ORDER :

(Nand Prabha Shukla, J.)

1. Heard learned counsel for the petitioners, learned counsel for the first informant and learned A.G.A. for the State.

2. The instant writ petition seeks quashing of the FIR dated 16.02.2023 giving rise to Case Crime No.56 of 2023, under Sections 3 and 4 of the Prevention of Damages to Public Property Act, 1984, Police Station-Civil Lines, District-Muzaffarnagar.

3. The main contention of learned counsel for the petitioner is that the First Information Report is malicious because the property over which constructions are alleged to be in the process of being raised is not evacuee property as it has been held that 214.84 sq. meters of plot no.835 area 0.061 and plot no.843 area 0.082 hectares is not enemy property. This order has been passed by the Assistant Custodian Enemy Property U.P. and Uttrakhanad 08.02.2019. The order dated 02.08.2019 filed as Annexure 11 to this writ petition declares only 214.84 sq. meters of plot no.835 area 0.061 and plot no.843 area 0.082 hectares to be not enemy property.

4. The First Information Report mentions these two plots, but also contains mention of Plot number 842, which is not covered by the order relied upon, and therefore the first submission of learned counsel for the petitioner is not liable to be accepted.

5. For the same reason, the submission of learned counsel for the petitioner that the FIR had been lodged, pending consideration of a review application does not improve the case of the petitioner.

6. The next submission of learned counsel for the petitioner is that raising of constructions would not bring the action within the purview of Section 3 or 4 of the Prevention of Damages to Public Property Act. In support of this submission, reliance has been placed upon the judgment in Ashok Kumar and Another Versus State of UP passed in an Application U/S 482 No. 20181 of 2021 dated 06.04.2022 and the order dated 06.08.2020 passed in Application U/S 482 No. 9964 of 2020 , Munsi Lal and Another Vs. State of U.P. and Another. The judgment in the case of Ashok Kumar (supra) relies upon the judgment in Munsi Lal (supra).

7. Both these cases cited pertain to land of Gaon Sabha and one of the reasons given for quashing the proceedings under the Prevention of Damages to Public Property Act was that Section 67 of the Revenue Code, 2006 provides a complete procedure for dealing with encroachment/unauthorized occupation of Gaon Sabha land, which is a complete code in itself. The relevant part of the judgment in Munsi Lal reads as follows:-

"The area which is covered by the P.D.P.P. Act, 1984 is, thus, confined to the destruction or damage to the 'public property' within the meaning of Section 2(b) of the Act during the course of riots or public demonstrations (commotion). The said provisions, in the considered opinion of the Court, cannot be invoked for lodging the criminal complaint or the first information report on the allegations of damage or loss caused to the Gram Sabha land by illegal encroachment against a person permanently residing in the village or a tenure holder of any land in the village in question."

8. Admittedly, the impugned FIR alleges constructions being raised over land, at least part whereof, is enemy property and under the control of the Custodian.

9. Under the circumstances, the petitioners are not entitled to any benefit under the judgments cited.

10. Besides, the judgment in the case of Munshi Lal (supra) has been considered by a Division Bench of Court in Criminal Misc. Writ Petition No. 1131 of 2021, Devnath Yadav Versus State of U.P. and 3 others, with an observation that:

"Upon a careful perusal of the Prevention of Damage to Public Property Act, 1984, we find that Section 2(a) of the Act provides that the word "mischief" occurring in the Act shall have the same meaning as in Section 425 of the Indian Penal Code, which is quoted below -

"Section 425 :Mischief : Whoever with intent to cause, or knowing that he is likely to cause, wrongf