Allahabad High Court
Sunil Kumar vs State Of U.P. And 2 Others on 9 May, 2024
Author: Siddharth
Bench: Siddharth
HIGH COURT OF JUDICATURE AT ALLAHABAD
Neutral Citation No. - 2024:AHC:83692-DB
Reserved on 19.04.2024
Delivered on 09.05.2024
Case :- CRIMINAL MISC. WRIT PETITION No. - 15714 of 2022
Petitioner :- Sunil Kumar
Respondent :- State Of U.P. And 2 Others
Counsel for Petitioner :- Girijesh Kumar Gupta,Shiv Shankar Pd Gupta
Counsel for Respondent :- G.A.
Hon'ble Siddharth,J.
Hon'ble Surendra Singh-I,J.
(Delivered by Hon'ble Siddharth,J)
1. Heard Sri Girijesh Kumar Gupta, learned counsel for the petitioner and the learned AGA for the State.
2. This writ petition has been filed with the following relief :
(a) a writ order or direction in the nature of certiorari quashing the impugned F.I.R dated 12.10.2022 in case crime no.0481/2022 under Section 420, 467, 468, 471, 120B I.P.C, Police Station Dhaulana, District Hapur.
(b) a writ order or direction in the nature of mandamus commaning the respondents as not arrest the petitioners in any manner.
(c) any other suitable writ, order or direction which this Hon'ble Court may deem fit and proper in the circumstances of the case.
3. On 20.10.2022, the following interim order passed by this Court :-
Heard Shri R.C. Singh, learned Senior Counsel assisted by Shri G.K. Gupta, learned counsel for the petitioner and learned AGA.
Present writ petition has been preferred for quashing the FIR dated 12.10.2022 being Case Crime No.0481 of 2022 under Section 420, 467, 468, 471, 120B IPC, P.S. Chaulana, Distt. Hapur.
The impugned FIR is challenged on the ground that initially the disputed property was allotted in favour of Dharmveer Singh. However, in a proceeding under Section 33/39 of LR Act his name was expunged on 3.8.1998. Consequently, an enquiry was got conducted and vide order dated 30.6.2004 (Annexure No.6) passed by the Asstt. Collector 1st/ Upper Upziladhikari Hapur (Ghaziabad) in Case No.2/30 under Section 33/39 LR Act the order dated 3.8.1998 was set aside and the name of Dharmveer was again recorded in the revenue records. The said property was sold by Dharmveer Singh to the petitioner vide sale deed dated 8.3.2021. Thereafter, the petitioner had transferred the same to M/s DKD Ikjot United Pvt. Ltd. through sale deed dated 30.12.2021. In the present matter a complaint was made by Ramveer on which three member committee was constituted by the concerned District Magistrate, which has submitted report on 28.9.2022. Much reliance has been placed upon the said enquiry report dated 28.9.2022 which discloses that the sale deed dated 8.3.2021, which was executed by Dharmveer Singh in favour of the petitioner appears to be prima facie valid sale deed as per the order dated 30.6.2004. But since this order dated 30.6.2004 has been acted upon after a long period of 16 years without obtaining a parvana amaldaramad from the court of Asstt. Collector so this is a violation of Para 39 of Revenue Court Manual. As such it is contended that the petitioner being bonafide purchaser having no concern with the aforesaid proceeding and there is no finding of inquiry report that the petitioner has committed any fraud, hence the FIR lodged on the political pressure is liable to be quashed.
Learned counsel for the petitioners submits that there is a civil dispute between the parties. The present first information report has been lodged against the petitioners on account of the civil dispute. A bare perusal of the FIR, no criminal offence is made out against the petitioners. It is submitted that the Court must ensure that criminal prosecution is not used as an instrument of harassment or for seeking private vendetta or with an ulterior motive to pressurise the accused. The allegations of cheating or fraud levelled against the petitioners are false and no offence under the aforesaid Sections is made out against the petitioners. Even though the proceedings are pending and neither the charge-sheet nor the final report has been submitted in the present case. In support of his submission, he has placed reliance on the judgement of Apex Court in Criminal Appeal No.932 of 2021 (Randheer Singh vs. the State of UP and ors) decided on 02.9.2021.
The matter requires consideration.
All the respondents are accorded four weeks time to file counter affidavit. One week, thereafter, is accorded to file rejoinder affidavit. List thereafter.
Till the next date of listing, the petitioner shall not be arrested pursuant to impugned FIR, provided he cooperates with the investigation in question.
4. Counter affidavit has been filed on behalf of informant/respondent no.3, wherein it has been stated that the aforesaid enquiry committee after conducting and completing the enquiry has submitted its joint enquiry report vide letter no. 1732/ST-Sub Divisional Magistrate/2022 dated 28.09.2022 to the District Magistrate, Hapur, in which, it has been mentioned that no file in respect of allotment of agricultural land in favour of Dharmveer son of Harkesh is maintained in the revenue records of Tehsil Dhaulana, District- Hapur. In the copies of the Khatauni of 1388 of 1393 Fasli Year (01.07.1980 to 30.06.1986) in respect of Khasra No. 1055 have been obtained, entire land of Khasra NO. 1055 area 25-7-0 Bigha is recorded as Banjar over Khata No. 1146 and in the Khatauni, under the order of Naib Tehsildar, vide Serial No. illegible date 11.02.1985 of Lease (Patta) Register, name of Dharmveer son of Harkesh has been recorded as Bhumidhar with non transferrable right over Gata No. 1055 area 1-10-0 Bigha (Pukhta Malgulari Rs. 9.35) by expunging the name of Gram Samaj. Under the order of Court of Parganadhikari, Hapur dated 03.08.1998 passed in Case No. 154, under Section 33/39, L.R. Act (State vs. Dharmveer ) the name of Dharmveer has been expunged from Khasra No. 1055/5 area 0.3790 Hectare situated in Village Dhaulana and name of Gram Sabha has been recorded over it. Thereafter, a restoration application bearing Case No. 2/30 was filed, which was allowed by the Court of Assistant Collector, First Class/Additional Sub Divisional Magistrate, Hapur vide its order dated 30.06.2004 setting aside the earlier order dated 03.08.1998 and the name of Dharmveer son of Harkesh has been recorded as Bhumidhar with non transferable right over Khasra No. 1055/5 Area 0.3790 Hectare situated in Village Dhaulana, as it was earlier, but at that time entries in respect of order dated 30.06.2004 were not made recorded in the revenue record, however, on the basis of application submitted by Dharmveer son of Harkesh, entries in respect of order dated 30.06.2004, has been recorded in Register Malkan (R-6) at Serial No. 365 vide order dated 14.12.2020 passed by Tehsildar, Dhaulana, District Hapur. The aforesaid order, whereby the order dated 30.06.2004 has been recorded in R-6 under the order of Tehsildar, Dhaulan, District Hapur, is available in the Guard File and on the documents, which are available in the Guard File, it has been mentioned that the application dated 03.12.2020 has been filed by Dharmveer son of Harkesh after lapse of 16 years from the date of passing of order dated 30.06.2004 and it has been requested by Dharmveer son of Harkesh that the order dated 30.06.2004 passed by the Court of Additional Sub Divisional Magistrate, Hapur may be recorded in the revenue records, and on the said application, the then Tehsildar, Dhaunala vide its order dated 14.12.2020 has directed the Revenue Inspector (Official Work) to record/mention the order dated 30.06.2004 in the revenue records and in compliance of the aforesaid order dated 14.12.2020. Revenue Inspector (Official Work) has made entries in respect of order dated 30.06.2004 in the revenue record on 31.12 2020 but the entry in respect of said order has not been made in the Computrized Khatauni.
5. In para 6 of the rejoinder affidavit, it has been stated that aforesaid inquiry committee made an inquiry from relevant records in which administrative as well as judicial records were also taken into consideration and ultimately a finding was recorded by the inquiry committee that the subsequent sale deed dated 08.03.2021 executed by Dharmveer Singh in favour of petitioner prima-facie appears to be valid the only irregularity is that without issuance of any parwana amaldaramad from the court concerned amaldaramad was done in revenue record after 16 years so in such circumstances the only aforesaid irregularity can not make out any offence of forgery under Section 420, 467, 468, 471, 120 IPC whereas on the basis of said report dated 28.09.2022 the order passed by District Magistrate dated 11.10.2022 has already been set aside in another writ petition being Writ C no. 32417 of 2023 M/S DKD Ikjot Private Ltd. Vs. State of U.P. and others by a judgment and order dated 12.10.2023.
6. The judgement passed by this court in the case Writ-C No.32417 of 2023 is being quoted hereinbelow:
1. Heard Mr. Shiv Shankar Pd Gupta assisted by Mr. Girijesh Kumar Gupta, Counsel for the petitioner, Mr. Abhishek Shukla, learned Additional Chief Standing Counsel for the State-respondents and Mr. Sunil Kumar Singh, Counsel for respondent no.5, Gram Sabha.
2. The instant petition has been filed for following relief:-
" A writ or direction in the nature of certiorari quashing the impugned order dated 11.10.2022 passed by respondent no.2 on a misc. application of respondent no.6 dated 16.9.2022 against a judicial order dated 26.2.2016 passed by Upziladhikari Hapur to the writ petition."
3. This Court has entertained the matter on 22.9.2023 and passed the following order:-
"1. Heard Mr. Shiv Shankar Prasad Gupta/Girijesh Kumar Gupta, learned counsel for the petitioner, Sri Abhishek Shukla, learned Addl. C.S.C. for the state-respondents and Sri Sunil Kumar Singh, learned counsel for the respondent-gaon sabha.
2. Counsel for the petitioner submitted that respondent no.7 was the recorded tenure holder of the plot in dispute, proceeding under Sections 33/39 of the U.P. Land Revenue Act was initiated in respect to plot in dispute against respondent no.7 which was concluded in favour of respondent no.7. The submission further is that revision filed against the order is pending before the Board of Revenue. It is further submitted that miscellaneous proceeding has been initiated and under the impugned order, it has been held that the sale deed executed by respondent no.7 in favour of the petitioner is void. It is also submitted that in the miscellaneous proceeding, the sale deed cannot be held to be void. It is also submitted that the proceeding under Sections 33/39 of the U.P. Land Revenue Act is pending in the form of revision before the revisional court, as such, there is no occasion for initiation of the miscellaneous proceeding. He further placed the order dated 21.7.2023 in Writ C No.19315/2023 in which similar controversy has been entertained by this Court and an interim protection has been granted.
3. On the other hand, Mr. Abhishek Shukla, learned Addl. C.S.C. for the state-respondents submitted that the writ petition against the impugned proceeding is not maintainable as only inquiry is under process and recommendation has been made against the authority concerned for initiating the proceeding.
4. Learned Addl. C.S.C. is granted 10 days' time to obtain instruction in the matter specifically on the point as to how in the miscellaneous proceeding, the sale deed is held to be void.
5. Put up this matter as fresh on 9.10.2023.
6. Till the next date of listing, no coercive measures shall be taken by the authorities in respect to plot in question."
4. In compliance of the order dated 22.9.2023, instruction dated 10.10.2023 has been placed before the Court which is taken on record.
5. Mr. Abhishek Shukla, learned Additional Chief Standing Counsel for the State-respondents submitted that in respect to the State land, the forgery has been committed, as such, impugned order has been passed for declaring the sale deed as well as initiation of criminal proceeding against the person concerned. He further submitted that First Information Report under Sections 420, 467, 468, 471 and 121 has been registered against the person concerned in respect to the forgery committed by the authorities. He submitted that no interference is required in the matter and writ petition is liable to be dismissed.
6. In reply, Counsel for the petitioner submitted that sale deed cannot be held to be void in the miscellaneous proceeding or in any inquiry in administrative side. He further submitted that private dispute cannot be adjudicated in the administrative side. He submitted that similar controversy has already been entertained and the interim protection has been granted in Writ C No. 19315 of 2023. He further placed reliance upon the judgment of this Court passed in Writ C No. 1625 of 2004, Vijai Vs. State of U.P. and Others and Writ C No. 20102 of 2022, Vijay Kumar Varma Vs. U.P. Avas Evam Vikas Parishad Thru Chairman/ H.C. and 3 Others in order to demonstrate that private dispute cannot be settled in administrative side.
7. I have considered the arguments advanced by learned Counsel for the parties and perused the records.
8. There is no dispute about the fact that sale deed has been executed in respect to the plot in dispute in favour of the petitioner.
9. It is settled principle of law that sale deed, will deed or gift deed etc. cannot be cancelled in the administrative side or on the basis of miscellaneous application filed by the parties.
10. Division Bench of this Court in the case of Vijai (Supra) has held as under in Paragraph Nos. 25, 26 and 27 of the judgment:-
"25. From the aforesaid conspectus of the fact, it is evident that the situation of law and order that has arisen on the spot due to the dispute involving immovable property belonging to private individuals could have been easily avoided, had the respondent authorities observed restrained and guided themselves by the orders passed by this Court as well as the Government Orders.
26. In our Constitution, there is clear separation of judicial and executive powers. The civil disputes are to be decided by the Civil Court and unsuccessful litigant has a right to file an appeal. The Administrative Officials cannot enter into any such dispute in exercise of the power conferred on them under the provisions of Cr.P.C. and the Revenue Code to fill in the gap and pass executive orders which explicitly belongs to the realms of Civil Court or the revenue court respectively. The due process of law has to be followed in all respect and the executive authorities are not supposed to usurp the the power bestowed on the civil / revenue courts as it would not only be exercise of excessive jurisdiction not permissible under law but would also lead to overlapping jurisdiction which is against the tenets of the basic structure of our Constitution.
27. The present case is a glaring example of encroaching and over reaching the realm of the Civil Court on the part of the respondent-authorities. Although the respondent no. 2 has taken a stand that he was not aware of the pendency of the civil appeal, but the action of the respondent no. 2 even after submission of the reports by the revenue officials does not seem convincing to this Court from any angle. The authorities concerned ought not to have exercised administrative power for entering into the disputed property and issue order for delivery of possession etc against one or the other party. This primarily should be left to the competent court of civil jurisdiction."
11. Considering the ratio of law laid down by Division Bench of this Court, the impugned order dated 11.10.2022 passed by respondent no.2 on the misc. application dated 16.9.2022 declaring the petitioner's sale deed as void is liable to be set aside and the same is hereby set aside.
12. Writ petition stands allowed to the extant indicated above."
7. After hearing rival contentions of the parties, this court finds that earlier this court has vide aforesaid Writ-C 32471 of 2023 has clearly held that the document of title cannot be disputed or cancelled on the administrative side. Respondents ought to have availed remedy available before Civil/Revenue Court in this regard regarding the sale deed in dispute executed by the petitioner in favour of M/s Dkd Ikjot United Pvt. Ltd. Vs. State of U.P. and six others.
8. In view of the above, criminal proceedings initiated at the behest of respondent no.3 is not in accordance with law. The impugned first information report dated 12.10.2022 in case crime no.0481/2022 under Section 420, 467, 468, 471, 120B I.P.C, Police Station Dhaulana, District Hapur is hereby quashed.
9. Writ petition is, accordingly, allowed.
Order Date :- 09.05.2024
SS
(Surendra Singh-I,J.) (Siddharth,J.)
