Himachal Pradesh High Court
Hans Raj vs Of on 16 November, 2015
Author: Sureshwar Thakur
Bench: Sureshwar Thakur
1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.MMO No. 162 of 2015.
Reserved on: 13.10.2015.
.
Date of Decision : 16th November, 2015.
Hans Raj .....Petitioner.
Versus
of
State of H.P. and another .....Respondents.
Coram
rt
The Hon'ble Mr. Justice Sureshwar Thakur, Judge.
Whether approved for reporting? Yes.
For the Petitioners: Mr. Ajay, Sharma, Advocate.
For the Respondents: Mr. Vivek Singh Attri, Dy. A.G. ______________________________________________ Sureshwar Thakur, Judge The petitioner herein through the instant petition has sought quashing of FIR No. 13 of 6.09.2012 registered at Police Station, Anti Corruption Bureau, Solan, District Solan, Himachal Pradesh, wherein he along with other co-accused, is alleged to have committed offences punishable under Sections ::: Downloaded on - 15/04/2017 19:20:49 :::HCHP 2 420 and 120-B of the Indian Penal Code and Section 13(2) of the Prevention of Corruption Act, 1988.
2. The allegations constituted in the F.I.R aforesaid .
lodged against the petitioner herein besides against the others, named therein as co-accused are of the petitioner herein having entered false Rapat No.8 on 04.09.2008 in the of Roznamcha of Patwar Circle Bhud, Tehsil Nalagarh,District Solan, Himachal Pradesh at the instance of Shri Layak Ram son rt of Shri Banta Ram portraying therein the factum of his having exchanged his land measuring 6 bighas comprised in Khata Khatoni NO. 40/41 situated at Village Koli Majra with S/Shri Karam Chand, Joginder Singh and Layak Ram all sons of Shri Ram Kishan at village Makhnumajra under Patwar Circle, Thana. The petitioner herein having purportedly recorded false rapat No.8 sequelled attestation of mutation bearing No.350 by Shri Bagga Ram, Tehsildar, Nalagarh on the recommendation of Shri Dharam Pal, Kanungo. Both, Shri Bagga Ram, Tehsildar, Nalagarh and Shri Dharam Pal, Kunungo stand named as co-
accused alongwith the petitioner herein. The falsity ingraining rapat No.8 entered by the petitioner herein in the Rojnamcha of ::: Downloaded on - 15/04/2017 19:20:49 :::HCHP 3 Patwar Circle Bhud, Tehsil Nalagarh, District Solan, H.P. at the instance of Shri Layak Ram son of Shri Banta Ram portraying therein the factum of the latter having exchanged six bighas of .
land comrpised in khata khatoni No.40/41 situated at village Koli Majra with S/Shri Karam Chand, Joginder Singh and Layak Ram all sons of Shri Ram Kishan resident of Village of Makhnumajra, purportedly sprouts from the factum of no compatible entries qua exchange of land having been recorded rt in the apposite record of Patwar Circle Thana wherein village Makhanumajra falls. Necessarily, when entries in the apposite rojnamacha of the Patwar Circle concerned by the Patwari concerned manifesting the factum of exchange as displayed in rapat No.8 recorded in the rojnamcha of patwar circle Bhud having factually occurred with the land of S/Sh. Karam Chand, Joginder Singh and Layak Ram all sons of Ram Krishan, residents of Village Makhnumajra, under Patwari Circle, Thana, were hence also required to be recorded therein contemporaneously with the recording by the petitioner herein the fact scribed in rapat No.8 entered by him at the instance of Shri Layak Ram son of Shri Banta Ram in the apposite ::: Downloaded on - 15/04/2017 19:20:49 :::HCHP 4 rojnamacha portraying the fact of the latter having exchanged six bighas of land comprised in Khata Khatoni No. 40/41 situated at Village Kolimajra with the land of the aforesaid at .
village Makhnu Majra falling in Patwari Circle Thana, for hence the aforesaid recitals recorded by the petitioner to be bereft of any falsity , Necessarily with no such contemporaneous rapat of of exchange occurring in the rojnamacha of Patwar Circle Thana, wherein village Makhnumajra falls, obviously rt purportedly rendered the act of the petitioner herein to enter rapat No.8 in the rojnamacha of Patwar Circle Bhud portraying the factum of Laiq Ram son of Shri Banta Ram having exchanged 6 bighas of land comprised in khata khatoni No.40/41 situated at village Kolimajra with the land of S/Shri Karam Chand, Joginder Singh and Layak Ram all sons of Ram Krishan, situated at village Makhnumajra, under Patwar Circle Thana, to be false. During the course of investigation of the case, the Investigating Officer uncovered the factum of Sh.
Layak Ram son of Shri Banta Ram having subsequent to the attestation of mutation of exchange by Shri Baga Ram, Tehsildar, Nalagarh, alienated his land situated at village ::: Downloaded on - 15/04/2017 19:20:49 :::HCHP 5 Kolimajra under patwar circle Bhud in favour of S/Sh. Karam Chand, Joginder Singh and Layak Ram, all sons of Shri Ram Kishan which factum was concluded by him to be comprising a .
graphic disclosure of the recording of rapat No.8 by the petitioner herein and the attestation of mutation thereupon by Sh. Baga Ram, Tehsildar being a facilitator to the vendors to of avoid payment of stamp duty and registration fee to the tune of Rs.13,34,652 which otherwise was payable by them to the rt State of Himachal Pradesh. Consequently, he concluded the causing wrongful gain to the vendors aforesaid and wrongful loss to the State exchequer.
3. The learned counsel appearing for the petitioner has with force contended before this Court that the act of the Patwari in entering rapat No.8 in the rojnamcha of Patwar Circle Bhud at the instance of Shri Layak Ram son of Shri Banta Ram manifesting the factum of his having exchanged six bighas of land comprised in Khata/Khatoni No.40/41 situated at village Kolimajra with S/Sh. Karam Chand, Joginder Singh and Layak Ram all sons of Shri Ram Kishan at village Makhnumajra, even if assumingly is either legally flawed or ::: Downloaded on - 15/04/2017 19:20:49 :::HCHP 6 imbued with any vice of falsity, yet when he had in doing so performed his official duties as enjoined upon him by Clause 8.1 existing in Chapter 8 of the H.P. Land Records Manual, .
relevant portion whereof stand extracted hereinafter, no inculpatory role is fastenable upon him :-
"8.1. (1) The mutation Register is prescribed in Section 34(3) and 35 of the Land Revenue Act for the entry of of every acquisition of any right of interest in an estate as a landowner, assignee or occupancy tenant, and under Section 36 of disputed acquisition of other rights. The mutation register is not a part of the record of rights rt and its entries do not share in the presumption of truth attached to that record. All mutations of rights of ownership or occupancy including voluntary partitions, shall be entered by the patwari in the register when they are reported to him by the transferee as required by Section 35 of the Land Revenue Act and if not so reported then so soon as they appear to have been acted upon. When he enters a mutation affecting the Shajra Nasb the patwari shall note in pencil the number of the mutation against the entry affected. If and when the mutation is sanctioned, he shall amend the Shajra Nasb in red ink in accordance with the mutation order.
(2) The provisions of sections 54, 107 and 123 of the Transfer of Property Act were made applicable in H.P. vide Deputy Secretary (Rev.) to the Govt. of H.P. letter NO.17-13/66, Rev. I, dated 6.1.1971 whereby registration of sale (S.54) lease (S.107) and gift (S.123) have been made compulsory. In the case of acquisition of rights of such nature, the patwari will enter mutation ::: Downloaded on - 15/04/2017 19:20:49 :::HCHP 7 on the basis of registration memorandum or registered deed.
(3) Other acquisitions of rights or interests based upon oral transactions i.e. without registration shall be .
entered in the register of mutation by the patwari when reported to him under section 35 of the Act ibid i.e. acquisitions through Release, Settlement, Mortgage with possession, Exchange and creation of tenancy etc. but subject to the provisions contained in section 118 of the H.P. Tenancy and Land Reforms Act, 1972 and section 3 of H.P. Transfer of Land (Regulation) Act, of 1968 read with paras 18.24, 18.25, 18.26 and 18.29 infra.
(4) The Revenue Officer shall attest such mutations based upon oral transactions in the presence of the rt parties in accordance with the provisions of section 38 of H.P. Land Revenue Act, 1954 in case the acquisitions are otherwise legal. ............"
He has also contended that his act of recording rapat No.8 in the rojnamacha of Patwar Circle Bhud portraying the factum aforesaid was neither malafide nor it sequeled the attestation of mutation thereupon by the competent Revenue Officer, as the attestation of mutation by Shri Bagga Ram, Tehsildar, Nalagarh on the purported strength of recording of rapat No.8 by the petitioner herein in the roajnamacha of Patwar Circle Bhud at the instance of Layak Ram son of Shri Banta Ram was rather a sequel to Shri Dharam Pal, Kanungo verifying the ::: Downloaded on - 15/04/2017 19:20:49 :::HCHP 8 factum of exchange recorded by him in rapat No.8 in the rojnamacha of Patwar Circle Bhud. The subtle nuance of his submission is of Dharam Pal Kanungo being rather enjoined to .
verify the truth of the portrayals in rapat No.8 which he omitted to, hence the omission of the latter to carry out an incisive verification for unravelling the truth or falsity of the recording of of the apposite rapat No.8 by him in Patwar Circle Bhud does not attract any vice of criminal culpability to his performing the rt enjoined mandatory duty in recording it especially when its performance by him stood cast upon him by the relevant provisions of the H.P. Land Records Manual besides by Section 35 of the H.P. Land Revenue Act. The provisions of Section 35 of the H.P. Land Revenue Act read as under:-
" 35 "Making of that part of [periodical] record which relates to land-owners, [etc.] assignees of revenue and occupancy tenants.- (1) Any person acquiring by inheritance, purchase, mortgage, gift or otherwise, any right in an estate as a land-owner [etc.] assignee of land revenue, or tenant having a right of occupancy, shall report his acquisition of the right to the patwari of the estate.
(2) If the person acquiring the right is a minor or otherwise disqualified, his guardian or other person having charge of his property shall make the report to the patwari.::: Downloaded on - 15/04/2017 19:20:49 :::HCHP 9
(3) The patwari shall enter in his register of mutations every report made to him under sub-section (1) or sub-
section (2) and shall also make an entry therein respecting the acquisition of any such rights as .
aforesaid which he has reason to believe to have taken place, and of which a report should have been made to him under one or other of those sub sections and has not been so made.
(4) No Revenue Court shall entertain a suit or application by the person so succeeding or otherwise obtaining possession until such person has made the of report required by this section ..............................................."
4. The aforesaid submission of the learned counsel rt appearing for the petitioner herein to exculpate his liability qua the incriminatory role attributed to him by the Investigating Officer appears attractive, yet the inculpatory role attributed to the petitioner herein by the Investigating Officer when arises, as emanable from a scrutiny of the record maintained by the Investigating Officer and produced before this Court for its perusal, not only from his while being enjoined to perform his statutory duties his hence having entered rapat No.8 in the rojnamacha of Patwar Circle Bhud, rather from palpable supervening circumstances which pointedly convey the existence of complicity inter se the petitioner with Shri Layak ::: Downloaded on - 15/04/2017 19:20:49 :::HCHP 10 Ram son of Shri Banta Ram, which prodded his recording of rapat No.8 in the rojnamacha of Patwar Circle Bhud, besides collusion with S/Sh. Karam Singh, Joginder Singh and Layak .
Ram, all sons of Shri Ram Kishan, especially to, as displayed by the Investigating Officer in his report prepared under Section 173 of the Cr.P.C., facilitate the evasion of stamp duty or of registration fee by the latter and that too in connivance with Bagga Ram, Tehsildar, Nalagarh, Dharam Pal, Kanungo, who rt along with the petitioner herein also stand named as accused in the FIR, hence emasculates for the following reasons the strength of his submission:- (a) Karam Chand, Joginder Singh and Layak Ram, all sons of Shri Ram Krishan having subsequently purchased land measuring 8.1 bigha from S/Shri Roshan Lal, Bhag Singh sons of Shri Nikku Ram and Beli Ram son of Shri Lahasnu and 6 bighas of land from Shri Layak Ram son of Shri Banta Ram resident of Koli Majra, Tehsil Baddi, District Solan, H.P. (b) Mutation No. 350 attested by Shri Bagga Ram, Tehsildar Nalagarh on the strength of rapat No.08 recorded by the petitioner herein in rojnamacha of Patwar Circle Bhud and which stood verified by co-accused Dharam ::: Downloaded on - 15/04/2017 19:20:49 :::HCHP 11 Pal, Kunungo having stood on 25.07.2012 cancelled by Tehsildar, Baddi. (c) On 10.09.2008 Rs.13,34,000/- having been, in quick succession to the recording of rapat No.8 by the .
petitioner herein, withdrawn by Shri Karam Chand from his bank account No.117810011024, Dena Bank, Baddi and Rs.13,33,000 each having been withdrawn by his brothers Shri of Joginder Singh and Shri Layak Ram from their bank accounts No.117810011023 and 117810011025 respectively, and (d) on rt 13.10.2008 Layak Ram son of Shri Banta Ram having purchased 24 kanal and 13 marla of land at village Haripur-
Basdar, District Ropar, Punjab for a sale consideration of Rs.39,00,750/- vide sale deed No.1823 of 3.10.2008.
Imperatively, the inference which is drawable from the aforesaid facts, is of the petitioner herein having prima facie colluded with Layak Ram son of Shri Banta Ram while accepting his statement qua his having exchanged his 6 bighas of land comprised in Khata Khatoni No.40/41, situated at village Kolimajra with S/Shri Karam Chand, Joginder Singh and Layak Ram all sons of Shri Ram Kishan at village Makhnumajra and his then proceeding to record rapat No.8 in the rojnamacha ::: Downloaded on - 15/04/2017 19:20:49 :::HCHP 12 of Patwar Circle Bhud which further led the Tehsildar, Nalagarh, Shri Baga Ram on the recommendation of Shri Dharam Pal, Kanungo to attest mutation of exchange especially .
when it was not a bonafide exchange arising from no contemporaneous entries having stood recorded in the apposite record maintained by the patwari concerned manning Patwari of Circle, Thana, whereunder the land of Karam Chand, Joginder Singh and Layak Ram, all sons of Ram Kishan is located, rt manifesting the factum of their land located therein having been exchanged with the land of Layak Ram, son of Shri Banta located at Village Kolimajra under Patwar Circle Bhud, for hence imbuing rapat No.8 recorded by the petitioner herein in the rojnamacha of Patwari Circle Bhud with veracity. Necessarily then, reinforced vigour is lent to the propagation by the Investigating Officer of the petitioner herein along with other accused having facilitated all the aforesaid to evade stamp duty besides registration fees, by his act of recording false rapat No.8 in the rojnamacha of Patwar Circle Bhud, Tehsil Nalagarh, hence empowering the Revenue Officer concerned to attest mutation of exchange qua the land of Shri Layak Ram son of ::: Downloaded on - 15/04/2017 19:20:49 :::HCHP 13 Shri Banta Ram at Village Kolimajra in favour of S/Sh. Karam Chand, Joginder Singh and Layak Ram, all sons of Ram Kishan even when the land of the latter located at Village .
Makhanumajra falling in Patwar Circle Thana stood unverified at all stages by each of the accused, to have been entered in the apposite rojnamacha by the patwari of Patwar Circle, of Thana as standing exchanged by the aforesaid in favour of Layak Ram son of Shri Banta Ram, in lieu of the latter having rt exchanged his land failing in Patwar Circle Bhud with the former. Obvivously when all the accused derelicted at all the stages since the inception of recording of rapat No.8 by the petitioner herein in the rojnamacha of Patwar Circle Bhud uptill the attestation of mutation thereupon by Shri Baga Ram, Tehsildar preceding which a prima facie collusive besides an invented verification was carried out by Shri Dharam Pal, Kanungo, in each respectively verifying the truth or falsity of the recitals in rapat No.8 by eliciting from the patwari concerned of Patwar Circle, Thana, contemporaneous entries existing in the apposite record connotative of S/Sh. Karam Chand, Joginder Singh and Layak Ram, all sons of Shri Ram ::: Downloaded on - 15/04/2017 19:20:49 :::HCHP 14 Kishan having exchanged their land falling under Patwar Circle, Thana with the land of Layak Ram falling under Patwar Circle, Bhud, hence attracts penal culpability to their negligence, .
besides dereliction of duty in regard aforesaid.
5. Cancellation of both mutations No.350 and 351 on 25.07.2012 by the Tehsildar, Baddi, being a sequel to Layak of Ram, Joginder Singh and Karam Chand all sons of Ram Kishan having preferred an application before the Tehsildar, concerned rt even when there was passing of consideration from Joginder Singh, Layak Ram and Karam Chand, all sons of Ram Kishan to Layak Ram son of Shri Banta Ram much prior to the cancellation of mutations No.350 and 351 rather in quick succession to the recording of rapat No.8 by the petitioner herein besides, with the handwriting expert having recorded an opinion qua the factum of the date scribed on the apposite application being in the hands of the petitioner herein, vividly pronounces the fact of his throughout colluding with as also being in complicity with Karam Chand, Joginder Singh and Layak Ram, all sons of Shri Ram Kishan. Consequently, he was even at the stage of recording of rapat No.8 aware of besides, in the know of the fact that he was at the instance of Layak ::: Downloaded on - 15/04/2017 19:20:49 :::HCHP 15 Ram son of Shri Banta Ram entering a false report No.8 in the rojnamacha of Patwar Circle Bhud portraying therein the purported fact of the aforesaid having exchanged land .
measuring 6 bighas comprised in khata khatoni 40/41 situated at Village Kolimajra with the land of S/Sh. Karam Chand, Joginder Singh and Layak Ram, all sons of Shri Ram Kishan at of Village Makhnu Majra.
6. In aftermath, the contention of the learned counsel rt for the petitioner herein that the latter had in entering rapat No.8 in rojnamacha of Patwar Circle Bhud merely performed his enjoined statutory duty to which no penal culpability is attractable besides, his contention of mutation No.350 attested thereupon by Tehsildar, Nalagarh, Shri Baga Ram, being a sequel to misverification by Shri Dharam Pal, Kunungo, for whose omission to incisively verify the truth or falsity of recitals in rapat No.8 no penal culpability is fastenable upon him, marshals no force or strength. As a concomitant rather with even the Tehsildar, Nalagarh, Shri Baga Ram as well as Shri Dharam Pal, Kanungo having been named as accused along with the petitioner herein begets an inference of there ::: Downloaded on - 15/04/2017 19:20:49 :::HCHP 16 being collusion inter se the petitioner herein as well as the aforesaid co-accused besides, there being collusion and complicity intra se the aforesaid with Layak Ram son of Shri .
Banta Ram as well as with S/Sh. Karam Chand, Layak Ram and Joginder Singh, all sons of Shri Ram Kishan. Resultantly, with the relevant material prima facie upsurging and portraying of complicity intra se the aforesaid, any inertia besides, inaction on the part of the co-accused to ascertain the cardinal fact of rt contemporaneity inter se the recording of rapat No.8 by the petitioner herein and its sequeling attestation of mutation of exchange carrying No.350 by Shri Baga Ram, Tehsildar, Nalagrah co-accused qua the land of Layak Ram son of Banta Ram located in Patwar Circle Bhud with the lands of Karam Chand, Joginder Singh and Layak Ram, all sons of Shri Ram Kishan located within Patwar Circle, Thana vis-à-vis the recording of an apposite rapat by the Patwari concerned of Patwar Circle Thana qua exchange of lands of Karam Chand, Joginder Singh and Layak Ram, all sons of Shri Ram Kishan located within Patwar Circle, Thana with the land of the aforesaid is imminently lacking in any vestige of bonafides, ::: Downloaded on - 15/04/2017 19:20:49 :::HCHP 17 rather prima facie appears to be prompted by malafides. The aforesaid inference constrains this Court to conclude that prima facie the allegations constituted against the petitioner in the .
final report prepared by the Investigating Officer are neither unworthwhile nor also they are prima facie ingrained with any falsity, as a corollary then, the submission of the learned of counsel appearing for the petitioner herein that prima facie no truth is enjoyed by the allegations constituted by the rt Investigating Officer in his final report stands effaced.
7. For the foregoing reasons, there is no merit in the instant petition which is accordingly dismissed. However, it is made clear that any observation made hereinabove shall not be taken as an expression of opinion on the merits of the case and the learned trial Court as and when seized of the matter shall proceed to decide the matter remaining uninfluenced by any observations made hereinabove. All the pending applications also stand disposed of.
(Sureshwar Thakur) th 16 November, 2015 Judge.
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