Uttarakhand High Court
Petitioners vs State Of Uttarakhand & Others on 4 September, 2018
Author: Sharad Kumar Sharma
Bench: Sharad Kumar Sharma
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
Writ Petition (Criminal) No. 299 of 2018
Smt. Ritu Jhamb & Others
...Petitioners
Vs.
State of Uttarakhand & Others
...Respondents
With
Writ Petition (Criminal) No. 1493 of 2018
Ram Avtar
...Petitioner
Vs.
State of Uttarakhand & Others
...Respondents
Writ Petition (Criminal) No. 1544 of 2018
Sher Singh Gwal
...Petitioner
Vs.
State of Uttarakhand & Others
...Respondents
Mr. D.K. Sharma, Senior Advocate assisted by Mr. Lalit Sharma, Advocate for the
petitioners.
Mr. P.S. Bohara, Deputy Advocate General for the State/respondent nos. 1 & 2.
Mr. Vikas Bahuguna, Advocate for respondent no. 3.
JUDGMENT
Dated: 04 September, 2018 Sharad Sharma, J. (Oral) The present Writ Petition has been preferred by the petitioner who is a Nayab Tehsildar calling in question the FIR No. 0056/2018 dated 12.02.2016 registered at Police Station Sitarganj, District Udham Singh Nagar, under Sections 420, 467, 468 & 471 lodged by respondent no. 4, alleging thereof that the petitioner had colluded with the rival parties in mutation proceedings, which was filed before him. Brief narration of the facts which is essentially required for being considered is that a mutation proceedings was initiated under Section 34 r/w 35 of Land Revenue Act, 1904 (hereinafter to be referred as 1904 Act) by one Mrs. Ritu Jhamb wherein she sought herself to be recorded in revenue records on the 2 basis of Will which was registered as Case No. 30/572 of 2016-17. The case of the respondent herein is that those proceedings initiated by way of a Case No. 30/572 of 2016-17 is a sham proceedings for the reason it has been instituted against a dead person and the fact of death of the opposite party to the proceedings was in the knowledge of the applicant since being the daughter as respondent was predeceased about four years earlier. The proceeding thus instituted by Ritu Jhamb was a nonest proceedings against a dead person, it was dismissed for want of prosecution on 16.10.2017. The Land Revenue Act under Section 201 provides the manner in which an order passed in default or exparte can be recalled.
2. It contemplates a recall of an order only when the applicant extends a "good ground" for absence and the said application has to be filed "within 15 days", after the order of dismissal in default. The provisions of Section 201 contemplate that the no order passed exparte or dismissal in default could be recalled without prior summons being sent to the adversary party. In the instant case the provision of Section 201 of Uttar Pradesh Land Revenue Act, 1901 is quoted hereunder:
"201. No appeal from orders passed ex parte or by default-
No appeal shall lie from an order passed under Section 200 ex parte or by default.
Re-hearing on proof of good cause for non- appearance-
But in all such cases, if the party against whom judgment has been given appears either in person or by agent (if a plaintiff, within fifteen days from the date of such order, and if a defendant, within fifteen days after such order has been communicated to him, or after any process for enforcing the judgment has been executed or at any earlier period), and shows good cause for his non- appearance, and satisfies the officer making the order that there has been a failure of justice, such officer may, upon such terms as to costs or otherwise as he thinks proper, revive the case and alter or rescind the order according to the justice of the case:
Order not to be altered without summons to adverse party-3
Provided that no such order shall be reversed or altered without previously summoning the party in whose favour judgment has been given to appear and be heard in support of it."
3. The applicant Ritu Jhamb to the proceedings under Section 34 r/w 35 is said to have moved an application for recalling of the order dated 16.10.2017 by filing an application dated 14.12.2017 i.e. much beyond 15 days. In the said application the only reason assigned was that she wants to contest the proceedings. This may not fall to be within the parameters of consideration provided under Section 201 of the Act as to be good cause. Surprisingly, without complying with the process provided under Section 201 itself regarding issuance of notice to the other side, the present petitioner had recalled the order on 14.12.2017 i.e. on date of filing of the application itself. This Court is not in a position at this stage to record any finding pertaining to as to how being a person who acclaims to be backed with 31 years of experience in revenue field has proceeded in a manner dehorse to the provisions of the Act. He submits in his defense that he cannot be held responsible for any subsequent orders for the reason that his service stood transferred from the present place of posting on 20.03.2018. The coordinate Bench of this Court had passed an order on 18.07.2018 in Writ Petition No. 299 of 2018 'Smt. Ritu Jhamb & Others vs. State of Uttarakhand & Others' recording the following finding in paragraph 5 to 7, which is quoted hereunder:
"5. High Court vide order dated 18.06.2018 dismissed the writ petition with the following observation:
"Petitioner no. 1 has received a show cause notice from the Additional District Magistrate (Administration/Nazul), Udham Singh Nagar, wherein it has been alleged that petitioner no. 1 has prepared a forged and fabricated "Will" after four years of death of one Mr. Vishwanath Kakkar and in the said case, the Sub-Registrar, Sitarganj, Udham Singh Nagar and the then Tehsildar, Sitarganj are also prime suspects that they had connived with the petitioner no. 1. In view of this Court, this is only a show cause notice to which the petitioner no. 1 also replied. No interference is called for by this Court at this stage.
Consequently, the writ petition stands dismissed in limine."4
6. The Co-ordinate Bench in its order dated 18.06.2018 has recorded the findings that Sub-Registrar Sitarganj Udham Singh Nagar and the Tehsildar, Sitarganj are also bribe suspects that they connived with the petitioner no. 1 in preparing the forged and fabricated Will.
7. The FSL report has been filed by the State which depicts that the signature on the alleged Will dated 26.02.2018 of Late Vishwanath Kakkar are forged".
4. Thereafter the Investigation Officer was directed to appear before the Court giving details regrds to the progress of the investigation and the actions taken by the Investigating Officer against the Sub Registrar and Tehsildar of Sitarganj. It is very pathetic to observe with regards to as to the manner and diligence with which the investigating agencies have conducted the investigation in the matter, where despite of the fact that there was a direction issued by the Court to submit inspection report regarding progress of case and even today when the Investigating Officer has put in personal appearance before this Court, he admits the fact that investigation has not yet been completed.
5. In the Writ Petition No. 299/2018 the State has filed an application no. 6390/2018 under the affidavit of the Investigating Officer Mr. Madan Mohan Joshi. In paragraph 5 he has submitted that accused persons, namely, Tehsildar-Sher Singh Gwal, Ram Avtar- Revenue Sub Inspector and Ramesh Pant-Sub Registrar of Registrars Office Sitarganj, are absconding and they are not cooperating with the investigation and despite of the best efforts they cannot be arrested. This excuse taken by an Investigating Officer reflects the incapacity of the police agency to take an action against their own Government officials who are observed to be responsible for the allegations and offence leveled in the FIR. Such type of derelicted by investigation is depreciated by this Court. The Investigating Officer, who is present before this Court, submits that he needs another two weeks' time to complete the investigation. The time as prayed for is granted and it is made clear that no further time would be granted for concluding the investigation and if he fails to do so within the time prayed for and 5 granted, this Court will be constrained to pass an order directing the State Government for an action against the Investigating Officer also on the administrative side.
5. Mr. D.K. Sharma, learned senior counsel submits that the petitioner Mr. Sher Singh Gwal is rather cooperating in the investigation and has presented himself before the earlier Investigating Officer. Be that as it may Mr. Sher Singh Gwal, who is present before this Court and identified by his counsel Mr. D.K. Sharma, learned Senior Advocate undertakes that he will render full cooperation in the investigation to be conducted by the Investigating Officer, within the aforesaid time period and will not abscond from the investigation as reported by the Investigating Officer. If he does not participate diligently in the investigation, the Investigating Officer is directed to take stringent action against him including his arrest. For the period of two weeks subject to the condition that petitioners of all the Writ Petitions participate and renders full cooperation in the investigation no coercive action by way of an arrest would be taken against him. Failing to do so the interim protection granted by this Court will automatically stand vacated without reference to the Bench.
6. Put up this matter immediately after two weeks. The personal attendance of Investigating Officer and Tehsildar is exempted until and unless it is required in future.
7. Interim order is extended till the next date of listing.
(Sharad Kumar Sharma, J.) 04.09.2018 Pooja