Jammu & Kashmir High Court
Kamal Singh vs Union Territory Of J&K And Another on 17 September, 2021
Sr. No. 97
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
CRM(M) 524/2021
CrlM(1694/2021)
Kamal Singh .... Petitioner(s)
Through:- Mr. K. Nirmal Kotwal, Advocate
v/s
Union Territory of J&K and another
..... Respondent(s)
Through:- Mr. Raman Sharma, AAG
Coram: HON'BLE MR. JUSTICE JAVED IQBAL WANI, JUDGE
ORDER
1. The petitioner in the instant petition has thrown challenge to the
order dated 21.08.2021 ( for brevity 'impugned order') passed by Additional
Special Judge, Anti Corruption, Jammu ( for brevity 'Appellate Court').
2. According to petitioner, a case was registered against one Mohd.
Bashir the then Tehsildar, Jammu on 07.05.2010 under FIR No. 15/2010 for
offences under Section 5(2) read with Section 5 (1) (e) of the J&K Prevention
of Corruption Act, Svt. 2006 ( for brevity, the 'P.C. Act') for possession of
disproportionate assets.
3. It is stated that the petitioner applied to the J&K Cooperative
Housing Corporation Limited, Srinagar for allotment of a plot of land situated
at Friends Enclave, Humhama, Srinagar (Kashmir) and consequently, was
allotted Plot No. 23 measuring 7023 Sqft.
2 CRM(M) 524/2021
4. According to petitioner, after registration of the case (supra), the
Vigilance Organization conducted a raid in the house belonging to the
petitioner situated at Friends Enclave, Humhama, Srinagar on 09.05.2010 and
sealed the said house of the petitioner on the ground that the house actually
belongs to Mohd. Bashir (Tehsildar) and was held on his behalf as benami in
the name of the petitioner.
5. According to petitioner, an order of attachment in respect of the
said house of the petitioner was issued by the respondents on 28.08.2010 and
same was confirmed by the Designated Authority on 05.10.2010. It is stated
that an appeal was filed against the confirmation order of the Designated
Authority before the Appellate Court under Section 8-C of the P.C. Act,
which appeal came to be allowed revoking the order of attachment by the said
Court in terms of order dated 06.01.2011, directing the release of the house.
6. It is further stated that the Vigilance Organization instead of
releasing the house filed a petition before this Court under Section 561-A
Cr.P.C against the order of the Appellate Court dated 06.01.2011, which
petition, however, came to be dismissed in terms of order dated 20.09.2013,
upholding the order of the appellate court.
7. According to petitioner, a Special Leave Petition was filed
against the judgment of this High Court dated 20.09.2013, which judgment
came to be set aside by the Apex Court in terms of order dated 24.03.2017,
directing the matter to be heard again by the Court on merits. It is further
being stated that the matter was again heard by the Appellate Court and was
decided on 16.11.2018, where under again the order of confirmation of the
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Designated Authority was set aside and the matter was remanded back for
fresh hearing by the Designated Authority.
8. According to learned counsel, petitioner appeared before the
Designated Authority and though a notice was issued to Mohd Bashir
(Tehsildar) as swell, but he did not choose to appear and the Designated
Authority passed an order dated 21.02.2019 confirming the attachment order
and same came to be challenged by the petitioner before the Appellate Court
in an appeal, which court decided the said appeal on 21.08.2021 and again, set
aside the order of Designated Authority and again remanded the matter back
to the designated authority for fresh hearing of the same.
9. According to the learned counsel the impugned order passed by
the Appellate Authority whereby though the order of confirmation passed by
the Designated Authority has been set aside, yet the Appellate Court
erroneously remanded back the matter to the Designated Authority for
rehearing of the same and in the process, declined to set aside the order of
attachment.
10. According to learned appearing counsel, there was no occasion
for the Appellate Court to remand back the matter again to the Designated
Authority in the peculiar facts and circumstances of the case for re-hearing of
the matter and decline to set aside the order of attachment/confirmation passed
by the respondent/Designated Authority.
11. According to learned counsel, repeated remand of the matter by
the Appellate Court to the Designated Authority is sheer abuse of process of
law and has caused serious prejudice to the rights of the petitioner, in that, the
subject matter of attachment is continuously under the lock and key of the
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vigilance organization for the last 10 years resulting into deterioration of its
condition, inasmuch as, the continuous attachment of the house in question
has been causing serious prejudice to the rights and interests of the petitioner,
more so, when the charge-sheet in the case has been filed and is subjudice
before the trial court and that the Designated Authority is not having any
further material in its possession after the presentation of the charge-sheet,
which would require rehearing and reconsideration of the matter.
Heard learned counsel for the petitioner and perused the
record.
12. Notice. Notice in CrlM as well returnable within three weeks.
Notice in CrlM as well returnable within the same period. Steps within one
week.
13. At this stage, Mr. Raman Sharma, learned AAG present, enters
appearance and accepts notice on behalf of the respondents. He, however,
resists and controverts the contentions raised by the counsel for the petitioner.
He would contend that the impugned order has not determined the merits of
the case, but has remanded the matter for reconsideration/rehearing by the
Designated Authority, as such, no prejudice per se can said to have been
caused to the petitioner.
14. The fact remains that the impugned order is third in series of
order of remand passed by the Appellate Court including the one passed by
the Apex Court. The fact also remains that the charge-sheet has been filed and
the house in question continues to be under attachment for the last more than
10 years. Prima facie, at this stage there seems to be substance in the
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submissions made by the learned counsel for the petitioner, entitling the
petitioner to an interim relief.
15. List on 20.10.2021. Meanwhile, objections.
16. In the meanwhile, subject to objections and till next date of
hearing, the operation of the impugned order dated 21.08.2021, shall remain
in abeyance.
17. Alteration/ modification on laying motion.
(JAVED IQBAL WANI)
JUDGE
Jammu
17.09.2021
Bir
BIR BAHADUR SINGH
2021.09.24 17:33
I am the author of this
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