1. The present Special Criminal Application under Articles 226 and 227 of the Constitution of India has been preferred by the petitioner for the following reliefs;
“(B) Your Lordships may be pleased to issue a writ or in the nature of mandamus or in the nature of certiorari or any other writ, order or direction quashing the proceedings registered as Case No. 10/2009 before the In charge Executive Magistrate, Surat;
(C) Your Lordships may be pleased to issue a writ or in the nature of mandamus or in the nature of certiorari or any other writ, order or direction declaring that the learned Executive Magistrate has no jurisdiction to undertake any proceedings in Case No. 10/2009 in respect of the plots No. 194 & 195 situated in SEZ, Surat;
(D) Your Lordships may be pleased to pass appropriate order directing the higher authorities to inquire into the allegations leveled in the petition against the respondents nos. 3 and 4 and to submit the report for perusal before this Hon'ble Court and to pass further appropriate orders as deemed fit in the interest of justice.
(E) Pending hearing and final disposal of present petition, Your Lordship may be pleased to stay the operation, execution and implementation of the impugned ex-parte order dated 03/09/2009 (Annexure – A) and to stay further proceedings in the matter of Case No. 10/2009 pending in the Court of learned In charge Executive Magistrate, Surat.
2. Shri S.V. Raju, learned Senior advocate has appeared with Shri Abhishek Mehta, learned advocate appearing on behalf of the petitioner, Shri Hardik Dave, learned advocate has appeared on behalf of respondent no. 2-original applicant, who is the main contesting party and Shri L.B. Dabhi, learned APP has appeared on behalf of the respondent-State.
3. During the course of the submissions made by the learned advocates appearing on behalf of the respective parties and considering the impugned order passed by the learned In charge Executive Magistrate, Surat dated 03/08/2009 in MAG/CRPC/145; Case No. 10/2009, this Court suggested that let the respective parties appear before the learned Magistrate and all the defenses, inclusive of the question with respect to maintainability of the proceedings under Section 145 of the Code of Criminal Procedure, in view of pendency of the proceedings before this Court, be raised before the concerned Magistrate and the concerned Magistrate to consider the same in accordance with lawn and on its own merits and in the meantime, both parties to maintain status- quo as on today with respect to possession and the impugned ex-parte order be quashed and set aside except the second and third paragraph of the operative portion of the impugned order. The learned advocates appearing on behalf of the respective parties have agreed to the same, however, have requested to make suitable observation that this Court has not expressed any opinion on merits in favour of either parties and all the contentions/defenses, which might be available to the respective parties, inclusive of which are stated hereinabove, be kept open, which be considered by the concerned Magistrate in accordance with law and on its own merits.
4. In view of the above broad consensus between the learned advocates appearing on behalf of the respective parties, the impugned order passed by the learned In charge Executive Magistrate, Surat dated 03/08/2009 in MAG/CRPC/145; Case No. 10/2009 is hereby quashed and set aside except second and third paragraph of the operative portion of the impugned order and both the parties are directed to maintain status-quo with respect to possession as on today. However, the same shall be without prejudice to the rights and contentions of the respective parties in the said proceedings and the learned Executive Magistrate to decide and dispose of the said proceedings in accordance with law and on its own merits and without, in any way, being influenced by the present arrangement of directing the parties to maintain status-quo as on today. It is also observed that all the defenses, which might be available to the petitioner, are kept open, inclusive of the question of jurisdiction and/or maintainability of the present proceedings under Section 145 of the Code of Criminal Procedure, in view of pendency of the proceedings, before this Court and/or any other defenses, which might be available to them under the law as well as all the contentions, which might be available to respondent no. 2- original applicant are also kept open, which may be raised and agitated before the learned Executive Magistrate and the learned Executive Magistrate is directed to consider the same in accordance with law and on its own merits. In the facts and circumstances of the case, the learned Executive Magistrate is directed to decide and dispose of said proceedings in accordance with law and on its own merits as stated hereinabove at the earliest but not later than four months from the date of receipt of the present order. Parties to complete the pleadings within a period of two months from today.
5. With this, the present petition is disposed of.
CIVIL APPLICATION No. 10887/2009 In view of disposal of Special Criminal Application No.
1680/2009, no order in the Civil Application.
(M.R. SHAH, J.)
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