.2 herein. In the complaint, respondent no.2 has alleged
inter-alia that the petitioner has in his plot which is adjacent to
the plot of the complainant, put up construction in excess of the
permissible limit and also in excess of the building plan passed by
the Municipal authorities. It is the case of the complainant that
such construction has left no margin at all as against the
requirement of 4ft of margin. On the above basis, the complainant
has invoked Section 155 of the Gujarat Municipalities Act and
Section 427 of the IPC.
Upon
perusal of Section 155 of the Gujarat Municipalities Act, it can be
seen that only penal provision contained in Sub-section(7) which
permits the chief officer of Municipality to levy fine in case it is
found that any person is carrying out unauthorised construction or
that such activity continues in contravention of the provisions of
Section 155. Sub-section (7) further empowers the Chief Officer to
demolish such offending construction after following certain
procedure.
Ex-facie,
such power is with the Chief Officer and for which no complaint
before the Magistrate was maintainable. With respect to Section 427
of the IPC, same provides for punishment for mischief causing damage
to the amount of fifty rupees or upwards. Offence of mischief has
been defined in Section 425 in the following manner :
425.
Whoever, with intent to cause, or knowing that he is likely to
cause, wrongful loss or damage to the public or to any person,
causes the destruction of any property, or any such change in any
property or in the situation thereof as destroys or diminishes its
value or utility, or affects it injuriously commits mischief .
Upon
perusal of the complaint, it straightway becomes clear that none of
the ingredients required under Section 425 of the IPC are fulfilled.
As already noted, grievance of the complainant is that the
petitioner has carried out construction in excess of the plans
passed by the authorities as well as in excess of what rules and
regulations permit. This by itself without anything further cannot
be termed as an action of causing wrongful loss or damage to the
public or to any person or causing destruction of any property or
diminishing its value or utility. No case of mischief is therefore,
made out. Section 425 of the IPC is thus wrongly applied.
In
the result, leaving the complainant to follow his remedies in
accordance with law, criminal case being Criminal complaint
No.6667/2009 filed before the learned Chief Judicial Magistrate,
Navsari by respondent no.2 is quashed.
Petition
is disposed of. Rule made absolute accordingly.
(Akil
Kureshi,J.)
(raghu)
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