Dismissed

Shri Nitin Yeshwant Patekar v. Mrs. Maria Luiza Quadros through Her Attorney Mr. Sebastian Joseph Quadros and Anr.

Bombay HC20 Apr 2015CRIR/1/2014

Case brief

AI extract

What is this about?

This Criminal Revision Application challenged a Sessions Judge's order setting aside a Magistrate's direction to investigate alleged illegal hill cutting. The High Court held that the Sessions Judge correctly found no breach of the Town and Country Planning Act due to a specific exemption in the respondent's permission, dismissing the revision.

What did the court decide?

The criminal revision application stands dismissed with no order as to costs.

Shri Nitin Yeshwant Patekar Vs Mrs. Maria Luiza… — Writ and Judicial Review | Bombay HC (2015)

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CRIR 1/2014

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IN THE HIGH COURT OF BOMBAY AT GOA

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CRIMINAL REVISION APPLICATION NO. 1 OF 2014

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Shri Nitin Yeshwant Patekar, son of Yeshwant Patekar, of major age, Indian National, resident of House No. 369, Oxelbag, Dhargal, Pernem-Goa. … Petitioner

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Versus

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Mrs. Maria Luiza Quadros, major, married, residing at F/F1, Delfina Apartments, Dona Paula-Goa. Represented herein through her Attorney, Mr. Sebastian Joseph Quadros, residing at F/F1, Delfina Apartments, Dona Paula-Goa.

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The Police Inspector, Pernem Police Station, Pernem-Goa. … Respondents ***

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Shri Devidas J. Pangam, Advocate for the Petitioner.

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Shri Ajit R. Kantak, Advocate for the Respondent No. 1.

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Shri Mahesh Amonkar, Additional Public Prosecutor for the Respondent No. 2.

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CRIR 1/2014

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CORAM:- C. V. BHADANG, J.

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RESERVED ON:- 19th MARCH, 2015 PRONOUNCED ON:- 20th APRIL, 2015

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JUDGMENT :

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By this revision application, the original complainant is challenging the judgment and order dated 05.09.2013, passed by the learned Additional Sessions Judge, Mapusa in Criminal Revision Application No. 101/2012. By the impugned judgment, the learned Sessions Judge has set aside the order dated 22.10.2012, passed by the learned Judicial Magistrate First Class, Pernem in Criminal Miscellaneous Application No. 112/2012, by which the learned Magistrate had directed investigation under Section 156(3) of the Code of Criminal Procedure (Cr.P.C., for short).

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The brief facts, necessary for the disposal of the revision application, may be stated thus:

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That the first respondent is the owner of land bearing survey no. 280/1-A-1 of village Dhargal, admeasuring 5000

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square metres. It appears that the first respondent had obtained a permission under Section 17-A of the Town and Country Planning Act, 1974 (Act of 1974, for short), for filling of the low lying land. That permission was granted by the Chief Town Planner on 11.03.2011, on certain conditions, for an area admeasuring 510 square metres out of survey no. 280/1-A-1. It further appears that by a Sanad dated 21.10.2009, the first respondent was granted permission for conversion of the land to non-agriculture use under the Goa, Daman and Diu Land Revenue Code, 1968 (Code, for short) and Goa, Daman and Diu, Land Revenue (Conversion of use of land and non-agricultural Assessment) Rules, 1969 (Rules of 1969, for short).

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It further appears that the petitioner along with others had filed proceedings before the Joint Mamlatdar at Pernem under Section 8-A of the Goa, Daman and Diu Agricultural Tenancy Act, 1964, (Act of 1964, for short), claiming certain reliefs and had sought injunction against dispossession, claiming to be Tenants. However, the Joint Mamlatdar, Pernem by order dated 16.02.2012 had dismissed the prayer for temporary injunction.

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CRIR 1/2014

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Be that as it may, the present dispute pertains to the allegations of illegal hill cutting by the first respondent. The petitioner had lodged a complaint with Police Station, Pernem on 09.08.2012, alleging illegal cutting of hill and excavation of earth in survey no. 280/1-A-1 by the first respondent. The matter was

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also reported to the Deputy Town Planning Officer and the Mamlatdar. According to the petitioner as, no action was taken, he reported the matter to Deputy Superintendent of Police on 11.08.2012. According to the petitioner, the illegal activities and excavation of earth carried on by the first respondent are in breach of Section 17-A of the Act of 1974 and amount to a cognizable offence under Section 17-B thereof. As the authorities failed to take appropriate action, the petitioner filed a complaint purportedly under Section 156(3) of Cr.P.C. before the learned Judicial Magistrate First Class, Pernem in which the first respondent was not made a party. The State was the sole respondent therein. A reply came to be filed on behalf of the State claiming that a preliminary inquiry was held in the matter, which revealed that the first respondent/landlord-Mrs. Maria Luiza

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Quadros had obtained permission under Section 17-A of the Act of 1974 on 11.03.2011 and the same alongwith the complaint was forwarded to the office of the Deputy Town Planner. The report of the Deputy Town Planner has said that the matter was being examined by the Department.

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It appears that on behalf of the first respondent one Sebastian Joseph Quadros being the Attorney of the owner filed an application for intervention. The learned Magistrate by an order dated 22.10.2012 although rejected the prayer for intervention, the following order was passed on the complaint:

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“The application filed by the applicants under Section 156(3) of Cr.P.C. stands allowed.

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It is therefore ordered the respondent is directed to take action with respect of the said complaint dated 09.08.2012 and investigate into the matter thoroughly and take necessary action against the persons who are involved in the commission of crime as alleged in the complaint within 24 hours on the receipt of the copy of this order and further directed to hand over the copy of

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the FIR to the applicant within 24 hours.

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The respondent is directed to file the report of the steps taken in the matter and the status of the investigation within 15 days after recording of the FIR.”

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Feeling aggrieved, the first respondent filed Criminal Revision Application No. 101/2012, before the learned Sessions Judge at Mapusa. By judgment and order dated 05.09.2013, the revision application has been allowed. Feeling aggrieved, the original complainant, is before this Court

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I have heard Shri Pangam, learned Counsel for the petitioner and Shri Kantak, learned Counsel for the first respondent. I have also heard Shri Amonkar, learned Additional Public Prosecutor for the second respondent-State.

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It is submitted on behalf of the petitioner that the learned Sessions Judge, was in error, in interfering with the order passed by the learned Magistrate. It is submitted that the learned Magistrate, on consideration of the material on record and the

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CRIR 1/2014

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relevant provisions governing the field had rightly come to the conclusion that the first respondent had no authority to intervene in as much as the matter was between the petitioner and the State. It is submitted that the learned Magistrate on consideration of the reply filed by the State had rightly directed investigation into the matter and in the absence of any error or perversity the learned Sessions Judge could not have interfered with the same.

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The learned Counsel was at pains to point out that the permission dated 11.03.2011 is only for filling up of low lying land and not for hill cutting. It is submitted that Section 17-A of the Act of 1974 makes a distinction between the activity of cutting of any hilly or sloppy land and filling up of any low lying land. It is submitted that in the absence of any permission of any hill cutting, a clear case of commission of cognizable offence under Section 17B of the Act of 1974 has been made out. He therefore, submitted that the revision application may be allowed.

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On the contrary, it is submitted on behalf of the first respondent that the first respondent being an affected party, was

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required to be heard. Thus, the learned Magistrate ought to have allowed the intervention. It is submitted that the learned Sessions Judge has found that there is no prohibition in law from hearing a party. He therefore submitted that the learned Sessions Judge was justified in holding that the intervention was required to be allowed. It is further submitted that the learned Magistrate has lost sight of relevant terms and conditions of the permission dated 11.03.2011 and in particular condition no. 9 thereof, which says that cutting of hill upto 75 metres, form the center line of road did not attract the provisions of Section 17A of the Act of 1974. He therefore submitted that there was a patent error committed by the learned Magistrate. Thus, the learned Sessions Judge was justified in correcting the same.

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I have considered the rival circumstances and the submissions made. The only question which arises for my determination is as to whether the impugned judgment and order passed by the learned Sessions Judge needs interference in the exercise of the revisional jurisdiction of this Court and whether the order passed by the learned Magistrate is required to be re-stored.

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My answer is in the negative for the following reasons.

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It is not in dispute that the first respondent has been granted a permission under Section 17-A of the Act of 1974 on certain conditions for filling of up the land in property bearing survey no. 280/1-A-1. The condition no. 9 specifically stipulates that for cutting of the hill upto 75 metres from the centre line of the road, the provisions of Section 17-A are not attracted. Although the learned Counsel for the petitioner made an attempt to show that such hill cutting was beyond the said permissible limit, there is nothing on record at this stage, to show that there is such hill cutting, beyond the permissible limit in terms of condition no. 9.

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A perusal of the order passed by the learned Magistrate would show that this aspect has not been considered while holding that a case of commission of a cognizable offence is made out. The perusal of the judgment and order of the learned Sessions Judge would show that on consideration of Sections 17-A and 17-B of the Act of 1974 and condition no. 9 of the permission dated

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11.03.2011, it was found that the commission of the cognizable offence was not disclosed. In that view of the matter, the learned Sessions Judge proceeded to set aside the order passed by the learned Magistrate. In so far as the issue of intervention is concerned, the learned Sessions Judge has found that there was no bar in law for hearing such party while passing an order under Section 156(3) of Cr.P.C. Furthermore, it appears that before the learned Sessions Judge, an application was filed at Exhibit 4/D, for permission for leave to file revision application, which was granted. In either case, once it has been found that the learned Magistrate had not noticed the material condition of the permission, was not noticed, no exception can be taken to the judgment and order passed by the learned Sessions Judge, in interfering with the said order.

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In the result, I find that there is no merit in the present revision application. Accordingly, the same stands dismissed, with no order as to costs.

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It is made clear that this will not preclude the

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competent authority under the Act of 1974 from taking action, if it is found that there is any breach of the permission dated

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11.03.2011, granted under Section 17-A of the Act of 1974.

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C. V. BHADANG, J.

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Shri Nitin Yeshwant Patekar v. Mrs. Maria Luiza Quadros through Her Attorney Mr. Sebastian Joseph Quadros and Anr.

Case brief

What is this about?

What did the court decide?

Shri Nitin Yeshwant Patekar v. Mrs. Maria Luiza Quadros through Her Attorney Mr. Sebastian Joseph Quadros and Anr.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

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