Rajasthan High Court - Jodhpur

Harish Chandra Bunkar Balai vs The Board Of Revenue Ajmer And Ors on 24 May, 2023

Bench: Nupur Bhati

[2023/RJJD/015864]

      HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                       JODHPUR
                 S.B. Civil Writ Petition No. 1976/2015

Harish Chandra Bunkar (Balai) S/o Shri Ratan Lal Balai, aged
about 40 years, Resident of Village Semalia, Post & Tehsil Gadi,
District Banswara (Rajasthan).
                                                                    ----Petitioner
                                     Versus
1. The Board of Revenue, Ajmer, through its Registrar, Ajmer.
2. District Collector, Banswara.
3. Divisional Commissioner, Udaipur.
                                                                  ----Respondent


For Petitioner(s)          :     Mr. C.S. Kotwani with
                                 Mr. Kanishk Singhvi
For Respondent(s)          :     Mr. R.D. Bhadu
                                 Mr. Anil Kumar



               HON'BLE DR. JUSTICE NUPUR BHATI

                               JUDGMENT

Reserved on          : 17/05/2023
Pronounced on : 24/05/2023

(1) The present writ petition has been filed under Article 226 of

the Constitution of India with the following prayers:-

"It is therefore, respectfully prayed that this writ petition may kindly be allowed and by an appropriate writ, order or direction, the impugned order dated 28.01.2015 Annex. 1, may kindly be declared illegal and be accordingly quashed and set aside.

Any other relief to which petitioner appears entitle to may kindly be also be passed in favour of the petitioner."

(2) The facts in brief are that a complaint came to be filed by

one Shri Rakesh Damore in ACB Outpost Dungarpur against the

petitioner, while he was holding the post of Patwari, accusing him

[2023/RJJD/015864] (2 of 10) [CW-1976/2015]

that he demanded bribe of Rs.15,000/- on the basis of which, an

FIR (Annexure-2) came to be registered against him by ACB on

28.02.2014. While investigation was going on under the said FIR,

the petitioner was promoted to the post of Inspector (Land

Records) and at present, he is discharging his duties on the post

of Additional Office Quanungo.

(3) After the investigation, a decision was taken to file challan

against the petitioner for the offences punishable under Sections

7, 13(1)(d) and 13(2) of the Prevention of Corruption Act

(hereinafter referred to as 'the Act of 1988') and thus, a request

was made to the respondent No.2-District Collector, Banswara to

grant prosecution sanction.

(4) The respondent No.2-District Collector, Banswara reached to

the conclusion that since the appointing authority of the petitioner

is the Board of Revenue and referred the same to the Board of

Revenue. The Board of Revenue, however, sent back the matter to

the respondent No.2 to take action on his own level. The petitioner

was thereafter accorded opportunity of personal hearing and was

directed to remain present before the respondent No.2 on

20.06.2013, on which date, the Investigating Officer was also

present. After hearing the petitioner and the Investigating Officer,

the respondent No.2 took the decision to grant prosecution

sanction against the petitioner vide order dated 27.01.2015 and

passed detailed order on 28.01.2015 (Annex.1), which has been

passed in utter violation of the provision of Section 19 of the Act

of 1988. Hence, this petition.

[2023/RJJD/015864] (3 of 10) [CW-1976/2015]

(5) Learned counsel for the petitioner firstly submitted that from

the perusal of order Annex.3, it is clear that the Board of Revenue

has promoted the petitioner to the post of Inspector (Land

Records) and, therefore, for the purpose of Section 19(1)(b) of the

Act of 1988, the respondent No.3 - Board of Revenue was the

competent to grant the prosecution sanction, whereas prosecution

sanction has been granted by the District Collector.

(6) Learned counsel for the petitioner further submitted that the

appointment to the post of Inspector (Land Records) is governed

by Section 33 of the Land Revenue Act, 1956 (hereinafter referred

to as 'the Act of 1956'), which reads as under:-

"33. Appointment of Girdawar Qanungos or Land Records Inspectors- Subject to rules made under this Act, the Collector shall appoint to each land records inspection circle, a Girdawar Qanungo or Land Record Inspector for the proper Supervision, maintenance and correction of the annual registers and records under Chapter VII."

(7) Learned counsel also referred to Rule 171 of the Rajasthan

Land Revenue (Land Records) Rules, 1957 (hereinafter referred to

as 'the Rules of 1957') and submitted that the Divisional

Commissioner is the is the appointing authority of the Inspector

(Land Records) and District Collector has no authority to grant

prosecution sanction. Rule 171 of the Rules of 1957 provides as

under:-

"171. Appointment. As per procedure laid down in rules 284 and 301 of these rules the Commissioner of the Division shall select candidates for training of Inspector Land Records. The Commissioner of the Division shall maintain a list of those candidates who have received training and obtained. Diploma when there is a substantive vacancy in the cadre of Inspector Land Records or a

[2023/RJJD/015864] (4 of 10) [CW-1976/2015]

vacancy which is likely to become substantive, the Collector shall, for the purpose, send a requisition to the Commissioner of the Division. The Commissioner of the Division shall then make allotment of the senior most person/them as Inspector Land Records."

(8) Learned counsel for the petitioner, while referring the order-

sheets (Annex.5), submitted that the respondent No.2-District

Collector took the decision to grant prosecution sanction on

27.01.2015 which is a non-speaking and unreasoned order and

without any application of mind to the facts involved in the case.

It was submitted that a release-deed was executed by one Shri Lal

Ji in favour of Shri Hakru and mutation was opened by the

petitioner in performance of his duties as Patwari on or before

12.06.2013. Thereafter, The revenue inspector made his

endorsement on 17.06.2013, which was approved by the Tehsildar

concerned on 18.06.2013 and certified copies of the Jamabandi

and mutation entry were made available to the complainant on

18.06.2013 itself whereon signatures of the complainant are

available. Thus, by no stretch of imagination, it could have been

inferred that the petitioner demanded any bribe. But, the

respondent No.2 - District Collector, without considering those

facts, passed the impugned order dated 28.01.2015 (Annex.1).

(9) Learned counsel for the petitioner also submitted that the

order of prosecution sanction dated 28.01.2015 is verbatim the

draft prosecution sanction sent by the ACB, which shows that the

authority has not applied its mind while granting prosecution

sanction.

[2023/RJJD/015864] (5 of 10) [CW-1976/2015]

(10) Learned counsel for the petitioner placed reliance upon the

following judgments:-

"(i) Mansukhlal Vithaldas Chouhan Vs. State of Gujarat & Ors. (1997) 7 SCC 622.

(ii) State of Karnataka Vs. Ameer Jan, (2007) 11 SCC 273.

(iii) Subhash Bhatia & Ors. Vs. State of Rajasthan & Ors., (SBCWP No.590/2010, decided on 10.12.2010).

(iv) Hanuman Singh Vishnoi Vs. State of Rajasthan & Ors. (SBCWP No.3628/2007, decided on 14.10.2009).

      (v)     Daya Ram Kherwa Vs. state of Rajasthan &
              Ors. (SBCWP No.10934/2009, decided on
              21.12.2010)."

(11) Shri R.D. Bhadu, learned Government counsel for the

respondents Nos.1 to 3 submitted that ordinarily, the sanctioning

authority is the best person to judge as to whether the public

servant concerned should be protected under the Act by refusing

to accord sanction for his prosecution or not. In this case, the

competent authority examined the entire material on record and

after considering the same and after affording opportunity of

hearing to the parties concerned, the prosecution sanction has

been granted by a detailed and reasoned order which requires no

interference by this Court.

(12) Learned Government counsel further submitted that the at

the time of submitting complaint against the petitioner, he was

posted as Patwari and as per the provisions contained in Rule 412

of the Rules of 1957, which reads as under:-

"412. Administrative matters pertaining to Patwaris.- The Collectors are solely responsible for the appointment, transfer and discipline of Patwaris...."

[2023/RJJD/015864] (6 of 10) [CW-1976/2015]

(13) Learned Government counsel also submitted that as per the

provisions of Section 33 of the Act of 1956, the appointing

authority as well as the disciplinary authority of the petitioner is

the District Collector.

(14) Shri Anil Kumar Bissa, learned counsel appearing for the

ACB, submitted that though the ACB was not a party in the

matter, but in compliance of the general order passed by this

Court in the grant of matters of grant of prosecution by the State

Government in anti-corruption cases, he is appearing on behalf of

the ACB.

(15) Learned counsel for the ACB submitted that the role of the

ACB was only to the extent of investigating a matter and to submit

its report and if prima-facie case was found to be existing, a

report was prepared and placed before the competent authority

for granting prosecution sanction and upon grant of prosecution

sanction, charge-sheet was prepared filed before the competent

court. Thus, so far as grant of prosecution sanction was

concerned, the ACB had no role to play. However, it was submitted

that it is a settled proposition of law that a writ against grant of

prosecution sanction can be maintained only when there is a

breach and/or violation of any of the legal or constitutional right of

a person but, in the instant case, nothing had been brought on

record which showed breach and/or violation of any of the legal or

constitutional rights of the petitioner. He placed reliance upon the

judgment of the Coordinate Bench of this Hon'ble Court rendered

[2023/RJJD/015864] (7 of 10) [CW-1976/2015]

in the case of C.P. Borana Vs. State of Rajasthan & Ors.

[SBCWP No.3682/2009, decided on 02.05.2023].

(16) Heard learned counsel for the parties and perused the

material available on record as well as judgments cited at the Bar.

(17) There are precisely two issues before this Court to consider;

firstly whether the District Collector has rightly passed the

prosecution sanction order being the competent authority and

secondly, whether the order dated 28.01.2015, granting

prosecution is verbatim the draft prosecution sanction and has

been passed without application of mind.

(18) The petitioner was promoted on the post of Inspector, Land

Records vide order dated 09.09.2013 (Annex.3). The FIR for the

incident dated 21.06.2013 was lodged on 28.02.2014. It is thus

crystal clear that on the day of the incident, i.e. 21.06.2013, the

petitioner was holding the post of Patwari and thus, on that day

the District Collector was the appointing authority/competent

authority as per the Rules of 1971 for granting sanction for

prosecution. If the incident would have been of a later date, i.e.

09.09.2013, then obviously Divisional Commissioner would have

been the appointing/competent authority. Therefore, to the extent

as to who is the appointing/competent authority for grant of

prosecution sanction, this Court finds that the District Collector

being the competent authority had the jurisdiction to grant

sanction for prosecution against the petitioner and thus, the issue

No.1 is rejected.

[2023/RJJD/015864] (8 of 10) [CW-1976/2015]

(19) The other issue raised by the petitioner that the order dated

28.01.2015 (Annex.1) is verbatim the draft prosecution sanction

and has been passed without application of mind, cannot be

accepted. Though, the initial para of the impugned order dated

28.01.2015 (Annex.1), looks like verbatim of the draft

prosecution. However, in the later part, the sanctioning authority

has recorded its satisfaction, has also taken into consideration all

the material placed before it, which includes documents/oral

evidence and has also consulted the concerned authority of ACB,

Pratapgarh while affording an opportunity of hearing to the

petitioner. The Hon'ble Apex Court in the case of Central Bureau

of Investigation Vs. Ashok Kumar Aggarwal reported in

(2014) 14 SCC 295, while considering the fulfillment of

requirement before granting prosecution sanction has held as

under:-

"15. Consideration of the material implies application of mind. Therefore, the order of sanction must ex facie disclose that the sanctioning authority had considered the evidence and other material placed before it. In every individual case, the prosecution has to establish and satisfy the court by leading evidence that those facts were placed before the sanctioning authority and the authority had applied its mind on the same. If the sanction order on its face indicates that all relevant material i.e. FIR, disclosure statements, recovery memos, draft charge-sheet and other materials on record were placed before the sanctioning authority and if it is further discernible from the recital of the sanction order that the sanctioning authority perused all the material, an inference may be drawn that the sanction had been granted in accordance with law.

[2023/RJJD/015864] (9 of 10) [CW-1976/2015]

16. In view of the above, the legal propositions can be summarised as under:

16.1. The prosecution must send the entire relevant record to the sanctioning authority including the FIR, disclosure statements, statements of witnesses, recovery memos, draft charge-sheet and all other relevant material.

The record so sent should also contain the material/document, if any, which may tilt the balance in favour of the accused and on the basis of which, the competent authority may refuse sanction.

16.2. The authority itself has to do complete and conscious scrutiny of the whole record so produced by the prosecution independently applying its mind and taking into consideration all the relevant facts before grant of sanction while discharging its duty to give or withhold the sanction.

16.3. The power to grant sanction is to be exercised strictly keeping in mind the public interest and the protection available to the accused against whom the sanction is sought.

16.4. The order of sanction should make it evident that the authority had been aware of all relevant facts/materials and had applied its mind to all the relevant material.

16.5. In every individual case, the prosecution has to establish and satisfy the court by leading evidence that the entire relevant facts had been placed before the sanctioning authority and the authority had applied its mind on the same and that the sanction had been granted in accordance with law."

In the instant case, the learned counsel for the petitioner has

failed to point out that there was any lacuna in the process which

was adopted while granting sanction or any document which was

of paramount importance, was not placed before the sanctioning

authority or that all the material or record was not available with

the sanctioning authority and that, such material or record was

[2023/RJJD/015864] (10 of 10) [CW-1976/2015]

not taken into consideration by the sanctioning authority while

granting prosecution sanction against the petitioner. Thus, from

perusal of the order dated 28.01.2015 (Annex.1), it is evident that

the sanctioning authority has taken into consideration all the

relevant material and evidence and after due application of mind,