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2019 DIGILAW 60 (JK)

Mohammad Bashir v. State of J&K

2019-02-06

RASHID ALI DAR

body2019
JUDGMENT : 1. Registration of FIR No. 02/2019 P/S VOK for commission of offence under Sections 5(1) and 5(2) Prevention of Corruption Act, 2006 read with Section 120-B Ranbir Penal code is being called for question in terms of the instant petition while pleading on behalf of the petitioner that:- (I) He in the capacity as Tehsildar North Srinagar in the year 2011-12 attested mutations on oral gifts which under law and rules governing the subject is permissible. (II) That being the authorized Revenue Officer, petitioner is competent to attest the mutations, however, has been implicated in a false and frivolous FIR, referred above, which is aimed at to tarnish his unblemished service record for some ulterior motives. (III) The accusation that the petitioner while discharging his duties as Tehsildar induced public to seek mutations on Hibba Zabani(Oral gift) to avoid stamp duty depriving the Government of the stamp duty, is legally misconceived because no compliant whatsoever has been lodged against the petitioner in this regard. 2. According to the learned counsel for the petitioner, the transfer of property by way of oral gift in law is valid and has a sanction of law, be it Mohammadan Law/Shariat Act or the law laid down by the Honble Apex Court in a celebrated judgment reported in (2011) 5 SCC 654 , Hafeeza Bibi and ors. Vs. Shaikh Farid and Ors. In the said case, their lordships’ have observed that a Muslim can make a gift of immoveable property orally, its form being immaterial, and an oral gift is a valid mode of transfer of immoveable property under and in terms of Transfer of Property Act. 3. It is being also canvassed that the allegation against the petitioner that he had adopted a unique and peculiar modus operandi to conduct mutation proceedings on the basis of oral gifts of the properties in conspiracy with other persons while attesting a large number of mutations on the basis of oral gifts with respect to land measuring 1787 kanals and 02 marlas during his tenure (2011-12), is factually as well as legally unsustainable in view of the fact that the petitioner had competence and jurisdiction being an authorized Revenue Officer to attest the mutation under relevant revenue laws i.e. Land Revenue Act/Agrarian Reforms Act read with standing order 23A. A Circular dated 09.10.2013 referred in this regard reads as:- “In compliance to the judgment of the Hon’ble Supreme Court of India read with the opinion tendered by the Department of Law, Justice and Parliamentary Affairs on the subject matter, it is enjoined/impressed upon all the concerned authorities coming under the administrative control of the Revenue Department to implement the Hon’ble Supreme Court’s judgment vis-a-vis law/rules governing the subject matter.” 4. It is the further contention of learned counsel that the plea of the respondents as referred in the said FIR, that the allegations levelled against the petitioner were probed is fallacious as according to the petitioner same is not known to him because no preliminary enquiry has been conducted in the matter. Had the respondents conducted any inquiry and given a chance to him to explain his position, he would have definitely responded the same, but same does not happen. 5. Buttressing his arguments, learned counsel makes further submission that the Government vide SRO 367 dated 13.10.2015 authorized the Collector/Deputy Commissioner for attestation of mutations in case of oral gifts instead of Tehsildars meaning thereby that prior to year 2015 i.e. issuance of SRO 367, Tehsildars were competent to attest the mutations upon all gifts under Section 33 of J&K Land Revenue Act read with Clause III to Rule 29 of Standing order 23. For ready reference SRO-367 quoted supra is reproduced hereunder:- “In exercise of the powers conferred under section 33 of the Jammu and Kashmir land Revenue Act Samvat.1996, the Government hereby direct that after Clause III to Rule 29 of the standing order No.23-A, the following proviso shall be added:- (iv) provided also that mutations regarding “Gift or Bequest” (Oral Gift/Hiba-e-Zabani) shall be attested by an officer not below the rank of Collector/Deputy Commissioner and in case of any gift to a person outside the blood relation or an institution, the mutation shall be attested after seeking prior approval of the Government in the Revenue Department.” 6. Therefore, by the medium of instant petition has prayed for quashment of said FIR No. 02/2019 with further prayer to refrain the respondents from undertaking any investigation in the said FIR or subject the petitioner to any arrest or detention. 7. Therefore, by the medium of instant petition has prayed for quashment of said FIR No. 02/2019 with further prayer to refrain the respondents from undertaking any investigation in the said FIR or subject the petitioner to any arrest or detention. 7. Petitioner has annexed various copies of documents with the petition which includes FIR No. 02/2019, Circular dated 09.10.2013, SRO 367, Legal opinion on attestation of mutations of oral gift by Revenue Officers in the field etc. While having reference to these documents, learned counsel for the petitioner submitted that it has been brought to the notice of the higher authorities in the Government by Deputy Commissioners, Pulwama, Anantnag, Bandipora, Budgam and Baramulla that large number of mutations have been attested by various revenue officers during the period indicated therein but integrity of such officers who had attested the mutations has not been questioned or any action taken against them. Rather the Government in order to come-over the apprehension of loss of stamp duty and the mutations may not be attested bonafidely issued SRO 367 dated 13.10.2015 referred above. Furthermore, according to him, the petitioner had also attested some other mutations which include the mutations of 4460 sale-deeds, 930 inheritance documents, 1469 gift-deeds, 39 settlement-deeds, 12 allotments and 88 others. 8. Another plea taken by learned counsel for the petitioner is that the registration of FIR is infact aimed at to frustrate the judgment passed by learned Single Bench and confirmed by learned Division Bench regarding compulsory retirement of the petitioner in the same backdrop. While explaining the same, learned counsel submitted that it is in the FIR that reference of the communication of GAD(Vig) dated 24.10.2013 has been made relating to the investigation of allegations levelled against the petitioner by Vigilance Organization. The said FIR has been registered on 17.01.2019 but the investigating agency is not fair in registering the case against the petitioner or launching of contemplated prosecution. Learned counsel for the petitioner has made reference of some of the orders passed by this Court whereby interim assistance has been granted in favour of the petitioner(s)(accused) therein, in the above similar accusations, according to him. 9. Having regard to the controversy projected in the petition, notice be issued in the main petition as well as in the application seeking interim assistance, for filing of objections, if any. 9. Having regard to the controversy projected in the petition, notice be issued in the main petition as well as in the application seeking interim assistance, for filing of objections, if any. In the said objections respondents, Vigilance Organization, in particular shall address the issue as to whether the power stated to have been exercised by the petitioner for attestation of mutations in the light of the provisions of Land Revenue Act and the standing order 23, can be treated as an “act’ or “omission’ or “misconduct’ within the meaning of the provisions of Ranbir Penal Code/Prevention of Corruption Act, 2006 and also as to what had been its response after the receipt of the communication of GAD dated 24.10.2013, and how it had proceeded for last so many years. Meanwhile, subject to objections and till next date of hearing, in the eventuality of arrest of the petitioner(accused) in connection with FIR No. 02/2019, P/S VOK for commission of offence under Section 5(1) and 5(2) Prevention of Corruption Act, 2006 read with Section 120-B RPC, shall be released on bail subject to furnishing bail by two sureties in the amount of Rs.50,000/- to the satisfaction of concerned I.O, conditioned that the petitioner:- (a) shall appear before the investigating agency as and when required and shall cooperate with it; (b) shall not leave the territory of the Valley without prior permission of concerned I.O; (c) shall not change his place of residence without permission; and (d) shall not hamper or tamper with the prosecution evidence. 10. List again on 06.03.2019.