Criminal Misc. No. M-14106 of 2009 [1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of decision: 17.8.2009 (1) Criminal Misc. No. M- 14106 of 2009 (O&M) Raj Paul .. Petitioner v. State of Union Territory, Chandigarh .. Respondent (1) Criminal Misc. No. M- 17380 of 2009 (O&M) Raj Kumar Setia .. Petitioner v. Union Territory, Chandigarh .. Respondent CORAM: HON'BLE MR. JUSTICE RAJESH BINDAL Present: Mr. A. K. Khunger, Advocate for petitioner- Raj Paul. Mr. Vaibhav Narang, Advocate for petitioner- Raj Kumar Setia. Mr. P. K. Khindria, Advocate for Union Territory, Chandigarh. Mr. B. S. Walia, Advocate for the complainant. ... Rajesh Bindal J. This order will dispose of the above mentioned two petitions, as the same arise out of one FIR. The facts have been extracted from Crl. Misc. No. M-14106 of 2009. The case in hand is yet another example of land mafia operating at Chandigarh, who are in to grab the property of absentee landlord in a planned manner. Earlier also, in a similar attempt to sell the property of one NRI, pre- arrest bail application filed by P. S. Kapoor was dismissed on 6.8.2009. The modus operandi seems to be similar, where firstly the application is filed with the Estate Office under the Right to Information Act, 2005 (for short, `the Act') or otherwise to get copies of all the documents pertaining to the property. Thereafter, the process to get `No Objection Certificate' issued and transfer the same to some one else starts. Criminal Misc. No. M-14106 of 2009 [2] Petitioner- Raj Paul in Criminal Misc. No. M-14106 of 2009 is the person, who claims to be the owner of the property, whereas petitioner- Raj Kumar Setia in Criminal Misc. No. M-17380 of 2009 is the person, who had signed the agreement to sell executed by Raj Paul claiming himself to be the owner of the property in favour of Nirmal Kumar as an attesting witness. When the case came up for hearing for the first time, after recording the following contentions of counsel for the petitioner, notice of motion was issued to Standing Counsel for Union Territory, Chandigarh and interim stay of arrest was also granted: “ Learned counsel for the petitioner inter alia contends that the petitioner is the original owner and allottee of House No. 3099, Sector 37-D, Chandigarh and his father's name is Bishan Das. The petitioner entered into an agreement of sale dated 15.10.2008 (Annexure P2) with Nirmal Kumar-complainant. It is submitted that the complainant is a property dealer and in view of recession in the market, he is not agreeing to execute the sale deed and buy the property. Therefore, to wriggle out of the agreement (Annexure P2), the complainant has manipulated the record of the Estate Office in which father's name of the petitioner is now shown as Tirath Ram, whereas the father's name of the petitioner is Bishan Dass. Learned counsel has made a reference to the letter (Annexure P3) issued by the Estate Office, U. T., Chandigarh Administration, regarding payment of Government dues in respect of House No. 3099, Sector 37-D, Chandigarh in which the father's name of the petitioner is correctly recorded as Bishan Das. Therefore, it is submitted that the stand that the petitioner's father's name is not correctly mentioned is false.” Learned counsel for the petitioner today also reiterated the same submissions in the Court. However, on a pointed query by the court as to whether the petitioner has any proof of residence at Chandigarh or he being in service with Sudesh Industries, 13 Industrial Area, Chandigarh in the year 1972, the answer was simply `No'. Learned counsel for the respondents submitted that Crl. Misc. No. M-14534 of 2009 filed by Rakesh Kumar, another attesting witness to the agreement to sell executed by Raj Paul, was dismissed by this Court on 28.5.2009, which clearly deals in detail the contentions raised by learned counsel for the petitioners here. Considering the fact that Raj Paul is the direct beneficiary in the entire deal and the offence committed by him being more serious and Raj Kumar Criminal Misc. No. M-14106 of 2009 [3] Setia, being in similar position was the other attesting witness, namely, Rakesh Kumar, both of them do not deserve the concession of pre-arrest bail, considering the seriousness of allegations. Heard learned counsel for the parties and perused the record. At the very out-set, it would be appropriate to notice the observations made by this Court on 28.5.2009 while rejecting the bail application filed by Rakesh Kumar, where it was specifically noticed by this Court that interim order in Crl. Misc. No. M-14106 of 2009, i.e., the petition filed by Raj Paul was obtained by mis-representation. The relevant part thereof is extracted below: “After giving my thoughtful consideration to the entire matter, it may be noticed that in order to unearth the actual and real conspiracy which led to the representation by Raj Paul son of Bishan Dass as Raj Paul son of Tirath Ram the matter would be required to be gone into. For the said purpose, it is be kept in view that in case of pre- arrest bail, the advantage of having custodial interrogation is qualitatively more elicitation oriented than questioning a suspect who is encouraged with an order of pre-arrest bail. Besides, power to grant pre-arrest bail is somewhat extraordinary in character. It may also be noticed that earlier order dated 21.5.2009 passed in Crl. Misc. No. M-14106 of 2009 it appears was obtained by misrepresentation. However, that aspect would be required to be considered at the time of hearing the said petition which is listed for hearing on 28.7.2009.” After counsel for the parties in the present case were heard on 12.8.2009, learned counsel for Union Territory, Chandigarh sought time to produce the file of the Estate Office. Today, the same was produced in Court. A perusal of the file shows that in the application for allotment of residential site on leasehold basis filed by Raj Paul son of Tirath Ram on 13.1.1972, it was clearly mentioned that he was son of Tirath Ram and was working as Supervisor with Sudesh Industries, 13 – Industrial Area, Chandigarh. The application was filled by Raj Paul in his own hand and also signed. The same was accompanied by an affidavit duly attested by the Oath Commissioner. Even the lease deed executed for the plot in question, the name of the allotteee was clearly mentioned as Raj Paul Sachdeva son of Tirath Ram. In subsequent correspondence, he was shown to be resident of House No. 21-D, Sector 30, Chandigarh and at House No. 3304, Sector 32-D, Chandigarh. The last letter written by Raj Paul to the Estate Office is dated 23.1.1988 requesting for payment of ground rent. Copies of receipts for Criminal Misc. No. M-14106 of 2009 [4] payment of ground rent are also on record and the last one is dated 31.7.1992. In the noting portion, there is no noting after 9.2.1988. Thereafter, the noting started on 28.5.2008. The same was on account of a request dated 26.5.2008 made on behalf of Raj Paul for issuance of “No Dues Certificate”. On 27.7.2009, application was filed by Raj Paul Sachdeva requesting for photo copies of all the documents with map regarding House No. 3099, Sector 37-D, Chandigarh. The applicant therein was mentioned as “Raj Paul son of Tirath Ram, resident of House No. 3099, Sector 37-D, Chandigarh. The file lying in the archieves for more than two decades was immediately dug out and dealt with at a fast speed. The intimation was sent by the Estate Office on 31.7.2009 regarding the amount due against the plot in question. As to how this communication was sent to Raj Paul, who claimed himself to be the resident of House No. 3469, First Floor, Sector 37-D, Chandigarh is not evident on record. Immediately thereafter, another application was filed regarding issue of “No Dues Certificate”. Along with it, a demand draft of Rs. 500/- was enclosed towards payment of pending ground rent. There is another application on record, which is for supply of certified copy of allotment of the house in question, which was received in the office on 29.9.2008 and the same was accompanied by an attested affidavit of Raj Paul son of Bishan Dass. Copy of DDR No. 42 dated 12.9.2008 regarding loss of various documents was also annexed. The same was followed by another letter dated 30.9.2008 for issuance of “No Dues Certificate”, mentioning the name of the applicant as Raj Paul son of Bishan Dass, resident of Abohar. Though on earlier occasion, a similar letter of request written by Raj Paul son of Bishan Dass on 26.5.2008 had been replied to on 31.7.2008 intimating the amount due as on 26.5.2008 as Rs. 1,845/-, but still a fresh request was made which was again replied to by addressing the same to Raj Paul son of Bishan Dass at his Abohar address. Again a letter dated nil is on record intimating the Estate Office that all future correspondence be made to Raj Paul Sachdeva son of Bishan Dass, House No. 1031, Sector 44B, Chandigarh. Subsequent to this also, there is correspondence on record by Raj Paul son of Bishan Dass with the Estate Office. The important one is letter dated nil, accompanied by an affidavit dated 30.1.2009, to the Estate Office praying for correction of name of father of Raj Paul as Bishan Dass from Tirath Ram as was already recorded. Another important document on record is memo No. 5481 dated 24.2.2009 from Central Public Information Officer (G-V), Estate Office, U. T., Chandigarh to Raj Paul, House No. 3099, Sector 37-D, Chandigarh intimating that Nirmal Kumar, resident of House No. 1031, Sector 44-B, Chandigarh has Criminal Misc. No. M-14106 of 2009 [5] requested for supply of information/documents in respect of site No. 3099, Sector 37-D, Chandigarh under the Act. The communication was to have objections to the supply of documents from the allottee. The letter, which was sent to Raj Paul son of Tirath Ram, House No. 3099, Sector 37-D, Chandigarh by speed post, was returned undelivered with the report “no such person”. The envelope is on record on the file. There is nothing on the file showing as to how the application filed by Raj Paul for supply of documents under the Act on 27.7.2009, which was received in the office on 28.7.2009, was dealt with. The aforesaid facts clearly establish that the process in which the property was sought to be transferred or father's name of Raj Paul was sought to be corrected was not free from suspicion, but still the matter was not taken up seriously by the Estate Office and it continued their correspondence with Raj Paul son of Bishan Dass to prove his parentage. A perusal of the contents of the FIR registered on the complaint of Nirmal Kumar, with whom Raj Paul son of Bishan Dass, had entered into an agreement to sell the plot in question shows that house bearing No. 3099, Sector 37-D, Chandigarh was lying abandoned and a Washerman was staying there since long. The manner in which the investigation of the case is being conducted is evident from the fact that Raj Paul approached this Court on 21.5.2009, on which date while issuing notice of motion to Union Territory, Chandigarh stay of arrest was granted. Rakesh Kumar, one of the attesting witnesses, had approached immediately thereafter on 28.5.2009, on which date counsel for the complainant appeared and brought true facts to the notice of the Court and this Court, while observing that Raj Paul had obtained interim stay of his arrest by misrepresenting the facts, dismissed the bail application of Rakesh Kumar. Raj Kumar Setia's bail application was considered on 8.7.2009, when while issuing notice of motion stay of arrest was granted. Even in spite of the fact that the bail application of another attesting witness had already been rejected by this Court on 28.5.2009, the Investigating Officer did not even summon either Raj Paul or Raj Kumar Setia, the present petitioners, by issuing any notice. All what was referred to was a noting that Raj Kumar Setia was summoned by a telephonic message. A copy of the notice dated 28.7.2009 addressed to Raj Kumar Setia is also on record, which was served upon Raj Kumar Setia for appearance on 31.7.2009. On that date, he was permitted to join investigation. His bail bonds were accepted, but no investigation was made regarding his role in the entire episode. The main accused, namely, Raj Paul son of Bishan Dass was never ever called for joining Criminal Misc. No. M-14106 of 2009 [6] investigation after his arrest was stayed on 21.5.2009 till date. Not only this, no investigation worth the name was made from the Estate Office regarding the manner in which the plot was sought to be transferred and also as to whether Raj Paul, the petitioner, had any record to show that he was ever employed with Sudesh Industries, 13 Industrial Area, Chandigarh or was a resident of various houses, addresses of which were available on record. Considering the aforesaid facts and also that the anticipatory bail application filed by one of the attesting witnesses to the agreement to sell was dismissed by this Court on 28.5.2009, I do not find any reason to grant pre-arrest bail to the petitioners. It is a fit case where custodial interrogation of the petitioners or even any other person found to be involved in the offence is required to unearth the scandal and also to crack the modus operandi of the property mafia. Considering the seriousness of the allegations and the laxity at which the matter has been investigated till date, Senior Superintendent of Police, Chandigarh is directed to entrust the same to a senior officer. For the reasons mentioned above, the petitions are dismissed. (Rajesh Bindal) Judge 17.8.2009 mk