Crl. Misc. No. M-26452 of 2009 -1- IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH Crl. Misc. No. M-26452 of 2009 (O&M) Date of Decision : 10.3.2011 Gurbachan Singh .......... petitioner Versus State of Punjab ...... Respondent CORAM : HON'BLE Ms. JUSTICE RITU BAHRI Present : Mr. G.S. Nagra, Advocate for the petitioner. Mr.Vishal Munjal, Addl. A.G., Punjab. **** RITU BAHRI, J. Present petition has been filed under Section 482 Cr.P.C. for quashing of FIR No. 9 dated 26.3.2007 under Section 420 IPC and under Section 13(1)(C)(D) read with Section 13(2)88 of PC Act registered at police station Vigilance Bureau, Jalandhar (Annexure P- 4). The brief facts of the case are :- Kartar Singh @ Kartara having four brothers namely Ram Lal, Bhaggu, Gulzari and Rajja Singh, were owners in possession of land measuring 5 Kanal-5 Marlas in Khasra No. 39//7/3, Hadbast No. 246 in equal shares in village Khanwaspur, Tehsil and District Hoshiarpur. As per the revenue record and jamabandies for the year 1992-93 and 1997-98 the ownership is in favour of the abovesaid persons. Rajja Singh died in the year 1976. During his life time he Crl. Misc. No. M-26452 of 2009 -2- executed a Will in favour of his son Balvir Singh and grandson namely Jasvir Singh in respect of their share of land measuring 1 Kanal-1 Marlas out of 5 Kanal-5 Marlas. As per the Will, the revenue authorities sanctioned mutation in their favour. On 4.3.1993, 12 Marlas of land out of Khasra No. 39//7/3(5-5) was sold by Kartar @ Kartara, Gulzari @ Gulzara and Balvir Singh. On 14.10.1993, as per the registered sale deed moved an application for demarcation of the land and on 16.10.1993 the demarcation was done by the Tehsildar. Thereafter a mutation in favour of Gurbachan Singh-petitioner was sanctioned. In the jamabandi for the year 2002-03, the petitioner has been shown as owner for 0.12 Marlas of land. In the year 2005, one of the co-sharers namely Tarsem Singh s/o Ram Lal made a complaint to the Vigilance Bureau that the land measuring 5 Kanal-5Marlas in Khasra No. 39//7/3, Hadbast No. 246 in village Khawaspur, Tehsil and District Hoshiarpur was acquired by the Industries Department in the year 1962 and the petitioner, Kartara along with Gulzari have wrongly sold this land to the petitioner Gurbachan Singh. After due inquiries, the Vigilance Bureau got registered an FIR No. 9 dated 26.3.2007 under Section 420 IPC and under Section 13(1)(C)(D) read with Section 13(2) 88 of PC Act at police station Vigilance Bureau, Jalandhar. A civil suit was filed for declaration by Kartara (vendor of the petitioner) that they were owner of the land along with present petitioner Gurbachan Singh and one Rajiv Kumar regarding 5 Marlas of land bearing Khasra No. 39//7/3 situated in village Khawaspur District Hoshiarpur was co-defendant in the civil suit. In the civil suit Crl. Misc. No. M-26452 of 2009 -3- petitioner filed written statement claiming the benefit of being vendee from the plaintiffs. The Civil suit is still pending. An application was moved by the petitioner to the Director General of Police, Punjab, Chandigarh stating that he was bona fide vendee and rightly purchased 0.12 Marla of land from the vendors. The Punjab State Department of Industries and Commerce through General Manager District Industry Centre Hoshiarpur filed an application against the petitioner and others under Section 4, 5 & 7 of the Punjab Public Premises and Land (Eviction and rent Recovery) Act. This petition was dismissed by the learned Sub Divisional Magistrate-cum-Collector, Hoshiarpur vide order dated 31.7.2007. The petitioner submits that he had taken loan to the tune of Rs. 3,97,000/- for constructing the shops over the suit land but the police has registered a false case against the petitioner and others. One of the vendor Balvir Singh son of Rajja Singh filed Crl. Miscellaneous No. M-55148 of 2007 for quashing of FIR and subsequent proceedings. Finally the Vigilance Department found no incriminating material against Balvir Singh and in the final report under Section 173 Cr.P.C. he has been shown in column No. 2. In the reply filed by Harbhajan Singh Pannu, Deputy Superintendent ofo Police, Vigilance Bureau, Punjab, Hoshiarpur, it has been submitted that an application dated 30.6.2006 was submitted by Tarsem Singh to the Chief Director Vigilance Bureau, Chandigarh against Gurbahcan Singh and others, was entrusted to DSP Vigilance Bureau Hoshiarpur for inquiry. DSP Vigilance Bureau Crl. Misc. No. M-26452 of 2009 -4- Hoshiarpur got conducted the inquiry into the said application from SI Gurmeet Singh Vigilance Bureau Hoshiarpur. It was found in the inquiry that registered sale deed was executed in respect of land measuring 12 Marlas, out of land measuring 24 Acres 5 Kanals, which was acquired by the Punjab Industrial Department, Hoshiarpur. This was done in connivance with Patwari Resham Singh, Kanugo Naib Singh Tehsil Hoshiarpur and Gurbachan Singh Property Dealer. Fard jamabandi was given to Gurbachan Singh property dealer despite sending of letter No. 7530 dated 1.10.2003 to the Tehsildar Hoshiarpur and despite of note given by Lehmber Ram Patwari. Lehmber Ram Patwari was also co-accused as he did not sanction the mutation in respect of the land in question. Enquiry report was sent to SSP Vigilance Bureau Jalandhar by DSP Vigilance Bureau Hoshiarpur. SSP Vigilance Bureau Jalandhar recommended to register a case against the petitioner and other co- accused. Finally, the Chief Director Vigilance Bureau Punjab, Chandigarh directed to register the case against the petitioner and others. FIR No. 9 dated 26.3.2007 under Section 420 IPC and 13(1) (C)(D) read with Section 13(2)88 of the PC Act was registered by SSP Vigilance Bureau Jalandhar. After investigation Balbir Singh co- accused was found innocent in the abovesaid FIR. Resham Singh Patwari co-accused was abroad and P.O. proceedings was initiated against him. Challan has been prepared after completion of investigation. It has been contended that land measuring1 Kanal-1 Marlas out of 5 Kanal-5 Marla was acquired by the Punjab Industrial Crl. Misc. No. M-26452 of 2009 -5- Department, Hoshiarpur. Owners of the land were given compensation. The General Manager, District Industries Centre, Hoshiarpur filed application dated 1.10.2003 to the Tehsildar for sanctioning the mutation of disputed land in the name of State Government but the revenue authorities failed to enter the mutation. The allegation is that the mutation was not entered in connivance of the petitioner and another co-accused. Registration of FIR in the above background of the facts and subsequent proceedings are in due course of law. The land purchased by the petitioner was earlier acquired by the Punjab State through Department of Industries and Commence in the year 1962 and compensation was paid to the owners of the said land namely Karat Singh, Gulag Singh, Blair Singh. The sale deed executed by said persons in favour of the petitioner is sham transaction, as at the time of the sale deed dated 19.7.2005, the said persons were not the owners. Copy of the award dated 7.7.1962 and the receipt of amount of compensation, is part of the investigation report. In the initial affidavit of Dy. Superintendent of Police,Vigilance Bureau, Punjab, Hoshiarpur dated 8.4.2010, it has been specifically mentioned that vide letter No. 7530 dated 1.10.2003, the Industries Department had requested the Revenue Authorities to enter the mutation in favour of the Industries Department. Petitioner Gurbachan Singh property dealer despite knowing the details of letter dated 1.10.2003 addressed to Tehsildar Hoshiarpur, got the mutation of the property illegally in the name of Gulzar Singh son of Sh. Ralla Singh, Balbir Singh son of Raja Singh, Kartar Singh son of Ralla Singh. The petitioner in connivance with Crl. Misc. No. M-26452 of 2009 -6- co-accused namely Reshan Singh Patwari and Lehmber Singh Patwari, who were public servants caused loss to the State / Industrial Department of Punjab State and got the sale deed executed. The petitioner at present has raised construction of the shops on the said land and has sold two shops from the said property. Therefore, has played fraud upon the Punjab Industrial Department. He has committed an offence under Section 420 IPC in connivance with the co-accused. The petitioner has referred to Annexure P-11, which is the copy of the written statement filed by the General Manager, District Industries Centre, Hoshiarpur in the suit for declaration filed by Kartar Singh, Balvir Singh and Gurmeet Kaur. The State has taken a specific stand in the written statement that vide notification dated 10.1.1962 a mutation had been sanctioned in favour of the Government / Industrial Department and possession of the disputed land was taken under Section 16 of the Land Acquisition Act. After the award was passed. Copy of the notification is attached as Annexure D-1. Civil suit is still pending for final adjudication. Heard learned counsel for the parties. Mr. G.S. Nagra, learned counsel for the petitioner has sought quashing of FIR on the ground that they are the bona fide purchasers of the land in dispute in the jamabandi for the year 2002- 2003, the petitioner has been shown the owner of 0.12 Marla land. The demarcation of the land as per the registered sale deed was done by the Tehsildar and thereafter a mutation in favour of Gurbachan Singh was sanctioned. An application under Section 4, 5, Crl. Misc. No. M-26452 of 2009 -7- 7 of the Punjab Public Premises and Land (Eviction and Rent Recovery) Act has been through its General Manager, District Industries Centre, Hoshiarpur, which was dismissed by the learned Sub Divisional Magistrate-cum-Collector, Hoshiarpur vide order dated 31.7.2007. Thereafter the petitioner had taken loan of Rs. 3,97,500/- for constructing the shops over the suit land and this false case has been registered against the petitioner and others. One of the accused Balvir Singh, who had sold 6 Marlas of land on 4.3.1993, was facing proceedings in FIR, on the ground that the land in question was acquired in the year 1962 by the Industries Department. A specific stand had been taken by the State of Punjab vide Annexure P-9 that, there was, during investigation, no incriminating evidence had appeared against accused Balvir Singh. No challan and charge-sheet was prepared against Balvir Singh. By this Court vide order dated 28.8.2008, the petition filed by Balvir Singh was disposed of as having become infructuous. After going through the entire record of the case referred, reference is made to order dated 31.7.2007 Annexure P-8. In this Punjab State Department of Industries had filed an application under Section 4, 5, 7 of the Punjab Public Premises and Land (Eviction and Rent Recovery) Act through its General Manager, District Industries Centre, Hoshiarpur, against the petitioner. It was alleged in the petition that Punjab Government, Department of Industries had acquired land 24 Acre 5 Kanal for setting up Industries Development Colony in village (Khawaspur) Piplanwala, Tehsil and District Hoshiarpur vide notification No. 181/11-B/1-62-796 dated 10.1.1962, Crl. Misc. No. M-26452 of 2009 -8- mutation of this land was sanctioned in favour of the Department on 5.4.1963 and thereafter shops, Industrial Mills and development of Industrial Colony by carving plots was done. It has been alleged that some land was left vacant for Green Park, which is part of Khasra No. 39//7/3 measuring 5 Kanal 5 Marlas. According to the revenue record, mutation of the acquired land was sanctioned and was incorporated in the jamabandi for the year 1972-73. After demarcation of the spot, respondents have been found to have made encroachment on 1Kanal of land out of Khasra No. 39//7/3. After encroachment, a shop has been constructed on 6 Marlas of land and the remaining land is lying vacant. Respondents have further sold this land. The respondents opposed the petition for their eviction on the ground that the property in question is not public premises, that the petition has not been filed through duly authorized person and that the State Government never took possession of the disputed land. The respondents and their predecessor in interest have been in possession of the land as owner. The original owner Raja Singh died and mutation of his inheritance was sanctioned in favour of Balvir Singh, grandson Jasbir Singh and Gulzar Singh son of Ralla who died in the year 1995. The abovesaid persons had sold 12 Marlas of land in favour of Gurbachan Singh, who got the site plan for constructing shops on the purchased land sanctioned from the Municipal Committee, Hoshiarpur and raised construction. Gurbachan Singh further sold the shops through registered sale deed but the Government never raised any objection. Crl. Misc. No. M-26452 of 2009 -9- After going through the record, the Sub Divisional Magistrate-cum- Collector, Hoshiarpur has held that in response to letters dated 1.10.2003 and 6.11.2006, the department of Industries, informed that at this stage no furd buder can be ordered and the petitioner can move the Civil Court for correction of Revenue Record. From the order, it is clear that respondents are entered as owners in the revenue record. Since no civil suit has been filed by the Department of Industries for getting the revenue record corrected the disputed land can not be held to be public premises. The petition filed by the Punjab State Department of Industries was dismissed. This factual position has not been disputed by the State till date in its reply. In view of the above undisputed fact, that no mutation has been sanctioned in favour of the Industries Department, as claimed that they are owner in possession as per the acquisition conducted in the year 1962. This criminal miscellaneous is allowed. FIR No. 9 dated 26.3.2007 under Section 420 IPC and under Section 13(1)(C)(D) read with Section 13(2)88 of PC Act registered at police station Vigilance Bureau, Jalandhar (Annexure P-4) is quashed with all consequential proceedings. 10.3.2011 (RITU BAHRI) 'sp' JUDGE