Punjab-Haryana High Court
Laxmi Devi vs State Of Haryana on 15 January, 2018
Author: Rakesh Kumar Jain
Bench: Rakesh Kumar Jain
CWP No.13657 of 2012 [1]
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IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CWP No.13657 of 2012
Date of decision: February 15, 2018
Laxmi Devi ...Petitioner
Versus
State of Haryana ...Respondent
Coram: Hon'ble Mr. Justice Rakesh Kumar Jain
Present: Mr. Atul Lakhanpal, Senior Advocate,with
Ms. Babli Kumari, Advocate, for the petitioner.
Mr. Saurabh Mohunta, DAG, Haryana.
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Rakesh Kumar Jain, J. (Oral)
The petitioner has prayed for the issuance of a writ in the nature of certiorari for quashing the order dated 28.06.2012, by which the respondent has declined to grant sanction for prosecution.
In brief, the petitioner had purchased 08 Kanal 10 Marlas land with construction on 12.01.2001 and applied for Change of Land Use (CLU) on 02.02.2001 for developing the said land for club and fun park and deposited `43,000/- by way of demand draft. The District Town Planner, Rewari, vide its letter dated 02.03.2001, made the recommendation for grant of CLU to the Senior Town Planner, Gurugram. The allegation of the petitioner is that K.K.Yadav, District Town Planner, Rewari, after making recommendation to the Director, Town and Country Planning, Haryana, asked the petitioner to give half of the land to him towards the price of his services for recommending the grant of CLU. The petitioner had allegedly declined her demand and, 1 of 7 ::: Downloaded on - 21-05-2018 00:14:36 ::: CWP No.13657 of 2012 [2] ***** thereafter, K.K.Yadav, manipulated his own recommendations by making certain cutting and additions in his report, as a result thereof, the Director, Town and Country Planning, Haryana, vide letter dated 11.06.2001, informed the petitioner that the CLU cannot be granted, by making following observations:-
"1. According to the last development plan of proposed place, Rewari, your land falls in agriculture zone. According to Zoning Regulations of Development Plan in the said zone, no permission can be granted for change of land use for construction of club and fun park.
2. You have shown modern construction in proposed place by this you violated Section 6 and 7 of Punjab Scheduled Roads and Control Area Registration of Un-regularized Development Act, 1963.
3. 33 feet wide revenue passage shown by you in proposed place is not entered in the revenue record.
4. Date of purchase of material of proposed place is of after 16.10.74."
In the meantime, the petitioner had purchased another plot bearing 02 Kanal 12 Marlas with a house on it on 01.05.2001. She filed appeal against the order of rejection and it is alleged that while the appeal was pending, the respondent had demolished the house also on 07.06.2001 forcibly, though the petitioner had not applied for the CLU for it. The petitioner challenged the order of rejection of CLU dated 11.06.2001 by way of statutory appeal, as provided under Section 10 of the Punjab Scheduled Roads and Control Area Registration of Un-regularized Development Act, 1963 (hereinafter referred to as the "Act"), which was dismissed by the Financial Commissioner & Secretary, Department of Country Planning, Haryana, on 11.01.2002. Thereafter, the petitioner filed a complaint against Mahavir 2 of 7 ::: Downloaded on - 21-05-2018 00:14:37 ::: CWP No.13657 of 2012 [3] ***** Kaushik, SDO (Civil), K.K. Yadav, District Town Planner, Rewari and Ram Niwas, Junior Engineer in the office of the District Town Planner, Rewari, under Sections 406, 420, 427, 447, 465, 467, 468, 471, 506, 342 read with Section 34, 120-B IPC and Section 13 of the Prevention of Corruption Act before the Chief Judicial Magistrate, Rewari, in which summoning order was passed on 06.11.2006 by the Judicial Magistrate 1st Class, Rewari, with the following order:-
"..... Thus, in my view, from the preliminary evidence of complainant offences punishable under section 427, 447, 342/34 IPC have been made out against the accused no.1 to 3. While against accused kno.2 as I discussed in detail above, it has been made out that he committed offences punishable under section 463/465/471 of IPC and Section 7 and Punishable under Section 12 of Prevention of Corruption Act of 1988. Against all the accused no.1 to 3 it has been made out that all these accused in prosecution of their common intention committed offences punishable under Sections 427/447/342/34 IPC. Hence, it is ordered that accused no.2 be summoned for commission of offence punishable under sections 463/465/471 IPC and Section7 and 12 of Prevention of Corruption Act of 1988 along with accused no.1 & 3 for the commission of offence punishable under Sections 427/447/342/34 IPC. Notice to accused be issued accordingly subject to compliance of Section 204 (4) of Cr.P.C. returnable for 11.12.2006."
The order dated 06.11.2006 was challenged by Mahavir Kaushik who was summoned for the offences committed under Section 427, 447, 342/34 IPC, by way of Crl. Misc. No.M-6465 of 2007. The said petition was allowed by this Court on 17.09.2009 with the following observations:-
"In the instant case, the petitioner has been summoned for offences under Sections 427, 447 and 342 IPC only. The said offences pertain to the occurrence of demolition of the respondent's structures. The said demolition was carried out in discharge of
3 of 7 ::: Downloaded on - 21-05-2018 00:14:37 ::: CWP No.13657 of 2012 [4] ***** official duty and, therefore, no offences can be said to have been committed by the petition and sanction for his prosecution for the said offences is also required under Section 197 Cr.P.C. Which has not been obtained. The prosecution of the petitioner in the impugned criminal complaint shall be an abuse of the process of court which has to be prevented by this Court by exercising inherent jurisdiction under Section 482 Cr.P.C. Prosecution of public servants for acts committed in discharge of official duty cannot be permitted without necessary sanction because otherwise it would become difficult for them to discharge their official duty.
For reasons recorded here-in-above, the instant petition is allowed and impugned Criminal Complaint No.72 RT/20.12.2003 dated 09.08.2006 (Annexure P-1) filed by respondent Laxmi Devi under Sections 406, 420, 427, 447, 465, 467, 468, 471, 506 and 342 read with Sections 34 and 120-B IPC and Section 13 of the Prevention of Corruption Act is quashed along with all consequential proceedings arising therefrom, as against the petitioner only."
The petitioner, thereafter, made a representation seeking formal sanction under Section 197 Cr.P.C. against all the three persons, namely, Mahavir Kaushik, K.K.Yadav and Ram Niwas but since it was not decided, then the petitioner filed CWP No.21767 of 2011, which was disposed of on 24.02.2012 by this Court with a direction to the Secretary, Town and Country Planning, Haryana to take a decision on the representation dated 26.09.2011 within a period of 2 months from the date of receipt of certified copy of the order. Accordingly, the representation was decided on 28.06.2012 and the sanction for prosecution was declined by observing that "in these circumstances, action of Sh. K.K.Yadav, the then Distt. Town Planner Rewari and Sh. Ram Niwas JE o/o DTP Rewari in getting the unauthorized construction removed with the help of police and Sh. Mahavir Kaushik HCS as Duty Magistrate was fully justified and in accordance with the proviisons of 4 of 7 ::: Downloaded on - 21-05-2018 00:14:37 ::: CWP No.13657 of 2012 [5] ***** the Act of 1963".
It is also pertinent to mention that K.K.Yadav had challenged the order dated 06.11.2006, by which Judicial Magistrate 1st Class, had summoned him to face the trial under Sections 427, 447, 342/34, 463, 465, 471 IPC and Section 7 and 12 of the Prevention of Corruption Act, 1988, by way of a revision petition before the Additional Sessions Judge, Rewari. The said revision petition was allowed on 05.08.2011, in which he had observed that the demolition was carried out by K.K.Yadav while discharging his official duty and he had not committed any offence. The said order dated 05.08.2011 passed by the Additional Sessions Judge, Rewari was challenged by the petitioner by way of Crl. Revision No.2998 of 2011, which has been dismissed by this Court vide order dated 06.01.2015. The petitioner then challenged the said order dated 06.01.2015 by way of SLP (Crl.) No.2432 of 2015, which too was dismissed on 11.08.2015 by the Supreme Court.
Learned counsel for the petitioner has submitted that while passing the impugned order dated 28.06.2012, by which sanction for prosecution has been declined, the sanctioning authority has not considered the material placed before it. It is submitted that the sanctioning authority did not apply its mind, therefore, the impugned order is patently erroneous and liable to be set aside.
On the other hand, learned counsel for the respondent has submitted that the order of declining sanction has been passed after assessing the material available on record to the effect that the action taken by the officers was in accordance with the provisions of the Act and the rules framed thereunder because it is provided in Section 6 and 7 of the Act that no 5 of 7 ::: Downloaded on - 21-05-2018 00:14:37 ::: CWP No.13657 of 2012 [6] ***** construction can be raised in the controlled area without prior approval of the Director, Town and Country Planning, Haryana. It is also submitted that the officers, against whom the sanction has been sought, have performed their duties in accordance with law, much-less while discharging their official function.
He has referred to a decision of the Supreme Court rendered in the case of State of Karnataka vs. Ameer Jan, 2007(4) RCR (Criminal) 375, in which it has been held that "an order of sanction should not be construed in a pedantic manner. But, it is also well settled that the purpose for which an order of sanction is required to be passed should always be borne in mind. Ordinarily, the sanctioning authority is the best person to judge as to whether the public servant concerned should receive the protection under the Act by refusing to accord sanction for his prosecution or not".
He has also referred to another judgment of the Supreme Court rendered in the case of State of Himachal Pradesh vs. Nishant Sareen, 2011(1) RCR (Criminal) 193, in which, while dealing with the case of sanctioning in a case of corruption, the following observations have been made:-
"(i) The object underlying Section 19 is to ensure that a public servant does not suffer harassment on false, frivolous, concocted or unsubstantiated allegations.
(ii) Sanctioning authority is supposed to apply its mind to the entire material and evidence placed before it and on examination thereof reach conclusion fairly, objectively.
(iii) Section 19 of Prevention of Corruption Act or Section 197 Cr.P.C. does not make any express provision regarding review or reconsideration of the matter by the sanctioning authority once such power has been exercised. However, where fresh material is collected by Investigating Agency,
6 of 7 ::: Downloaded on - 21-05-2018 00:14:37 ::: CWP No.13657 of 2012 [7] ***** the sanctioning authority may grant sanction for prosecution on the basis of fresh material."
After hearing learned counsel for the parties, examining the available record and keeping in view the facts and circumstances, I do not find any reason to interfere in the impugned order especially in view of the fact that a consistent finding has been recorded by various Courts that the officers, against whom the sanction is being sought, had demolished the construction while discharging their official functions. Moreover, the petitioner has been found to have violated the provisions of the Act and the Rules made thereunder by raising construction without seeking permission, as required under the Act, and the various notices attached with the reply, having been issued under Section 12 of the Act also shows that the alleged action was taken after the due procedure was followed.
In view of the above, the writ petition is found to be totally without any merit and hence, the same is hereby dismissed, though without any order as to costs.
February 15, 2018 (Rakesh Kumar Jain)
vinod* Judge
Whether speaking / reasoned : Yes/No
Whether reportable : Yes/No
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