1 S.B. Cr. Misc. Pettion No.621/2004 Uttam Chand Vs State of Rajastan DATE OF ORDER : - 29.1.2008 HON'BLE MR. PRAKASH TATIA, J Mr.Sandeep Mehta, for the petitioner. Mr.JPS Choudhary, Public Prosecutor. <><><> Heard Learned counsel for the petitioner and learned Public Prosecutor. The petitioner is aggrieved against the order of the trial court dated 8th April, 2004 by which the petitioner's application filed under Section 79 read with Sections 239 and 245(2) IPC was dismissed by the trial court. Brief facts are that the Police Station Kotwali Pali received a letter dated 2.2.2001 by which the Tehsildar, Pali informed that Tehsildar, Pali submitted a report on 27.1.1996 alleging therein that one Uttam Chand S/o Mohanlal resident of Pali encroached upon the land of Khasra no.1411 measuring one and half bigha and the proceedings against the said Uttam Chand S/o Mohanlal was initiated under Section 91(6) of the Rajasthan Land 2 Revenue Act. A notice was given in that proceeding to the said Uttam Chand S/o Mohanlal, which was served upon the said Uttam Chand S/o Mohanlal on 29th Dec., 1995. It is alleged that despite that notice, the said Uttam Chand S/o Mohanlal did not remove his illegal possession from the land in question. In view of the above facts, the criminal case may be registered against the said Uttam Chand S/o Mohanlal obviously under Section 447 IPC. In the investigation, the statement of Tehsildar Gangaram and Patwari Jugraj was recorded under Section 161 Cr.P.C. The site was also inspected in the presence of Patwari Jugraj. The copies of the record were obtained from the office of the Tehsil and also from the office of Patwari concerned. The copies of the record of case registered under Section 91 of the Rajasthan Land Revenue Act was also taken. During investigation, the statement of officer of the Municipal Board, Pali – Narendra Pal Sharma was also recorded and he stated that for the land in question Pattas nos. 3646 dated 12th April, 1973 and 3852 dated 29th Oct., 1974 were issued in the name of Mithalal S/o Mohanlal and these Pattas were issued for the land which is falling in the Khasra no.1411. Said Narendra Pal 3 Singh also submitted a written report stating that land was sold by Municipal Board in public auction, which was also taken on record during the investigation. The Pattas issued by Municipal Board are registered by the Sub-Registrar, Pali and copies of Pattas were also obtained from the office of the Sub-Registrar, Pali. After investigation, the concerned SHO submitted final report in the court on 10.1.2002. In the final report findings were recorded that constructing of factory over the land in question was in the knowledge of the concerned Patwari in the year 1991, however, the proceedings for eviction of the occupant was initiated under Section 91(6) of the Land Revenue Act against one Uttam Chand S/o Mohanlal and for that a report was made on 27.1.1996. The maximum punishment is of three years and, therefore, in view of the fact that incident took place in the year 1991, the criminal proceedings could have been initiated upto 1994 only whereas report has been submitted in the year 1996 after the expiry of period of limitation and as per the statement of Patwari Jugraj, the possession of Uttam Chand S/o Mohanlal was since last 20 to 25 years over the land in question that causes suspicion about the allegation that encroachment was made in the year 1991. 4 Be that as it may be, the other facts which are more relevant were that the Pattas for the land in question were issued by the Municipal Board, Pali and those Pattas are registered and its record was available in the Municipal Board, Pali itself. The contention of the petitioner is that he is not son of Mohanlal but he is son of Devi Chand and on the basis of proceedings initiated under Section 91 of the Rajasthan Land Revenue Act against Uttam Chand S/o Mohanlal criminal case under Section 91(6) of the Land Revenue Act has been filed. The order passed under Section 91(6) cannot be used for petitioner's prosecution. Further, the land in question was purchased by the firm M/s. Mithalal Mohanlal by registered sale deed dated 23rd Sept., 1970 and one sale deed dated 12th April, 1973 for 64 sq. yard of the land was executed by the State of Rajasthan through the Municipal Board, Pali in favour of M/s. Mithalal Mohanlal and further one sale deed was executed on 29th Oct., 1973 for the land measuring 115.5 sq. yards in the same manner in favour of M/s. Mithalal Mohanlal. The firm M/s. Mithalal Mohanlal dissolved and a dissolution deed was also executed as back as on 8.8.1978 and, thereafter, the 5 petitioner alone is in possession of the entire factory premises. The learned courts below observed that whether the petitioner is bonafide purchaser of the land in dispute and he has not trespassed over the land in question can be examined by taking evidence only. However, the trial court also noticed that sufficient material is available on record about the sale of the property in dispute by the Municipal Board in public auction, but since there is a report of Tehsildar prepared under Section 91(6) of the Land Revenue Act, the matter requires to be inquired into. Learned counsel for the petitioner submitted that no prosecution could have been continued on the report submitted by the Tehsildar in view of the fact that no offence is made out from the facts mentioned in the FIR. The Tehsildar himself was competent to take action under Section 91 of the Land Revenue Act and could have removed the trespasser, if it was a case of further trespass then could have initiated proceedings for sending the petitioner in imprisonment. In the investigation, sufficient material came on record which are beyond doubt and cannot be disputed in view of the fact that entire record was 6 available with an independent body i.e., Municipal Boad, Pali which proves that the property in question was sold as back as in the year 1970 and it was dealt with by registered sale deeds in the year 1973 and 1974 and an industrial unit was constructed over the land in dispute about 20 to 25 years ago as the evidence has come from the concerned Patwari himself about this construction. It is submitted that in view of the facts and evidence which as come on record, no offence is made out, still the trial court is proceeding to prosecute the petitioner. It is also submitted that from the face of record, the proceedings is barred by time. Learned Public Prosecutor submitted that the Tehsildar is the custodian of the revenue land and has statutory power to initiate proceedings to remove the encroachment made on the revenue land. The Tehsildar, therefore, is entitled to initiate proceeding under Section 91 of the Land Revenue Act as well as could have lodged FIR for punishing the trespassers under Section 447 IPC. I considered the submissions of learned counsel for the petitioner as well as learned Public Prosecutor and perused the record also. The report of the Teshildar is only to the effect that a 7 proceeding under Section 91(6) of the Land Revenue Act was initiated against one Uttam Chand S/o Mohanlal and he was served with the notice of the proceedings under Section 91(6) of the Land Revenue Act and on the basis of said proceeding only he was of the view that Government land has been encroached upon by the petitioner. In investigation when fact came on record that property in question itself which was duly identified by Narendra Pal Singh who was competent officer of the Municipal Board, Pali that the said property was sold by the Municipal Board, Pali itself in public auction and it was dealt with by another deeds of the year 1973 and 1974 which are registered documents and admittedly, there is a factory established over the land in dispute at least 20 years before the lodging of the FIR by the Tehsildar then in that situation, the trial court's observation that whether the petitioner-accused is bonafide occupant over the land in dispute can be determined only after evidence clearly demonstrates that in the matter of prosecution of a person,the trial court has not applied its mind to the material available on record for taking a decision to proceed with the prosecution and ignoring the material which was submitted before the court 8 by the concerned SHO after investigation and for which theres is no explanation available from the file of the revenue department. Further, there was no reason for the trial court to proceed in the case lodged by the Tehsildar after such inordinate delay with respect to the alleged offence under Section 447 IPC or under Section 91(6) of the Rajasthan Land Revenue Act which has limitation of three years only and particularly when there is claim of title with documentary proof. It is clear case of abuse of court proceedings because of the reason that from the evidence produced by the prosecution itself it is clear case of settled possession of the petitioner since last more than 20 to 25 years, there is evidence of title in favour of the petitioner and there is inordinate delay in launching criminal case. In view of the above reasons, the misc. petition filed by the petitioner is allowed and the prosecution of the petitioner in FR No.57/2001 in pursuance of the order of the trial court dated 8th April, 2004 is quashed and set aside. (Prakash Tatia), J. c.p.goyal/-