Bombay High Court
Prakashkumar S/O Murlidhar ... vs State Of Maharashtra Thr. Dy. ... on 7 April, 2016
Bench: Z.A. Haq
Judgment 1 revn67.13.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL REVISION APPLICATION NO. 67 OF 2013
Prakash S/o. Murlidhar Bhishikar,
Aged about 70 years, Occupation : Retired,
Resident of Plot No.260, "Parmanand", West
High Court Road, Nagpur.
.... APPLICANT.
// VERSUS //
State of Maharashtra, through
Deputy Superintendent of Police,
Anti Corruption Bureau, Buldana.
.... NON-APPLICANT
.
______________________________________________________________
Shri S.S.Voditel, Advocate for Applicant.
Shri S.S.Doifode, A.P.P. for Non-applicant.
______________________________________________________________
CORAM : Z.A.HAQ, J.
DATED : APRIL 07, 2016.
ORAL JUDGMENT :
1. Heard learned advocates for the respective parties.
2. RULE. Rule made returnable forthwith.
Judgment 2 revn67.13.odt
3. The applicant has filed this revision application
challenging the order passed by the Special Judge rejecting the
application filed by the applicant praying that he be discharged from
the prosecution for the offences punishable under Sections 465, 466,
471, 477A, 120B and 109 r/w 34 of the Indian Penal Code and for the
offence under Section 13(1)(d) punishable under Section 13(2) of the
Prevention of Corruption Act, 1988.
4. The relevant facts are as follows :
The applicant was posted as Collector, Buldana from 1993
till 1996. On 2nd July, 1990 Malkapur Education Society, Malkapur
had submitted an application to the office of the Sub-Divisional Officer,
Malkapur and Tahsildar, Motala requesting that the land admeasuring
0.74 hectare, situated adjacent to the property of the society, be allotted
to it for use as playground. The then Naib Tahsildar processed the
application, conducted enquiry and after receipt of report of Talathi,
Motala and grant of no objection by Gram Panchayat, Motala submitted
report to the Sub-Divisional Officer, Malkapur. The then Sub-Divisional
Officer endorsed his note and forwarded the proposal to Collector,
Buldana. The proposal was examined by the then Resident Deputy
Collector, Buldana and it was forwarded to Collector, Buldana. The
Judgment 3 revn67.13.odt
applicant, who was Collector, Buldana at that time scrutinized the
record submitted to him and considering the provisions of the
Maharashtra Land Revenue (Disposal of Government Lands) Rules,
1971 allotted the land by the order dated 27th September, 1993 to the
Malkapur Education Society for its use as playground, for the period of
15 years on nominal rent of Re.1/- per year.
The case of the non-applicant / State of Maharashtra is
that the concerned land was taken over by the Ministry of Defence by
the communication dated 20th June, 1950 and therefore, the land
belonged to the Central Government and the applicant in his capacity
as Collector, Buldana could not have allotted the land on lease.
According to the non-applicant, the allotment of land on nominal lease
amount of Re.1/- per year has resulted in financial loss to the State
Government. On the above allegations the prosecution is launched
against the applicant for the offences punishable under Sections 465,
466, 471, 477A and 109 of the Indian Penal Code and for the offence
under Section 13(1)(d) punishable under Section 13(2) of the
Prevention of Corruption Act, 1988. The applicant filed an application
(Exh.70) under Section 227 of the Code of Criminal Procedure praying
for discharge. This application is rejected by the impugned order.
Judgment 4 revn67.13.odt
5. The learned advocate for the applicant has pointed out
that the entries in 7/12 extract showed the land as "F" class belonging
to the State Government. According to the applicant, the old record of
rights showing that the land belong to Ministry of Defence,
Government of India was not part of the record placed before him
along with the proposal of Malkapur Education Society. According to
the applicant, he acted as per the established practice of the Revenue
Department and relied on the entries of 7/12 extract while considering
the proposal of Malkapur Education Society. The learned advocate for
the applicant has referred to Rule 7 of the Maharashtra Land Revenue
(Disposal of Government Lands) Rules, 1971 and has submitted that
the applicant has acted in consonance with the above referred Rule and
had granted lease of the land to the education institution for 15 years
for using the land as playground, on nominal rent of Re.1/- per year.
The learned advocate for the applicant has pointed out that Malkapur
Education Society had submitted the application for allotment of land
on 4th September, 1973, 8th August, 1980 and 2nd July, 1990 and the
Gram Panchayat had passed resolution in favour of the Society on 29th
November, 1990 and the accused No.4-R.S. Narkhede was posted as
Naib Tahsildar, Motala from 19th December, 1989 till 30th April, 1992
and the applicant was posted as Collector, Buldana from 29th May,
Judgment 5 revn67.13.odt
1993 and the order of allotment of the land was issued on 27th
September, 1993 and in view of these facts, it cannot be said that there
could have been any criminal conspiracy by the applicant and R.S.
Narkhede-accused No.4 regarding allotment of land to Malkapur
Education Society. It is submitted that the prosecution has not been
able to show that the ingredients of offences alleged to have been
committed by the applicant exist so as to continue the prosecution
against the applicant.
Shri S.S. Voditel, advocate has emphasized on the fact that
though it is alleged that the allotment of the land on lease of 15 years
on nominal rent of Re.1/- per year has resulted in substantial financial
loss to the State Government, the Government of Maharashtra did not
take any steps to revoke the order of allotment of land and though the
period of 15 years of lease came to an end in 2008, the land continued
with the society till filing of the present application in 2013. It is
argued that in these facts, it cannot be said that any loss is caused to
the State Government because of the order issued by the applicant. It
is further submitted that the applicant has issued order allotting the
land on lease, in discharge of his official duties and even if some error
is committed while issuing the order, it cannot be said that the
Judgment 6 revn67.13.odt
applicant has committed the offence.
It is prayed that the impugned order be set aside and
application (Exh.70) filed by the applicant be allowed and the
applicant be discharged from the prosecution for the offences
punishable under Sections 465, 466, 471, 477A and 109 of the Indian
Penal Code and for the offence under Section 13(1)(d) punishable
under Section 13(2) of the Prevention of Corruption Act, 1988.
6. The learned Additional Public Prosecutor has submitted
that the revenue record showed that the land in question was of "F"
class and the Gram Panchayat, Motala had no concern with the land
and therefore, the resolution passed by the Gram Panchayat, Motala in
favour of the society, was irrelevant. It is submitted that the record of
rights showed that the concerned land belong to Ministry of Defence,
Government of India and was reserved for camping ground of defence.
It is submitted that the entry to this effect is also taken in 7/12 extract
of the concerned land. The learned APP has submitted that Shri V.K.
Date, earlier Collector Buldana had endorsed his remarks on the file
that the concerned land is reserved for camping ground for military
purposes. It is submitted that the applicant misused his authority and
Judgment 7 revn67.13.odt
issued illegal order allotting the land to the society which has caused
substantial loss to the State Government. It is submitted that there is
sufficient material on the record to prosecute the applicant and the
learned Special Judge has rightly considered all the aspects and
rejected the application (Exh.70). It is submitted that the impugned
order is proper and does not require interference.
7.
The learned advocate for the applicant has submitted that the
fallacy in the submission of the non-applicant is patent on record. The
non-applicant alleges that the concerned land belongs to the Ministry of
Defence, Government of India. It is not understood as to how the State
Government can allege that the allotment of land on lease for 15 years
has resulted in huge financial loss to the State Government. It is prayed
that the revision application be dismissed.
8. It is the specific case of the applicant that he has issued the
order of allotment of the land in discharge of his official duties, after
scrutinizing the documents placed on the record and the 7/12 extract
which did not show that the land belong to the Ministry of Defence,
Government of India. Though it is submitted on behalf of the non-
applicant that the entry has been taken in the 7/12 extract of the
Judgment 8 revn67.13.odt
concerned land that it is reserved for camping ground of defence, it is
not pointed out when the entry is taken. The applicant has stated that
7/12 extracts of 1980 and 1990 showed that the concerned land
belonged to the State Government. Except for the contention that the
entry is taken in 7/12 extract showing that the concerned land is
reserved for camping ground for defence, there is nothing on the record
to show that the documents placed before the applicant at the time
when he issued order of allotment of the land contained 7/12 extract
showing entry that the land was reserved for camping purposes by the
defence.
9. The allegation that allotment of land on lease on nominal
rent of Re.1/- per year has resulted in huge financial loss to the State
Government, cannot be accepted as rule 7 of the Maharashtra Land
Revenue (Disposal of Government Lands) Rules, 1971 provides for
grant of lease for playground to education institutions for 15 years on
nominal rent of Re.1/- per year. Moreover, if at all the allotment made
by the applicant was illegal, superior authorities and the State
Government could have revoked the order of allotment. It goes
unexplained as to why the allotment was not cancelled. Not only this,
the applicant has stated on oath that though the allotment of land was
Judgment 9 revn67.13.odt
till 2008 the land continued to be in possession of the education society
till 2013 and this is not controverted by the non-applicant. Further, I
find, that the submission made on behalf of the non-applicant that the
allotment of land on nominal rent of Re.1/- per year has resulted in
huge loss to the State Government is fallacious. It is the contention of
the non-applicant that the concerned land belong to Ministry of
Defence, Government of India. In the background of this contention,
how it can be said that the allotment of land on nominal rent of Re.1/-
per year has resulted in huge loss to State Government. In these
circumstances, it is difficult to accept the contention of the non-
applicant that huge financial loss is caused to the State Government
because of the allotment of the land on nominal rent of Re.1/- per year.
10. The learned Special Judge has not adverted to the relevant
aspects, specially as to whether the accusations made against the
applicant make out the offences for which he is being prosecuted. The
learned Special Judge has observed that the prosecution alleges that
the applicant has acted dishonestly while taking decision, has followed
corrupt practices and has caused wrongful loss to the State Government
and these aspects cannot be considered unless the evidence is recorded.
The learned Special Judge has observed that the prosecution has
Judgment 10 revn67.13.odt
adduced sufficient oral and documentary evidence on record, which
make out prima-facie case and therefore, the applicant cannot be
discharged. With the above general observations, the application is
rejected by the learned Special Judge. I find that the learned Special
Judge has not considered the matter in the right perspective and has
not adverted to the relevant aspects.
11. In my view, the prosecution has failed to establish that the
ingredients necessary to prosecute the applicant for the offences
punishable under Sections 465, 466, 471, 477A and 109 of the Indian
Penal Code and for the offence under Section 13(1)(d) punishable
under Section 13(2) of the Prevention of Corruption Act, 1988 exist.
Therefore, the prosecution against the applicant for the above offences
cannot be continued and he has to be discharged from the prosecution.
12. Hence, the following order :
i) The order passed by the learned Special Judge in Special
(ACB) Case No. 2 of 2003 on application (Exh.70) on 25th
September, 2012 is set aside.
Judgment 11 revn67.13.odt
ii) The application (Exh.70) filed by the applicant is allowed.
iii) The applicant is discharged from the Special (ACB) Case
No. 2 of 2003, pending before the Special Judge, Buldana.
iv) Rule is made absolute in the above terms.
v) In the circumstances, the parties to bear their own costs.
ig JUDGE
RRaut..
