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2014 DIGILAW 1037 (PAT)

Moina Begum v. The State of Bihar

2014-09-25

GOPAL PRASAD

body2014
Judgment Gopal Prasad, J. Heard. 1. This appeal is directed against the order dated 28. 03. 2012 passed by the Special Court, Vigilance, Patna, in Special Case No. 7 of 2010 by which court has rejected the petition to release the property situated at Mauza Mainpura, present Sheopuri, P.S. Phulwarisharif, bearing Tauzi no. 5732, Khata No. 734, Plot No. 1363 with boundary North Smt. Renu Verma and Smt. Sujata Verma South Baldeo ji Sahay, East 10 feet width rasta and West Survey Plot No. 1362 which has been confiscated along with other properties under Section 15 of the Bihar Special Act, 2009 by order dated 23.06.2011. 2. The case in narrow compass that the land originally alleged to have been acquired in the name of Saphalta Devi, wife of Girish Kumar. A petition under Section 13(2) Chapter III of the Special Act, 2009 was filed bearing Special Case No. 7 of 2010 against Girish Kumar and Saphalta Devi, opposite party no. 2 and 3 with schedule money and properties both likely to be confiscated which includes containing list of the land area 1905 Sq.ft bearing Plot No. 1363 at Sheopuri Mohalla standing in the name of Saphalta Devi herein refer as ‘land’ on the ground that the said property has been acquired by offence defined under Section 2(d) of the Special Court Act, 2009. 3. The said petition was filed on 18.08.2010 under Section 13 of the Special Act. Consequently thereupon a notice was issued under Section 14 of the Special Act on 25.08.2010 on Girish Kumar and Saphalta Devi. Subsequently in view of fact that opposite party no. 2 and 3 were avoiding notice, so on 22.11.2010 it was ordered to take steps for publication of notice in daily newspaper and notice was published on 30.11.2010. On 04.12.2010, Girish kumar appeared and filed Vakalatnama and time petition was filed to file show cause and copy of document supplied on 15.12.2010. However, Saphalta Devi abstains from appearing. She executed a sale deed duly registered before Sub Registrar with regard to the land in favour of appellant on 10.12.2010. Thereafter, she appeared on 22.12.2010 filed the show cause intimating that she has executed an agreement to sale the land. 4. However, Saphalta Devi abstains from appearing. She executed a sale deed duly registered before Sub Registrar with regard to the land in favour of appellant on 10.12.2010. Thereafter, she appeared on 22.12.2010 filed the show cause intimating that she has executed an agreement to sale the land. 4. Thereafter the case proceeded and after considering the show cause filed by the opposite party and after hearing the parties confiscation case was allowed with direction to the delinquent opposite party to surrender the possession of the property to the District Magistrate, Patna, within thirty days from the date of service of the order dated 23.06.2011. Against the said order, an appeal was preferred by Girish Kumar, Saphalta Devi and others before the Hon’ble High Court. The appeal was head and also duly dismissed by this Hon’ble Court in Cr. Appeal No. 918 of 2011 on 15.11.2011. 5. After the order of dismissal in the appeal by Hon’ble High Court, a petition was filed by the appellant before Special Court for release of the land on the ground that appellant was neither noticed nor was a party before the Special Court. The further case of appellant was that the opposite party nos. 2 and 3 induced and assured the appellant to purchase the land as the land was free from encumbrance/ liability and was not subject matter of litigation or proceeding of any confiscation proceeding. The appellant agreed to purchase the land and paid Rs. 9,72,000/- through cheque as the consideration money for execution of sale deed before the executor and registration of the sale deed. Sale deed was executed on 10.12.2010, the same was presented for registration and was duly registered by Sub-Registrar, Patna. Thereafter the appellant moved an application for mutation which was also accepted. The appellant invested Rs. 1,00,000/- for construction of boundary wall on the same land. Further case of the appellant is that she had no knowledge about the proceeding under Special Court Act and appellant was unaware of the confiscation proceeding going on before the Special Court and order passed thereon dated 23.06.2011 as well as Cr. Appeal No. 918 of 2011 pending before Hon’ble High Court and its judgment dated 15.11.2011. Further case of the appellant is that she had no knowledge about the proceeding under Special Court Act and appellant was unaware of the confiscation proceeding going on before the Special Court and order passed thereon dated 23.06.2011 as well as Cr. Appeal No. 918 of 2011 pending before Hon’ble High Court and its judgment dated 15.11.2011. It is asserted that appellant knew about judgment of Hon’ble High Court on 19.11.2011 and then came to know that property has been confiscated and taken in possession through the notice displayed on the boards in the land. Thereafter moved an application dated 14.12.2012 before the Special Court for release of the property, purchased by her, confiscation by the State as the appellant was bonafide purchaser and invested her life saving for purchase of the said land. The petition of the appellant was contested and prayer has also been made before Special Court that she is bonafide purchaser and valuation of the land has been shown in schedule of the property attached with the petition for confiscation proceeding under Section 13 of Special Court Act against Girish Kumar and others, as Rs. 3,67,000/- and odd. It has been asserted that the appellant is ready to deposit the same through demand draft and property may be released in her favour under proviso to 15(3) which has already been confiscated under Section 15(3) of the Special Court. The proviso to Section 15(3) provides that if the market price of property confiscated is deposited with the authorised officer the property shall not be confiscated under Section 15(3) of the Special Court Act. 6. The State of Bihar contested the prayer that petition of the appellant Monia Begum is neither tenable nor has locus standi to file such petition. The petition under Section 13 of Special Court Act was initiated against Girish Kumar and his wife, namely, Saphalta Devi. Steps were taken for notice to the Girish Kumar and Saphalta Devi who avoided to accept notice and lastly notice having been published in paper on 20.11.2010. The husband of Saphalta Devi having been appeared on 04.12.2010. Further Saphalta Devi in her statement of defence filed on 12.2.2011 has not disclosed about execution of any sale deed rather she has filed fabricated agreement for sale dated 22.11.2013 but did not file any document of sale. 7. The husband of Saphalta Devi having been appeared on 04.12.2010. Further Saphalta Devi in her statement of defence filed on 12.2.2011 has not disclosed about execution of any sale deed rather she has filed fabricated agreement for sale dated 22.11.2013 but did not file any document of sale. 7. The stand of State is that as per Section 16 of Bihar Special Court Act, any transaction after issuance of notice to proviso 2 and 3 under Section 14 of Special Court Act, is void. The execution of sale deed by Saphalta Devi on 10.12.2010 after publication of notice in news paper on 30.11.2010 is void so the said sale deed is void for the purpose of the Act. It is further submitted that property having been confiscated by State of Bihar under Section 15(3) of Bihar Special Court Act. The appellant is neither the party of proceeding nor has locus to take benefit of Section 16 under the Act. The proviso to Section 15(3) provides that the property shall not be confiscated if the market price of the property confiscated is deposited, is not applicable for appellant. 8. The Special Court after considering the case of parties dismissed the petition of the appellant, Moina Begum by order dated 28.02.2012 on ground that she was not a party in the confiscation proceeding, so prayer is not within the ambit of proviso to Section 15(3) of Bihar Special Court Act. The transfer of the land by Saphalta Devi to the Moina Begum is null and void as hit by Section 16 of the Bihar Special Court Act for the purpose of the Act. The appeal filed by Girish kumar and Saphalta Devi against the order of confiscation having been dismissed by Hon’ble Patna High Court. So Moina Begum has no locus standi so any remedy is available to the appellant is for fraud permitted on her in selling the land. 9. The appellant has preferred this appeal against the order dated 28.03.2012, by which the petition of appellant rejected. 10. The learned counsel for the appellant has challenged the order dated 28.03.2012 on the ground that Section 16 of the Special Court Act 2009 provides that any transfer of property, which is refer to in notice issued under Section 14 of the Bihar Special Court Act shall be void for the purpose of the Act. 10. The learned counsel for the appellant has challenged the order dated 28.03.2012 on the ground that Section 16 of the Special Court Act 2009 provides that any transfer of property, which is refer to in notice issued under Section 14 of the Bihar Special Court Act shall be void for the purpose of the Act. It has further been submitted that notice published in the news paper on 30.11.2010 did not contain the description of the land or property for which notice was issued as apparent from the notice published in newspaper and when the notice publish in news paper has not contained the description of the land then bar under Section 16 is not applicable to the appellant. It is further asserted that since the appellant has purchased the property by registered deed, she has interest in property and hence has locus. It is further submitted that Section 17 provides that any person aggrieved by any order of the authorised officer under this Chapter may appeal to the High Court within thirty days from the date on which the order appealed again was passed. It is stated that she had no knowledge about the proceeding under Special Court Act and hence on having received the information about the order she filed the petition to release the property in favour of the appellant and is ready to deposit the amount valued for the land in the petition filed under Section 13 of Bihar Special Court Act for release under proviso to Section 15(3) of Special Court Act. 11. The learned counsel for the Vigilance however contends that the appellant has no locus under the Act as the sale deed executed in favour of the appellant by Saphalta Devi after the notice published in news paper on 30.10.2010 and prior to that as per report dated 18.09.2010, Saphalta devi intentionally not received the notice. After publication of the notice in news paper on 30.11.2010, she appeared in the case but neither object the notice published in the paper nor she disclosed the execution of the sale deed in her statement of defence rather mentioned only about an agreement to sale. She contested and lost and order of confiscation passed and the said order has also been confirmed in appeal. The said order of confiscation passed by Special Court has not been challenged by the appellant. She contested and lost and order of confiscation passed and the said order has also been confirmed in appeal. The said order of confiscation passed by Special Court has not been challenged by the appellant. The appellant now cannot take the benefit of defect of notice published in paper against Saphalta Devi about non-mentioning of the land in notice as after the disposal of case and even the dismissal of appeal filed by Saphalta Devi, the appellant has neither challenged the order of confiscation passed against Saphalta Devi nor has locus to contest. 12. A counter affidavit filed on behalf of the Vigilance that Saphalta Devi intentionally and knowingly not received the notice as appeared from the Service report dated 18.09.2010 and notice published in news paper on 30.11.2010 and after publication of notice, her husband appeared on 04.12.2010 and Saphalta Devi appeared on 21.12.2010 after alleged execution of sale deed on 10.12.2010 and in her show cause or statement for defence dated 15.02.2011 has not disclosed about execution of sale deed in favour of appellant. 13. An affidavit has also been filed on behalf of respondent nos. 2 and 3 Girish Kumar and Saphalta Devi before this Court in this appeal that after rejection of the petition filed by appellant in the court below, the appellant filed a complaint case in the court of Chief Judicial Magistrate, Patna, on 11.06.2012 bearing Complaint Case No. 1618 C of 2012 for offence under Sections 406, 417, 420, 423, 465, 467, 468, 504, 506 and 120B of the Indian Penal Code against respondent no. 3, Saphalta Devi for cheating by suppressing the fact about pendency of confiscation proceeding before Special Court under Special Court Act. It has further been stated that respondent no. 2 Girish Kumar filed anticipatory bail before Hon’ble Court in Cr. Misc. no. 9869 of 2013 for grant of anticipatory bail and during course of hearing, respondent paid Rs. 13,00,000/- (thirteen lakhs) to the appellant returning the consideration money taken for execution of sale deed with regard to the land, by Bank draft and cheque which are photo copy of the draft and cheque marked as Annexure-2 series annexed in the counter affidavit with assertion that when the appellant accepted the amount of Rs.13,00,000/- (thirteen lakhs) as return of the consideration amount. Hence, appellant ought not to require to seek release of the land as grievance of the appellant is over. It has been stated that these respondent have preferred an appeal before Hon’ble Supreme Court against the order of this Court dated 28.06.2011 in Criminal Appeal No. 418 of 2011 by which in Cr. Appeal No. 918 of 2011 confirming the order of confiscation passed by Special Court., dated 23.06.2011 passed in Confiscation Case No. 7 of 2010. Hence submits that now appellant is not entitled to get order of release of the property when consideration money has already been received by him. 14. Hence taking into consideration the fact and circumstance of the case and respective submission the question for consideration whether the appellant is the person aggrieved under Section 17 of the Special Court Act to challenge the order passed under the Act or to get a benefit under proviso to Section 15(3) of the Special Court Act for the reason or on the ground that Saphalta Devi sold the land to the appellant by permeating a fraud by deceiving or misrepresenting the appellant to purchase the property as the said property was free from any encumbrance and liability and was not subject of any dispute or any confiscation proceeding. 15. However before proceeding to consider the question, it is pertinent to go into the preamble of the Act. The Special Court has been created for speedy trial of certain class of offence by which the Public Servants acquire property by corrupt means, to fight the menace of corruption by Public Servant within the meaning of Section 2(C) of Prevention of Corruption Act as apparent from the preamble of the Act. The Scheme of the Act as apparent under Section 3 of the Act to establish Special Court for speedy trial of offence defined under Section 2(e) of Special Court Act committed by Public Servant, on declaration made by State Government under Section 5 of the Special Court Act as if the State Government takes a decision on its opinion that there is prima facie evidence of commission of offence under Section 2(e) by a public servant with regard to a case instituted or pending. Section 7 provides that the Special Court has jurisdiction to try a person having committed the offence under Section 2(e) of Special Court Act in respect of which a declaration has been made under Section 5 and Chapter III provides procedure for the confiscation of the property earned by offence under Section 2(e) of the Special Court Act. Section 13 provides the procedure for filing petition for confiscation that if the State Government on the basis of prima facie evidence has reason to believe that any public servant has property more than his known source of the income earned by offence defined under Section 2(e) of the Special Court Act then the State Government shall authorise Public Prosecutor to file application before authorised officer for confiscation of those property which the State Government believe the said person to have procured by offence defined under Section 2(e) of the Act with specification of money and property 16. Section 14 (1) provides that on receipt of the application the authorised officer shall serve a notice upon the person alleged to have acquired property by offence under Section 2(d) of Special Court Act to indicate the source of income by which he acquire the money or property and the evidence he relies and further to show cause why the property be not be declared to have been earned by offence under section 2(e) be confiscated. Section 14(2) provides that in case where notice issued under Section 14(1) to any person alleged to have acquired property by offence under Section 2(e) specifies that the property in notice held by him on behalf of any other persons then notice is required to be served on such other person. Section 14(3) provides that the evidence, information and particular brought on record before the authorised officer by person effected or the State Government shall be open to rebuttal in trial. 17. Section 15 provides that the authorised officer after considering explanation and material available and giving reasonable opportunity of being heard under Section 15(2) shall record a finding specifying the money and property acquired by means of the offence and shall under Section 15(3) declared the property stand confiscated to the State Government. However the proviso to Section 15(3) provides if the market price of the property confiscated is deposited the authorised officer shall not confiscate. 18. However the proviso to Section 15(3) provides if the market price of the property confiscated is deposited the authorised officer shall not confiscate. 18. Section 16 of the Special Court Act provides that any transfer of property which is referred in notice under Section 14 shall be void for the purpose of proceeding under the Act. 19. Section 17 provides that against the order passed by Special Court, the person aggrieved may file appeal within 60 days and the appeal be heard giving opportunity to the parties and be disposed preferably within six months. 20. Section 18 provides power to order surrender within 8 days if same not surrendered and on referred or fail the authorised officer shall take possession and taking ascertain of police for taking possession. 21. Section 19 provides that if order of confiscation under Section 15 is modified or annulled by High Court or affected person is acquitted by Special Court the money or property shall be returned and if not possible to return then such person shall be paid the price and money of property and money with interest. 22. Having considering the Scheme of the act it is apparent that the Special Court created under the Special Court Act has been designed to try cases for special type of offence under the P.C. Act defined as offence under Section 2(e) of the Special Court Act and for confiscation of the property acquired by a Public Servant, within the meaning of Section 2(c) of the Prevention of Corruption Act by an offence under PC Act and to confiscate property acquired by offence defended under Section 2(e) of the Special court Act. Hence the Special Court has been constituted with a limited jurisdiction to adjudicate and try cases for special type of offence and for confiscation of the property earned by Public Servant by offence under Section 2(e) of the Special Court Act, so the Special Court under Chapter III has very limited jurisdiction to go into the limited question whether the property earned by offence under Section 2(e) of Special Court Act and has no jurisdiction to go into a question beyond it. 23. Now coming to the merit of the case, the appellant claims the property the land on the basis that she has purchase from Saphalta Devi. 23. Now coming to the merit of the case, the appellant claims the property the land on the basis that she has purchase from Saphalta Devi. The said land is subject matter of confiscation proceeding on allegation to have earned by offence under Section 2(e) of Special Court Act disproportionate to known source of Girish Kumar, the husband of Saphalta Devi The claim of the appellant that after the proceeding initiated she has purchase the land and at the time of purchase the appellant was not intimated about the confiscation proceeding by the Saphalta Devi from whom the appellant purchase, so she alleged to have been defrauded by Saphalta Devi. Hence the claim of the appellant is simple of being defrauded by Saphalta Devi of her not disclosing the fact about the land being subject matter of confiscation proceeding and so appellant is defrauded. Her claim independent or irrespective of the question whether the land in the name of Saphalta Devi acquired by offence under Section 2(e) of the Special Court Act. The Special Court or authorised officer under Special Court Act having limited jurisdiction to decide the issue whether the property acquire by offence under Section 2(e) for confiscation of the same cannot go into question to decide the damage or claim of the appellant which has no bearing to the subject matter of the jurisdiction given to Special Court as the claim of the appellant is irrespective of fact whether property earned by offence under Section 2(e) of the Act. 24. The argument advance by the learned counsel for the appellant that the appellant is person aggrieved under Section 17 of Special Court Act and liable for relief claimed about her right under the Special Court Act is totally misconceived. Since the Special Court has only jurisdiction to go into question whether property earned by offence defined under Section 2(e) of the Special Court Act whereas the claim of appellant has no concern with it. Hence the person having his claim no bearing to the question or issue that property earned by offence under Section 2(e) of the Act cannot be the person aggrieved under Section 17 of the Special Court Act. Hence the person having his claim no bearing to the question or issue that property earned by offence under Section 2(e) of the Act cannot be the person aggrieved under Section 17 of the Special Court Act. Here the claim of the appellant is that she has been defrauded by Saphalta Devi by concealing the fact that the property is subject matter of confiscation proceeding which is irrespective of the fact or issue whether the property earned by offence under Section 2(e) of the Special Court Act and for the nature of claim of the appellant is beyond the jurisdiction of the Special Court and the appellant has no locus to raise the issue before Special Court nor the Special Court has jurisdiction to decide the claim of the appellant. The appellant’s remedy as per nature of claim is only before regular Civil Court for damages or before regular Criminal Court for being defrauded by dishonest inducement for illegal gain It has brought to the notice of the appellant has exercise the jurisdiction before normal Criminal Court by lodging criminal case. In pursuance of criminal case lodged by appellant, the Hon’ble High Court while granting bail to Saphalta Devi ordered to return back the consideration amount she received by the appellant be returned back and in pursuance the consideration money has been returned back to the appellant and the appellant has got the consideration money return back. Moreover, allowing the nature of dispute raise to have been adjudicated by Special Court, whole purpose to constitute the Special Court Act shall be defeated for expeditious disposal of those cases. 25. Hence the appellant cannot be held to be a person aggrieved under Section 17 of the Special Court Act to claim the benefit of Section 15 or 16 of the Special Court Act as is neither a person to have acquired the property by offence nor a person to have in possession on behalf of the person acquired the property by offence that is neither in category of person mention in Section 14(1) and 14(2) to Special Court Act to be issued notice to him nor his claim has bearing to have acquired under Section 2(e) of the Special Court Act as his claim is irrespective of fact or issue whether property earn by offence. The nature of claim of the appellant that she has been defrauded by Saphalta Devi in concealing the fact that property is subject matter of the confiscation proceeding is concern, the Special Court has no jurisdiction to decide the issue and remedy lie before regular Civil Court or Criminal Court. 26. Hence I do not find any merit to interfere with the order impugned and accordingly the appeal is dismissed. Appeal dismissed.