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Himachal Pradesh High Court · body

2014 DIGILAW 1833 (HP)

Seema Luthra v. State of Himachal Pradesh

2014-12-08

SURESHWAR THAKUR

body2014
JUDGMENT : Sureshwar Thakur, J. 1. The petitioner herein seeks quashing of FIR No.148 of 2013 of 12.12.2013 registered at Police Station, Dharampur, District Solan, H.P., under Sections 420 and 120B, IPC and 13(2) of the Prevention of Corruption Act. 2. The allegations against the petitioner as comprised in the FIR is of hers despite not being an agriculturist in the State of Himachal Pradesh, having fraudulently obtained an agriculturist certificate from the revenue agency concerned. The agriculturist certificate is comprised in Annexure P-4. She in sequel thereof purchased property under sale deed comprised in Annexure P-5. In the FIR, it is alleged that though the petitioner herein claims herself to be a legatee under the Will of one late Shri Surjeet Singh alias Jatinder Kumar, her brother-in-law which was executed in the year 1987, yet on attestation of mutation No.178 sanctioned in the year 1999, the entire land of deceased testator Surjeet Singh alias Jatinder Kumar came to be mutated in the name of his legal heirs. Hence, the petitioner herein was driven to institute a civil suit for declaration for setting aside mutation No.178 sanctioned in the year 1999, whereby in derogation to the conferment upon the petitioner herein of ¼ share in the property of the deceased testator, the entire property of the deceased testator was mutated in favour of his legal heirs. Hence, the petitioner herein was driven to institute a civil suit for declaration for setting aside mutation No.178 sanctioned in the year 1999, whereby in derogation to the conferment upon the petitioner herein of ¼ share in the property of the deceased testator, the entire property of the deceased testator was mutated in favour of his legal heirs. Even though, the suit was decreed, however, the FIR records that the decree is collusive and does not have the effect of rendering the petitioner herein to be construable to be an agriculturist, besides with the factum of the petitioner herein having purportedly acquired a right in the land/estate of deceased testator Surjeet Singh alias Jatinder Kumar under the testamentary disposition of the latter, yet the decree of the Civil Court of competent jurisdiction having been rendered in the year 2008, as such then investing a right in the petitioner herein to claim in consonance with the testamentary disposition of her brother-in-law since deceased, in sequel, with the provisions of Section 118 of the Himachal Pradesh Tenancy and Land Reforms Act, 1972, the relevant portion whereof stand extracted hereinafter, creating a bar/embargo in the year 1995 against the transfer of land by a decree of a Civil Court of competent jurisdiction or by way of Will in favour of a person, who is not an agriculturist as the respondent contend the petitioner herein to be so, the acquisition of title by the petitioner herein under a purported collusive decree of the Civil Court of competent jurisdiction rendered in the year, 2008 would lead to no other conclusion than that of the decree of the Civil Court of competent jurisdiction creating or investing no right in the petitioner herein to claim herself to be an agriculturist. On anvil thereof, it is contended that the petitioner herein was not entitled to obtain an agriculturist certificate comprised in Annexure P-4 issued in the year, 2012, as such, it is contended that the same is fraudulently obtained by the petitioner. The relevant portion of Section 118 of the Himachal Pradesh Tenancy and Land Reforms Act reads as under: ?118. On anvil thereof, it is contended that the petitioner herein was not entitled to obtain an agriculturist certificate comprised in Annexure P-4 issued in the year, 2012, as such, it is contended that the same is fraudulently obtained by the petitioner. The relevant portion of Section 118 of the Himachal Pradesh Tenancy and Land Reforms Act reads as under: ?118. Transfer of land to non agriculturists barred.- (1) Notwithstanding anything to the contrary contained in any law, contract, agreement, custom or usage for the time being in force, but save as otherwise provided in this Chapter, no transfer of land (including transfer by a decree of a civil Court or for recovery of arrears of land revenue) by way of sale, gift, will, exchange, lease, mortgage with possession creation of a tenancy or in any other manner shall be valid in favour of a person who is not an agriculturist………………………………………? 3. Before the proceeding to adjudicate upon the factum of the validity of the decree of a Civil Court of competent jurisdiction and whether it on its rendition or pronouncement created a right then in favour of the petitioner herein so as to attract the bar of the afore extracted relevant provisions of the Himachal Pradesh Tenancy and Land Reforms Act or whether when it merely pronounced on its rendition the factum of the petitioner herein being entitled to, in consonance with the testamentary disposition of her brother-in-law a 1/4th share in the latter's estate which right accrued on the deceased testator's demise in the year 1989, as to whether then a right accrued or ensued to the petitioner herein to claim title to his estate and concomitantly, whether then in the face of a right in the estate of the deceased testator having occurred prior to coming into force of an amendment in the relevant provisions of the Himachal Pradesh Tenancy and Land Reforms Act, the obtaining or issuance of an agriculturist certificate in favour of the petitioner herein by the Revenue Agency concerned even subsequent to the coming into force an amendment in the relevant provisions of the Himachal Pradesh Tenancy and Land Reforms Act, constituted it to be or not to be fraudulently obtained, it is hence, imperative to gauge the scope and amplitude of the powers conferred upon this Court under the Section 482 of the Code of Criminal Procedure. The relevant decision which encapsulates the scope of the jurisdiction vested in this Court under Section 482, Cr.P.C. is reported in State of Haryana v. Bhajan Lal, 1992 Suppl(1) SCC 335, the relevant portion whereof reads as under: (SCC pp.378-379, para 102) ?(1) Whether the allegations made in the First Information Report or the complaint, even if they are taken at their face valued and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. (2) Where the allegations in the First Information Report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (4) Where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the Act concerned (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the Act concerned, providing efficacious redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grude.? 4. The gravamen and import of the decision whose relevant portion has been extracted hereinabove is that this Court would be competent to quash an FIR only in the event where the FIR does not disclose any offence or is frivolous, fictitious and oppressive. 4. The gravamen and import of the decision whose relevant portion has been extracted hereinabove is that this Court would be competent to quash an FIR only in the event where the FIR does not disclose any offence or is frivolous, fictitious and oppressive. The determinant fact for reaching a conclusion whether any offence is constituted by the allegations leveled against the petitioner herein in the FIR lodged against her, is whether the agriculturist certificate obtained by the petitioner herein comprised in Annexure P-4, was fraudulently or dishonestly obtained. It would be sufficient for this Court to construe that it was dishonestly and fraudulently obtained in the event of the petitioner herein not having demonstrated before this Court by cogent material that she on the demise of her brother-in-law, namely, Surjeet Singh alias Jatinder Kumar in the year 1989, who had under his testamentary disposition executed in the year 1987 bestowed upon her a ¼ share in his estate had then no right to seek its alienation or transfer in her favour. The legatees under the Will or the legal representatives of the deceased testator, namely, Surjeet Singh alias Jatinder Kumar have not contested the factum of the validity of the testamentary disposition of the latter. Therefore, an apt conclusion is that the testamentary disposition of the deceased testator Surjit Singh alias Jatinder Kumar is to be concluded to be duly and validly executed. Therefore, an apt conclusion is that the testamentary disposition of the deceased testator Surjit Singh alias Jatinder Kumar is to be concluded to be duly and validly executed. The anvil of the prosecution case, at this stage, against the petitioner herein is that with the coming into force of the amendment to the provisions of Section 118 of the Himachal Pradesh Tenancy and Land Reforms Act in the year 1995 the decree of a civil Court of competent jurisdiction rendered in the year 2008 whereby the petitioner herein was declared to be in consonance with the testamentary disposition of brother-in-law of the petitioner herein, namely, Surjeet Singh alis Jatinder Kumar entitled to a ¼ share in his estate, attracts the bar envisaged under Section 118 of the Himachal Pradesh Tenancy and Land Reforms Act, inasmuch as with the transfer of land to the petitioner herein having occurred or taken place, hence, by a decree of a Civil court of competent jurisdiction subsequent to the year, 1995, when the amendment in the relevant provisions of the Himachal Pradesh Tenancy and Land Reforms Act came into force and the acquisition of title to the estate of the legator under a decree of the Civil Court of competent jurisdiction, as such, then constituting transfer of the land of the brother-in-law of the petitioner/deceased testator Surjeet Singh alias Jatinder Kumar in favour of the petitioner herein under a decree of a Civil Court of competent jurisdiction constitutes an infraction by the relevant provisions of the Himachal Pradesh inTenancy and Land Reforms Act with the concomitant effect of rendering invalid the issuance of an agriculturist certificate in her favour by the revenue agency concerned. 5. 5. At this stage, the acid or acerbic determinant to put to at rest the controversy qua the attraction or applicability of the bar envisaged under Section 118 of the Himachal Pradesh Tenancy and Land Reforms Act, 1972 to the acquisition of title by the petitioner herein by a decree of a Civil Court subsequent to 1995 in consonance with the Will of her brother-in-law whereby she was held entitled to 1/4th share in his estate is encapsulated in the fact whether the acquisition of title to the estate of the deceased testator/brother-inlaw by the petitioner here was under a decree of a Civil Court or the right of the petitioner herein to inherit the property of her brother-in-law/the deceased testator/legator, namely, Surjeet Singh alias Jatinder Kumar arose on demise of the latter in the year 1989, hence prior to the creation of a bar or embargo in the year 1995 in the relevant provisions of the Himachal Pradesh Tenancy and Land Reforms Act against the acquisition of title either by a Will or a decree of the Civil Court of competent jurisdiction. In case this Court concludes that then the embargo or legal bar contemplated under Section 118 of the Himachal Pradesh Tenancy and Land Reforms Act, is attracted to the decree of a Civil Court of competent jurisdiction rendered subsequently to the year 1995 when the amendment engrafting the bar came into force, then the petition as laid before this Court would suffer dismissal. However, in case this Court concludes on a interpretation of the provisions of Section 118 of the Himachal Pradesh Tenancy and Land Reforms Act in consonance with the material as laid before this Court, more especially the testamentary disposition of the brother-in-law of the petitioner herein, namely, Surjeet Singh alias Jatinder Kumar, who executed a testamentary disposition vesting in his estate on his demise a 1/4th share in the petitioner herein, hence, in the face of his demise having occurred in the year 1989, therefore, prior to the year 1995 when the amendment in the relevant provisions of the Himachal Pradesh Tenancy and Land Reforms Act creating an embargo against the acquisition of title in agricultural land by a non-agriculturist by way of a Will or a decree of a Civil Court of competent jurisdiction came into force, as such, then a concomitant conclusion may be arriveable that the transfer of alienation or vestment of a right in the estate of the deceased testator Surjeet Singh alias Jatinder Kumar occurred on his demise in the year 1989, then the agriculturist certificate obtained by the petitioner even after coming into force of the amended relevant provisions of the Himachal Pradesh Tenancy and Land Reforms Act in the year 1995, would be stripped off its fraudulence. 6. Before determining whether on the demise of the brother-in-law of the petitioner herein in the year 1989, the petitioner herein acquired title or was entitled then to succeed to his estate, a finding also ought to be rendered that the amendment in the provisions of Section 118 of the Himachal Pradesh Tenancy and Land Reforms Act in the year 1995 creating and constituting an embargo or a bar against the transfer of agricultural land in favour of a non-agriculturist by a decree of a Civil Court of competent jurisdiction and by way of a will has been given a prospective effect, hence, is not retrospective. Consequently, when the amendment in the relevant provisions of the Himachal Pradesh Tenancy and Land Reforms Act has been omitted to be given retrospective effect, consequently, the testamentary disposition of the brother-in-law of the petitioner herein, namely, Surjeet Singh alias Jatinder Kumar, executed in the year 1987 and who died in the year 1989 did immediately on his demise in the year 1989, hence, preceding to coming into force of the amendment constitute a right or entitlement of the petitioner herein to succeed to his estate. In other words, immediately on his demise the transfer of the estate of the deceased testator was effectuated in her favour. Even though, the decree of the Civil Court was rendered in the year 2008, hence, it is urged by the learned Deputy Advocate General that the acquisition of title or entitlement or transfer of agricultural land of deceased testator Surjeet Singh alias Jatinder Kumar occurred only on its rendition, nonetheless the said argument is fallacious besides staggers in the face of the aforesaid finding that the acquisition of title or entitlement or transfer of the land of the deceased testator having accrued on the demise of deceased testator in the year, 1989 whereas the decree of a Civil Court was rendered in the year 2008 decree of a Civil Court is anvilled on the Will of Surjeet Singh alias Jatinder Kumar and merely confirms the recitals in it of the petitioner herein being entitled to a 1/4th share in his estate. The decree of a Civil Court did not create or transfer on its rendition rights in the petitioner in the estate of deceased testator Surjeet Singh alias Jatinder Kumar, rather the transfer or creation of rights in the estate of deceased testator Surjeet Singh alias Jatinder Kumar occurred under the testamentary disposition of the latter to the extent of 1/4th share in his estate immediately on his demise in the year 1989, hence, prior to the amendment in the relevant provisions of the Himachal Pradesh Tenancy and Land Reforms Act carried out in the year 1995. As such, it cannot be concluded that the agriculturist certificate Annexure P-4 issued in favour of the petitioner herein by the Revenue Agency, is fraudulently obtained by her. As such, it cannot be concluded that the agriculturist certificate Annexure P-4 issued in favour of the petitioner herein by the Revenue Agency, is fraudulently obtained by her. In aftermath, it ought to be concluded that since ingredients of the offence constituted in the FIR lodged against the petitioner herein are not sustainable, as such, the prosecution of the petitioner would be oppressive as also humiliate or harass her besides would be an abuse of the process of law. 7. For the foregoing reasons the petition is allowed and the FIR No.148 of 2013 of 12.12.2013 registered at Police Station, Dharampur, District Solan, H.P., under Sections 420 and 120-B, IPC and Section 13(2) of the Prevention of Corruption Act is quashed. All the pending applications, if any, also stand disposed of. No costs.