Urmila Trivedi vs The State Of Jharkhand Through The ...
2022 Latest Caselaw 1657 Jhar

         IN THE HIGH COURT OF JHARKHAND AT RANCHI
                 (Letters Patent Appellate Jurisdiction)
                             L.P.A No. 110 of 2019

Urmila Trivedi w/o Bachan Kumar Trivedi, r/o New Barganda, PO-
Makatpur, PS-Nagar, District-Giridih                        ...... Appellant
                                      Versus
1. The State of Jharkhand through the Director General of Police having its
office at HEC Admin, Ranchi, Dhurwa, PO & PS-Dhurwa, Dist.-Ranchi
2. Superintendent of Police Giridih, PO & PS-Giridih, Dist.-Giridih
3.Sub-Divisional Police Officer Giridih, PO & PS-Giridih, Dist.-Giridih
                                                       .... ... Respondents

CORAM: HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR
        HON'BLE MR. JUSTICE RATNAKER BHENGRA

For the Appellant                    : Mr. Jitendra S. Singh, Advocate
                                       Mr. Abhijeet Kumar Singh, Advocate
For the State of Jharkhand           : Mr. Sachin Kumar, AAG-II
                                       Ms. Surabhi, AC to AAG-II
                                      ---------
                                   ORDER

26th April 2022

Per Shree Chandrashekhar, J.

The appellant has challenged the order dated 16th January 2019 passed in W.P(C) No. 5381 of 2018.

2. By the said order, the writ Court refused to interfere with the notice dated 15th October 2018 issued by the Sub-Divisional Police Officer, Dumri, Giridih on the ground that a wrong description of the immovable property in the order dated 17th July 2018 passed by the Director General and Inspector General of Police, Jharkhand would not vitiate the notice.

3. Urmila Trivedi who is the appellant before us was issued notice dated 15th October 2018 with instructions to vacate the premises within one week.

4. The notice dated 15th October 2018 reads as under:

uksfVl ftyk fxfjMhg] iz[kaM fxfjMhg vUrZxr ekStk fxfjMhg] (edriqj)] Fkkuk ua0 95 Fkkuk uxj fLFkr lEifr tks] [[email protected] ua0 52] [email protected] gksfYMx ua0 193 (B) dk jdck 06&[email protected] Mh0 tks eukst pkS/kjh is0 ca'kh pkS/kjh lk0 Hkkjrh pydjh Fkkuk ihjVkWM ftyk fxfjMhg ds uke ls vftZr gS] dks e/kqcu Fkkuk dk0la0 [email protected] rnuqlkj egkfuns'kd ,oa iqfyl egkfujh{kd >kj[k.M jkWph ds dk;kZy; Kkikad [email protected] fn0 17&07&18 ds vkyksd esa ;w0,0ih0 ,DV dh /kkjk 24 (,)@25 ds izko/kkuks ds vUrZxr vxys vkns'k rd

tIr fd;k tkuk gSA vr% vki lHkh dks vkns'k fn;k tkrk gS fd ,d lIrkg ds vUnj edku dks [kkyh dj nsaA [email protected]&[email protected]@18 (uhjt dqekj flag) vuqe.My iqfyl inkf/kdkjh Mqejh] fxfjMhgA

English Translation:

Notice The property under Khata/Thok No. 52, Plot/Holding No. 193 (B) measuring area 06-2/3 decimals situated under Thana No. 95, Mauza-Giridih (Makatpur), P.S.-Town, Block-Giridih, District-Giridih which is in the name of Manoj Choudhary, S/o Banshi Choudhary, R/o Bharti Chalkari, P.S.-Pirtand, District- Giridih is to be seized in view of Office Memo No. 2873/Abhi. dated 17.07.18 of the Director General and Inspector General of Police, Jharkhand, Ranchi in connection with Madhuban P.S. Case No. 04/18 under the provision of Section 24 (A)/25 of U.A.P. Act. Therefore, all of you are hereby ordered to vacate the house within one week.

Sd/-15/10/18 (Niraj Kumar Singh) Sub-Divisional Police Officer , Dumri, Giridih.

5. The notice dated 15th October 2018 was challenged by Urmila Trivedi by filing W.P(C) No.5381 of 2018.

6. Briefly stated, Urmila Trivedi wife of Bachan Kumar Trivedi resident of New Barganda under District-Giridih claimed right, title and interest over the lands admeasuring 5.14 decimals under Jamabandi No.52 in Mouza Makatpur, Thana No.95, Holding No.193 under Ward No.1 (Old) corresponding to Ward No.9 (New) within Giridih Municipality. The said piece of land was purchased by her through a registered sale-deed dated 18th June 2011 from Sushma Singh and on the basis of the sale-deed her name was recorded in the revenue records and she has been paying rent to the State. She further claimed that over a part of the said land a house has been constructed and she is paying house tax @ Rs.8,000/- per annum which was fixed vide Tax Fixation Suit No.336 and she has been paying taxes to the Giridih Municipality.

7. The writ Court referred to the provisions under sections 24-A and 25 of the Unlawful Activities (Prevention) Act, 1967 (in short, UAPA) and observed as under:

"6. It is evident from the provision as contained under Section 24-A which prohibits to hold or to be in possession of any proceeds of terrorism. Section 25 provides power of

Investigating Officer and designated authorities which provides that the Investigating Officer, if has reason to believe that any property in relation to which investigation is being conducted, represents proceeds of terrorism, he shall, with the prior approval in writing of the Director General of Police of the State in which such property is situated, make an order seizing such property and where it is not practicable to seize such property, and making an order of attachment directing that such property shall not be transferred or otherwise dealt with except with the prior permission of the Officer making such order, or of the designated authority before whom property seized or attached is produced and copy of such order shall be served on the person concerned. But before doing such, an opportunity of making a representation by the person whose property is being seized or attached shall be given."

8. On a glance at the provisions under section 25 of UAPA, it would be clear that with the prior approval in writing of the Director General of Police of the State in which the property sought to be confiscated or attached is situated the investigating officer can make an order of attachment directing that such property shall not be transferred or otherwise dealt with except with the prior permission of the officer making such order, or of the Designated Authority before whom the property was produced. It further would appear that the Director General of Police shall make an order in writing upon the investigating officer forming an opinion that the property in question is proceeds of terrorism in respect of which the investigation is being conducted and he has reasons to believe that the property was acquired from proceeds of the crime.

9. The order dated 15th October 2018 passed by the Director General of Police is in relation to 13 properties which are sought to be attached under section 25 of UAPA. The property at serial no.13 is comprised in "Plot No.153-B" and this property is recorded in the name of "Manoj Choudhary". However, the property comprised in "Holding No.193" which has been purchased by the appellant by a registered sale-deed was attached and sealed.

10. Section 59 of the Indian Evidence Act, 1872 provides that all facts except the contents of documents or electronic records may be proved by oral evidence. Obviously, the contents of a document cannot be proved or contradicted by oral evidence except to the extent of proving the said document. Section 61 provides that the contents of the documents may be proved either by primary or by secondary evidence and section 62 provides

that primary evidence means the document itself produced for the inspection of the Court. If at all it is the case of the State of Jharkhand that the order dated 17th July 2018 passed by the Director General of Police, Jharkhand contained a wrong description about the property purchased by Manoj Choudhary which appears at serial no.13 a modified order was required to be produced in the writ Court. Merely on the basis of the stand taken in the Court a contrary interpretation as regards description of the property at serial no.13 in the order dated 17th July 2018 could not have been drawn by the Court.

11. In "Thakur Barmha & Ors. v. Jiban Ram Marwari & Ors." (1913-14) 41 IA 38 the judgment debtor raised an objection to attachment of the property beyond mortgage. A sale proclamation was issued and after the auction the auction purchasers were issued a sale certificate describing the property bought by them in auction sale which was not included in the mortgage. The subordinate Court which granted the certificate observing that the intention as all parties knew was to sell the property not included in the mortgage and that was in fact the property sold and bought dismissed the suit which order was upheld by the High Court of Judicature at Fort William in Bengal.

12. Lord Moulton speaking for the Privy Council wrote thus:

"An attempt was made to treat the matter as a case of misdescription, which could be treated as a mere irregularity. But in this case we have to deal with identity and not description. A property fully identified in the schedule may be in some respects misdescribed, but that is not the present case. Here we find an existing property accurately described in the schedule, and the order of the Subordinate Judge grants a sale certificate which states that another and a different property has been purchased at the judicial sale. It was beyond the powers of the Court to make such an order, inasmuch as there was no power to sell in these judicial proceedings the property thus certified to have been purchased."

13. Strangely enough, the writ Court observed that after conducting an inquiry the investigating officer issued notice to the occupant on the ground of his involvement in the terrorist activities. This reference is about Manoj Choudhary and not the appellant whose association with any terrorist or involvement in any terrorist activity has not been brought on record. The writ Court committed further mistake in paragraph no.8 of the order dated 16th January 2019 to the extent that it records that the property in "Plot

No.153-B" which is recorded in the name of "Manoj Choudhary" has been purchased by the petitioner (appellant herein). This is not the case set up by the State of Jharkhand rather the apprehension of the investigating officer is that the property was purchased by Manoj Choudhary in the name of the appellant. The investigating officer has produced the records which reveal that no evidence was collected on this aspect and there is no material to indicate any kind of association of the appellant with Manoj Choudhary. We further find that the order passed by the Director General of Police records that the property comprised in "Plot No.153-B" was purchased in the name of "Manoj Choudhary" whereas the property which has been attached is comprised in Holding No.193 purchased by Urmila Trivedi from Sushma Singh. In our opinion, the writ Court committed an error in approving the impugned action of investigating officer on the basis of the order passed by the Director General of Police dated 17th July 2018.

14. Paragraph no.8 of the writ Court's order proceeds on the following lines:

"8. It is admitted case of the State-respondent that in the order passed by the Director General of Police dated 15.10.2018 there is reference of plot No.153-B which is said to be in the name of Manoj Choudhary from whom petitioner has purchased the property but it has been admitted that the premises of petitioner is situated under Plot No.193 but due to typographical error the record of plot No.153 has been made in the said order but herein sufficient evidence has been gathered by the Investigating Officer with respect to accumulation of proceeds obtained by way of proceeds of terrorism."

15. Now in the counter-affidavit dated 28th March 2022 filed in the present Letters Patent Appeal, the State of Jharkhand has produced a copy of the order dated 24th December 2018 which appears to have been issued to rectify the so-called mistake. In this order, at serial no.13 description of the property within Thana No.95, Jamabandi No.52, Holding No.193 within Giridih Town refers to have been purchased in the name of Manoj Choudhary which apparently is not factually correct. The appellant has produced a copy of the registered sale-deed dated 18 th June 2011 by which she purchased the lands comprised in Jamabandi No.52, Holding No.193 within Giridih Town from Sushma Singh whereas no material has been produced by the State of Jharkhand in support of the order dated 24 th December 2018 in relation to the property at serial no.13. Moreover, by the

said order any power in the investigating officer cannot be conferred with a retrospective date to validate the notice dated 15th October 2018.

16. In the above facts, we do not see any justification for attachment of the appellant's property and, accordingly, notice dated 15th October 2018 is quashed. The investigating officer, namely, Manoj Kumar, S.D.P.O, Dumri (Giridih), who is present in the Court, shall de-seal the premises and permit the appellant to take peaceful possession of the same.

17. L.P.A No.110 of 2019 stands allowed.

18. Consequently, I.A. No. 4696 of 2019 stands disposed of.

(Shree Chandrashekhar, J.)

(Ratnaker Bhengra, J.) Jharkhand High Court, Ranchi Dated :26th April 2022 R.K/sudhir/N.A.F.R