Jammu & Kashmir High Court
Brij Bhushan Aged 75 Years vs Union Territory Of Jammu And ... on 29 May, 2023
Sr.No. 4
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
CRM(M) No. 410/2021
Reserved on:15.03.2023
Pronounced on:29.05.2023
Brij Bhushan aged 75 years S/O Shiv Ram R/O .....Petitioner(s)
Shiv Enclave Sidhra Jammu.
Through:- Sh. Amarvir Singh Manhas, Advocate.
V/S
Union Territory of Jammu and Kashmir through ......Respondent(s)
Incharge P/S Anti-Corruption Bureau Jammu.
Through:-Ms. Monika Kohli, Sr. AAG,
Inspector Ravi Singh Parihar,
is present in person.
CORAM: HON'BLE MR. JUSTICE MOHAN LAL , JUDGE
JUDGMENT
1. Petitioner by invoking the Inherent Powers Jurisdiction of this court under
the provisions of section 482 of the Code of Criminal Procedure (hereinafter
referred as the 'Code') has sought the quashment of FIR No. 10/2021
registered against him by the respondents for commission of offences
punishable under sections 5(2) of the J&K Prevention of Corruption Act
2006 r/w Section 120-B IPC on the following grounds:-
(i) that petitioner is a senior citizen having retired on June 2006 as Managing
Director of the J&K Co-Operative Housing Corporation Ltd. (formally
known as J&K Co-operative Housing Federation) after having rendered
service of more than 24 years;
(ii) that the J&K Co-Operative Housing Corporation Ltd. (JKCHC) is governed
by the J&K Co-operative societies Act and the rules made there under and
the management is regulated by its by-laws registered with the Registrar
Co-operative Societies J&K and its aims and objects are to acquire land for
developing into residential colonies for its members being the apex society
of the UT;
(iii) that pursuant to the said objectives a big chunk of land was proposed to be
acquired in the year 1988 at village Sidhra then Tehsil Samba (now Jammu)
including Kh. No. 6 min measuring 30 kanals and 05 marlas and
accordingly the Collector Land Acquisition was approached for verification
of rate of land in the said village;
(iv) that the collector after due certification had certified that the existing rate of
the land in village Sidhra was ₹ 40,000/- per kanal as per his
communication dated 01-12-1998;
(v) that after having negotiated with the landlords the rate was settled at ₹
31,500/- per kanal and the lease deed dated 10-04-1989 was accordingly
registered with Sub-Registrar Samba;
(vi) that the land after having been leased out in favour of the corporation was
devolped into various plots and further leased out to the members of the
organization on first come first serve basis;
(vii) that after more than 30 years the respondent conducted a verification into
the allegation that 30 kanals and 05 marlas of state land comprising of Kh.
06 min of village Sidhra has been illegally transferred to the JKCHC in
violation of Agrarian Reforms Act 1976 and therefore a case of
misconduct and conspiracy was registered against the petitioner and two
others vide FIR No. 10/2021 registered u/s 5(1)(d) r/w 5(2) of the J&K PC
Act 2006 and section 120-B RPC;
(viii) that the view point of the respondent that the land in question was state land
can‟t be sustained when a look is had at the FIR itself, the land having
vested in the owners namely Sarwar Ali and others u/s 8 of the Agrarian
Reforms Act 1976 vide mutation No9. 479 dated 22.09.1987 of village
Sidhra;
(ix) that the petitioner is unable to understand as to how the land in question
could be termed state land and transfer of the same attracted the provision
of section 28(1) (b) of the Agrarian Reforms Act 1976 when already the
proprietary rights stood conferred upon said Sarwar Ali and other vide
mutation referred above;
(x) that even if it is presumed for the sake of arguments that the provision of
Agrarian Reforms Act 1976 were violated as claimed by the respondent,
even then no penal provision can be pressed into service as violation of
section 28& 28-A of Agrarian Reforms Act 1976 does not constitute any
offence;
(xi) that also no criminal misconduct can be attributed to the petitioner as the
rate of the land recommended by the collector was to the tune of ₹ 40000/-
per kanal whereas the corporation had acquired the land @ ₹ 31500/- per
kanal;
(xii) that according to the petitioner no offence has been committed by him, but
still he has been booked in the said FIR contrary to the express provisions
of law, there was no bar regarding the transfer of the land in question on
lease basis, and had there been any such ban the revenue agencies couldn‟t
have issued the necessary documents for registration and the registering
authority would have also refused the registration being a judicial officer;
(xiii) that even the legal advisor of the petitioner‟s corporation after perusal of
the revenue record had opined that the owners having proprietorship rights
u/s 8 of Agrarian Reforms Act were competent to lease out the land and
moreso the provisions of Agrarian Reforms Act 1976 reveal that no offence
is made out against the petitioner.
2. Respondent/ACB through SSP Anti-Corruption Bureau Jammu has submitted
the objections to the petition contending therein, that FIR No. 10/2021 P/S
ACB has been registered against the petitioner after due verification
conducted by Anti-Corruption Bureau into the allegations that 30 kanals 05
marlas of state land situated at Sidhra Jammu has been leased by revenue
officials/officers to petitioner Brij Bhushan the then chairman J&K Co-
operative Housing Federation, thereby, causing huge loss to the State
Exchequer. It is contended, that one Pukha Ram @ Bukha Ram S/O Manghtu
Lohar was recorded as owner of land measuring 30 kanals 5 marlas falling
under Kh. No. 6 min in village Sidhra, the ownership rights of said Pukha
Ram in regard to the said piece of land got extinguished and vested in state
u/s 4 of Agrarian Reforms Act 1976 vide mutation No. 476 and the same
were further vested in the names of 7 persons u/s 8 of J&K Agrarian
Reforms Act 1976 vide mutation No. 479 dated 22-09-1987 in the proportion
of land as, (i) Sarwar Ali S/O Kaka =4 kanals, (ii) Saraj Din S/O Qasim Din
= 6 Kanals, (iii) Barkat Ali S/O Billu = 4 Kanals, (iv) Kasim Din S/O Taj Din
= 4 kanals, (v) Chaman Lal S/O Mela Ram = 4 Kanals, (vi) Mohd Jafar S/O
Hassan Din =6 kanals & (vii) Ghulam Nabi S/O Bhimbru =2 kanals 5 marals.
It is stated, that during verification it surfaced that the above named persons
executed power of attorney dated 05-09-1989 jointly appointing one Nazir
Ahmed S/O Ghulam Nabi R/O Sidhra Tehsil Jammu erstwhile Tehsil Samba
as their attorney in respect of their rights over the respective shares in the
aforesaid land and despite knowing the fact that any sought of transfer of
such kind of land was clearly prohibited, the then Patwari Halqa Ban Bajaj
(erstwhile Tehsil Samba) namely Nazir Ahmed and then Tehsildar Samba
Balwant Raj hatched a criminal conspiracy among themselves as well as with
the beneficiaries just to transfer the state land to J&K Co-operative Housing
Federation in league with then Managing Director of the Housing Federation
namely Sh. Brij Bhushan, whereby a fard Intikhab dated 06-04-1989 was
issued in respect of aforesaid 30 kanals 05 marlas of land in favour of
attorney holder Nazir Ahmed (now expired) and the same was attested by
then Tehsildar Samba Sh. Balwant Raj without getting it checked and
verified through concerned Girdwar and Naib Tehsildar, on the basis of said
Fard Intikhab, 30 Kanals 05 marlas of land was leased out illegally to J&K
Cooperative Housing Federation (now J&K Cooperative Housing
Corporation Ltd.) vide lease deed dated 10-04-1989 through then Managing
Director Sh. Brij Bhushan in brazen violations to sec. 28(1) (b) and 28-A of
J&K Agrarian Reforms Act 1976, whereby conferring huge undue benefit
upon the beneficiaries and corresponding loss to the state exchequer. It is
contended, that the aforesaid land measuring 30 kanal and 05 marlas situated
at Sidhra Jammu was leased out illegally by the revenue officials/officers in
connivance with the petitioner and attorney holder Nazir Ahmed, the said
land was transferred in favour of the prospective owners u/s 8 of J&K
Agrarian Reforms Act 1976 for their personal cultivation, further there was a
clear prohibition for sale or other transfer of the same to any other person,
despite of prohibition for sale and transfer of aforesaid land u/s 28 and 28-A
of J&K Agrarian Reforms Act, the revenue officials in connivance with the
petitioner and land owners, by abuse of their official position issued fard
intikhab and after execution of lease deed mutated the said land in favour of
J&K Cooperative Housing Federation Jammu, the investigation of the instant
case is at its initial stage and the same is in progress.
3. Ld. Counsel for petitioner while seeking the quashment of FIR No. 10/2021
registered against the petitioner by the respondents for commission of
offences punishable u/ss 5(2) of J&K Prevention of Corruption Act 2006 r/w
Section 120-B, IPC has vehemently canvassed arguments, that Collector
Land Acquisition Jammu was approached for verification of rate of land in
village Sidhra comprised in Khasra No.6 min measuring 30 kanals 5 marals
who after due verification fixed the rates of the land as settled with the land
owners at ₹ 31500 per kanal, whereby, the said land was legally transferred
to JKCHC. It is argued, that the land in question could not be termed state
land, and even if it is presumed that provisions of Agrarian Reforms Act
1976 have been violated, even then no penal consequences can be pressed
into service as violation of Section 28 & 28-A of Agrarian Reforms Act 1976
do not constitute any offence, and the remedy provided is, that after
providing opportunity of being heard of the person who has contravened the
provision, he shall be dispossessed of such land by any revenue officer not
below the rank of Tehsildar and the land shall vest in State, no offence has
been committed by the petitioner as there is no bar regarding transfer of land
in question on lease basis, the revenue documents for lease deed have been
issued by the revenue agencies and had there been any ban the registering
authority would not have registered the leased deed. To support his
arguments, Ld. Counsel for petitioner has relied upon the judgments reported
in (i) 2017(1) JKJ HC 96 [Mohd Akbar Shah & Ors. Versus State & Ors.] &
(ii) JKJ Online 63959 [Pawan Kumar Kohli & Anr. Versus State of J&K].
4. Ld. Counsel for respondent, per-contra, has sought the dismissal of the
petition by strenuously articulating arguments, that land measuring 30 kanal
and 05 marlas situated at Sidhra Jammu which was transferred in favour of
the prospective owners u/s 8 of J&K Agrarian Reforms Act 1976 for their
personal cultivation was illegally leased out by the revenue officials/officers
in connivance with the petitioner and attorney holder Nazir Ahmed as there
was a clear prohibition for sale or other transfer of the same to any other
person. It is argued, that despite of prohibition for sale and transfer of
aforesaid land u/s 28 and 28-A of J&K Agrarian Reforms Act 1976, the
revenue officials in connivance with the petitioner and land owners by abuse
of their official position issued fard intikhab, and after execution of lease
deed mutated the said land in favour of J&K Cooperative Housing
Federation Jammu which is offence committed by the petitioner and other
revenue officials under the provisions of 5(2) of J&K Prevention of
Corruption Act 2006 r/w Section 120-B, IPC.
5. I have heard Ld. Counsel for petitioner and Ld. Sr. AAG for respondent. I
have perused the averments of the petition, objections filed by respondent,
gone through the relevant law on the subject matter meticulously and have
also scanned the ratios of judgments relied by Ld. Counsel for petitioner.
6. It is pertinent to mention here, that The Jammu & Kashmir Agrarian Reforms
Act 1976 came into effect enforced by SRO 295 dated 13th July 1978, w.e.f.
1st June 1978. Chapter-IV deals with SUPPLEMENTAL PROVISIONS.
Sections 28, 28-A & 29 of Chapter-IV deal with the provisions of "Rights &
Liabilities of Prospective Owner", "Prohibition on Transfer of Certain
Lands" & "Indemnity", respectively. For the sake of brevity, sections 28,28-
A & 29 are reproduced hereunder:-
28. Rights and liabilities of prospective owner
(1) Notwithstanding anything contained in any law--
(a) a prospective owner of land eligible by or under this Act to acquire ownership
rights in land under his personal cultivation shall continue to have all rights and be
subject to all liabilities (including the payment to the 1[Union territory of Jammu
and Kashmir] of the rent which was payable by him to the ex-landlord before the
commencement of the Jammu and Kashmir Agrarian Reforms Act, 1972) as a
tenant under the Jammu and Kashmir Tenancy Act. 1980, until he is vested with
ownership rights in such land :
Provided that he shall be governed by the rules of succession applicable to
occupancy tenants until he becomes owner of such land ;
(b) no prospective owner of land shall, 2[save as otherwise provided in the
proviso to clause (a) or in this clause] transfer his rights in such land by sale,
gift, exchange, mortgage, will or by any other means whatsoever, and any
transfer of such rights made after the first day of May, 1973 shall be null and
void and such rights shall vest in the State and such prospective owner and
his transferee shall, after being given an opportunity of being heard be
dispossessed of such land by a Revenue Officer 2[x x x x] :
[Provided that a prospective owner shall have the right to transfer land in the form
of simple mortgage subject to the provisions of the Alienation of Land Act, for
securing loan to liquidate the amount of levy payable by him under this Act ; and]
(c) no document purporting to effect transfer by a prospective owner of his rights in
land shall be admitted to registration,
[except in respect of transfers effected under the proviso to clause (b) of this
section.]
28-A. Prohibition on transfer of certain lands
(1) No person who is vested with ownership rights in land under this Act, shall
transfer such land or rights therein in any manner whatsoever to any person other
than the Government of Jammu and Kashmir:
Provided that such owner shall have the right to transfer land in the form of
simple mortgage subject to the provisions of the Alienation of Land Act, Samvat
1995 for securing loan for purposes of improvement of the land.
(2) Any transfer of land or rights therein made in contravention of sub-section
(1) shall be null and void. The person who has contravened the provisions of
sub-section (1) shall after being given an opportunity of being heard, be
dispossessed of such land by a Revenue Officer not below the rank of
Tehsildar and the land shall vest in the State and shall be disposed of in
accordance with the provisions of section 15.]
29. Indemnity.-No suit or other legal proceeding shall lie against any officer or
authority in respect of anything which is in good faith done or intended to be done
under this Act.
7. Cursory glance of provisions of sections 28,28-A & 29 aforesaid, make the
legal proposition manifestly clear, "that any transfer of land or rights in
contravention of the provisions of the Act shall be „null and void‟ and the
person who has contravened the provisions, after giving opportunity of being
heard, shall be dispossessed of such land which shall vest in the State, and no
suit or other legal proceedings shall lie against any officer or authority in
respect of anything done by him in good faith under this Act". In 2017(1)
JKJ HC 96 [Mohd Akbar Shah & Ors. Versus State & Ors.] relied by Ld.
Counsel for petitioner, a Coordinate Bench of this court has held, that the
condition of seeking previous permission of the Govt. for alienation of land
which was given for agriculture purposes in terms of para 4 of order of 1966
(which was based on council decision No. 619 of 4 th April, 1966, whereby,
occupancy tenant was authorized to transfer his right of occupancy by sale,
mortgage or gift) will not effect right of the owner of the land to alienate the
same. In JKJ Online 63959 [Pawan Kumar Kohli & Anr. Versus State of
J&K] also relied by Ld. Counsel for petitioner, a Coordinate Bench of this
Court quashed FIR No. 7/2016 dated 08-03-2016 registered at Police Station
Vigilance Origination Jammu against petitioners for commission of offences
punishable u/ss 5(1) (d) r/w Section 5(2) of the J&K PC Act r/w Sections
468, 471 & 120-B RPC for the reasons, that the basic order of custodian
dated 27-05-2011 vide which he set aside the mutation No. 288 dated 20-04-
2001 attested under section 3-A of Agrarian Reforms Act by Tehsildar/
Assistant Custodian Bishnah (Jammu) on the basis of which FIR was
registered against petitioners, was set aside by J&K Special Tribunal vide his
order dated 28-03-2018 holding that the custodian/PRO had power to be
exercised only under EP (Evacuees Administration of Property) Act 2006 and
rules, but had absolutely no jurisdiction to pass any order under Agrarian
Reforms Act. Ratio decidendi of the judgments (Supra) and the provisions of
sections 28,28-A & 29 of Agrarian Reforms Act clearly mandate, that no
legal proceedings can lie against any officer or authority and the only legal
recourse as mandated under Sub-section 2 of Section 28-A is, that any
transfer of land or rights therein in contravention of the provisions of the Act
shall be null and void, and the person in possession of the said land shall be
dispossessed by a revenue officer not below the rank of Tehsildar and the
said land shall vest in the State. Ratios of the judgments (Supra) and the
provisions of law engrafted in Sections 28,28-A & 29 of Agrarian Reforms
Act aforesaid squarely apply to the facts of the case in hand. In the case in
hand, even if it is presumed that the petitioner alongwith revenue officials
have got the land measuring 30 kanals 5 marals falling under Khasra no. 6
min situated in village Sidhra Jammu transferred in favour of J&K Co-
operative Housing Federation in contravention of the provisions of Section
28 r/w Section 28-A, the said transfer of land shall be null and void and the
person/persons shall after being given opportunity of being heard be
dispossessed of the said land which shall vest in the State (UT of J&K) and
moreso, no proceedings much less any criminal proceedings as mandated u/s
29 shall be entail against the petitioner and other officials.
8. For the forgoing reasons and discussion, petition in hand succeeds and the
same is allowed. Consequently, FIR No. 10/2021 for commission of offences
punishable u/ss 5(2) of J&K Prevention of Corruption Act r/w Section 120-B
IPC, registered qua the petitioner and consequent proceedings arising thereof,
stand quashed.
9. Disposed off accordingly.
SRINAGAR: (MOHAN LAL)
29.05.2023 JUDGE
Issaq
Whether the order is speaking? Yes/No
Whether the order is reportable? Yes/No
