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2015 DIGILAW 197 (JHR)

Sunil Khirwal v. State of Jharkhand

2015-02-06

RONGON MUKHOPADHYAY

body2015
JUDGMENT : Heard Mr. Yogesh Modi, learned counsel for the petitioners, Mr. V.S. Sahay, learned counsel for the State and Mrs. J. Mazumdar, learned counsel for O.P. No. 2. 2. In this application, the petitioners have prayed for quashing the entire criminal proceeding in connection with Nawamundi P.S. Case No. 59 of 2007, corresponding to G.R. Case No. 624 of 2007, in which an FIR has been instituted for the offence under sections 406, 420, 447, 379/34 of the Indian Penal Code 3. The prosecution story as would appear from the FIR instituted by the opposite party no. 2 herein is that the informant has an Iron Ore Mines, which had been given for some time to the petitioners as its agents to run the Mines and the said agreement was valid up to 31.8.2007. It has been alleged that from 1.9.2007, the accused persons ceased to be the agents of the informant and that all authorities bestowed upon the accused persons were withdrawn, which fact had also been communicated to the District Mining Officer. It has further been alleged that in spite of having no right over the Iron Ore Mines, the accused persons are continuing to run the Mines, which is illegal. 4. Based on the aforesaid allegations, Nawamundi P.S. Case No. 59 of 2007, corresponding to G.R. Case No. 624 of 2007 was instituted. 5. It has been submitted by the learned counsel for the petitioners that the petitioners are the Directors of M/s B.N. Khirwal Pvt. Ltd., a company registered under the Companies Act. It has further been submitted that Mitra Ghosh and the informant Samir Kumar Ghosh are the lessees in succession of Iron Ore Mines in question. It has also been submitted that the informants are the mining lessees in respect of Iron Ore Mines over an area of 20.07 Hectares in Nawamundi protected forest block no. 40, Revenue Thana, Thana No. 736 in the district of Singhbhum West, which is in two blocks namely Block No. A and Block No. B. The original lessee with respect to the Mines was Shri Manindra Nath Ghosh and after his death on 20.04.1978, his two sons namely Salil Kumar Ghosh and Samir Kumar Ghosh (informant) became the lessees. 40, Revenue Thana, Thana No. 736 in the district of Singhbhum West, which is in two blocks namely Block No. A and Block No. B. The original lessee with respect to the Mines was Shri Manindra Nath Ghosh and after his death on 20.04.1978, his two sons namely Salil Kumar Ghosh and Samir Kumar Ghosh (informant) became the lessees. It has been submitted that before expiry of the lease, which was granted by an indenture of lease dated 8.1.1963 executed on behalf of the State of Bihar, the lessees had applied for renewal of the lease and since no order was passed, the lease was deemed to have been automatically extended till final order was passed on the renewal application. Since the successors to the lease were not in a position to run the Mines, as such the same was transferred in favour of the petitioners' company by virtue of an agreement dated 26.9.1998 and for which an application was also made by the lessees on 24.02.1999 before the Department of Mines & Geology, Government of Bihar. It has further been submitted that in terms of Memorandum of Understanding dated 19.8.1999, the petitioners were authorized to operate, develop the Mines and carry out mining activity at its own expenses and one Sumit Kumar Khirwal (petitioner no. 2), who was one of the Directors of the petitioners’ company, was authorized to operate the Mines in terms of the power of attorney executed by the lessees dated 20.12.1994. Subsequently, as has been stated, after completion of two years, another power of attorney in favour of petitioner no. 2 was executed on 31.8.2003 and on completion of the same, another power of attorney was executed on 1.9.2005, which was valid up to 31.8.2007 and the one which was executed by Smt. Mitra Ghosh for her 50% share in the lease was valid up to 3.11.2008 and therefore it has been submitted by learned counsel for the petitioners that the petitioners had the right to carry on mining activities by virtue of power of attorney granted to them. It has also been submitted that on coming to know that the informants are contemplating to authorize some third party to operate the said Mines, a Title Suit was filed by the petitioners’ company being Title Suit No. 15/2007 and which is still pending. It has also been submitted that on coming to know that the informants are contemplating to authorize some third party to operate the said Mines, a Title Suit was filed by the petitioners’ company being Title Suit No. 15/2007 and which is still pending. He, therefore, submits that in view of the fact that the only allegation against the petitioners is for carrying on mining activity in spite of expiry of the power of attorney, which has been disputed by the petitioners, as such no criminal case is made out against the petitioners. 6. Learned counsel for opposite party no. 2, on the other hand, has submitted that after 31.08.2007 on which date, the power of attorney executed in favour of petitioner no. 2 expired, the petitioners did not have any authority to operate the Mines in question and carrying on mining activity in spite of they having no right to do so automatically makes out an offence, for which the petitioners are liable to be prosecuted. It has been submitted that Samir Ghosh had 50% share in the lease and Mitra Ghosh, widow of late Salil Kumar Ghosh had the rest 50% share and, therefore, on account of expiry of the period specified in their individual power of attorneys executed in favour of petitioner no. 2, the petitioners in spite of the same have continued to run the Iron Ore Mines, which have made themselves liable to be prosecuted. She has further submitted that in the suit, which was filed by the petitioners’ company, an application for injunction under Order 39 Rule 1 and 2 of C.P.C. was filed but the same was also dismissed by the learned court below. 7. After hearing the learned counsel for the parties and after going through the records, I find that the entire dispute revolves around the fact as to whether the Iron Ore Mines in question was being operated by the petitioners within the period specified in the power of attorney or not and whether in the case if it is found that they were working in the Mines without they being authorized to do so by the informants, any criminal offence is made out or not. The company of the petitioners was running the Iron Ore Mines by virtue of a Memorandum of Understanding dated 19.08.1999, in which the company of the petitioners was authorized to operate and develop the Mines and carry on mining activity at its own expenses and by making investment. For that purpose, a power of attorney was executed in favour of petitioner no. 2 on 26.9.1998, which on expiry of five years, a fresh power of attorney was executed in favour of the petitioner no. 2 on 31.8.2003 for a period of two years and on completion of the period of two years on 31.08.2005, another power of attorney was executed by Samir Kumar Ghosh (informant) on 1.9.2005 for a period of two years, which was to expire on 31.8.2007. I further find that the name of Mitra Ghosh (informant) was mutated by the informant as a successor of Salil Kumar Ghosh vide order dated 31.08.2006 and in terms of the same, a separate power of attorney was executed on 4.11.2003 by Smt. Mitra Ghosh for a period of five years and which was to remain in force till 3.11.2008. The First Information Report has been instituted on 23.11.2007, in which the allegations were made that the petitioners were forcibly running the Mines by threatening the informant. The power of attorney executed by Samir Kumar Ghosh was valid up to 31.08.2007 although the power of attorney executed by Smt. Mitra Ghosh was in force when the FIR was instituted. In this context, it would be necessary to refer to the agreement entered into on 26.09.1998 between Shri Salil Kumar Ghosh and Shri Samir Kumar Ghosh as the first party and M/s B.N. Khirwal Pvt. Ltd as the second party, in which it was agreed upon that the members of the first party has agreed to transfer their lease hold right over the lease hold area as per the provisions of Rule 37 of Mineral Concession Rule, 1960. Further conditions with respect to transfer of lease hold right of the members of the first party in favour of second party and for effecting the transfer deed were also included in the terms and conditions of the agreement dated 26.09.1998. Further conditions with respect to transfer of lease hold right of the members of the first party in favour of second party and for effecting the transfer deed were also included in the terms and conditions of the agreement dated 26.09.1998. The suit, which has been filed by the Company of the petitioners was for a decree for declaration to the effect that the plaintiffs are entitled to carry on mining activities over the scheduled mines by virtue of an agreement of transfer dated 26.09.1998 and the Memorandum of Understanding dated 19.08.1999 as also for a decree for permanent injunction restraining the defendants (informants) from interfering in the possession of the plaintiffs over the schedule mines and working thereof by the plaintiffs and from creating any third party interest by way of any deed of transfer or by authorizing any third party to avail the schedule mines by executing any power of attorney in favour of any third party. The Title Suit was filed in August, 2007, which was much prior to institution of the criminal case. The factual aspects of the case, thus, reveal that the same is with respect to breach of terms and conditions of the agreement/contract and the informants have tried to make out a case under the various provisions of Indian Penal Code. Even from the written report given by the opposite party no. 2, the only grievance was to get the Mines vacated from the petitioners in order to enable the informants to run the Mines themselves. Therefore, even as per the version of the informants, the grievance is limited to the extent that the petitioners are not allowing the informants to run the Iron Ore Mines, which on consideration of the entire facts of the case seems to be on the basis of an agreement executed by the informants and for adherence to the terms and conditions of the agreement, a suit has also been instituted by the company of the petitioners. Since the entire case is purely a civil dispute, for which remedy has been sought for by the petitioners by way of filing a suit for specific performance of contract, no criminal case can be allowed to continue for the said acts/actions of the petitioners. 8. In view of what has been stated above, I do find merit in this application. 8. In view of what has been stated above, I do find merit in this application. This application is, accordingly, allowed and the entire criminal proceeding in connection with Nawamundi P.S. Case No. 59 of 2007, corresponding to G.R. Case No. 624 of 2007, in which an FIR has been instituted for the offence under sections 406, 420, 447, 379/34 of the Indian Penal Code, is hereby quashed.