Jammu APRIL-03-2023:- In a much publicized case in which CBI produced challan against Kanta Andotra, former MLA and then Chairperson of an educational trust based at Kathua and Ravinder Singh, the then Patwari Muthi Hardo for illegal possession and encroachment of land, Special Judge CBI Court RK wattal directed reinvestigation in the case and granted four months time therefore merits to be granted for re investigation under the supervision of SP CBI concerned.
This case has been registered on the complaint of CBI officer Sh. Vikas Renot Sub Inspector ACB Jammu on the basis of the preliminary enquiry done by him on some source information to the effect that a huge land of J&K Government Public/Forest Department in District Kathua J&K has been encroached upon by some unscrupulous elements in violation of J&K Agrarian Reforms Act 1976 and in connivance with Revenue officers and Forest officers of the Departments.
It was alleged in the complaint that Revenue officials of Kathua have entered into criminal conspiracy R.B Educational Trust Kathua allowing the said trust to retain the land beyond 100 kanals ceiling limit provided under Agrarian Reforms Act and a case under section 120-B r/w 218, 409 RPC and section 5(2) r/w 5 (1) (c) of J&K P.C.Act 2006 came to be registered under FIR No. RC0042020A0005 against the said Trust through its Chairperson accused No.1, Ajay Singh the then D.C.Kathua, Avtar Singh the then Tehsildar Marheen, Des Raj the then Naib Tehsildar Chhan Arorian Tehsil Marheen, Ram Paul the then Girdwar, Sudesh Kumar the then Patwari and other unknown persons.
It was alleged in the FIR that the Kanta Adnotra has acquired land in excess of the ceiling limit of 100 standard Kanals in violation of section 14 of Agrarian Reforms Act 1976 and accused No.1 got the wrong calculation of land done which was held by the said Trust as 152 Kanals 01 Marla and 110 Kanlas and 18 Marlas by entering into conspiracy with other Revenue officials and officers and a false affidavit was also sworn before the Hon’ble High Court to mislead the court and save the trust and to give benefit to the trust allowing it to retain excess land.
After the registration of the case investigation was done, the evidence was collected the enquiry report which was given by the enquiry committee after the order of enquiry was passed ,was also collected and it was found that supplementary trust deed dated 16.04.2008 and 09.12.2017 were registered with family members of accused No.1 as its members.
It was further revealed during investigation that the said trust and the family members of husband of accused No.1 had got land transferred in his favour on his name and through attorney comprising of three sale deeds dated 08.05.2006 for total 79 Kanals 01 Marla, gift deed executed on 08.05.2006, 25.10.2007 and 26.10.2007 with respect to 79 Kanals 01 Marlas, 12 Kanals 02 Marlas, 40 Kanals 09 Marlas total 131 Kanals 11 Marlas, sale deeds dated 06.03.2010, 13.05.2010, 05.01.2011, 07.01.2011, 07.01.2011, for 48 Kanals 06 Marlas , 35 Kanals through the husband of accused No.1 as attorney Sale deed dated 15.09.2017 in favour of Divya Suraj Partap Singh whereby total land of 328 Kanals 19 Marlas was acquired by R.B Education Trust in violation of section 14 of Agrarian Reform Act providing ceiling limit of 100 kanals.
The circular of Divisional Commissioner provided that while preparing copies of revenue extracts the concerned Patwari had under law to endorse a detailed note that the land was not owned and acquired in excess of ceiling limited of 12 Ya standard acres in violation of Agrarian Reforms Act1976: the sale is not in contravention of the J&K Alienation of Lands Act Svt. 1995 (1938 AD), J&K Land Revenue Act Svt. 1996 (1939 AD), Agrarian Reforms Act 1976, Big landed Estates Abolition Act, Svt. 2007 (1950 AD) Prohibition of Conservation of land or Orchards Act, 1975, common Land Regulation Act 1956, J&K State Lands (Vesting of ownership to the occupants) Act, 2001 (Roshni Act) etc. or does not defeat any provision of law for the time being in force, besides other stipulations.
The investigation further revealed the then Patwari Ravinder Singh accused No.2 in conspiracy and in pursuance of the conspiracy with accused No.1 by abusing his official position without mentioning the details facilitated the acquisition of land by accused in favour of R.B.Trust with dishonest intention and falsely mentioning that there was no effect on the provisions of law under the aforesaid Acts. The accused No.2 also wrongly facilitated the attestation of mutation in violation of Agrarian Reforms Act misusing his official position knowingly on incorrect information provided by him. Three Fards were issued by him in criminal conspiracy with accused No.1 i.e how the case was registered.
The investigation was conducted and the offences aforementioned were found to have been committed by the accused on the basis of investigation conducted by the CBI officials. It was further revealed that since a wrong affidavit has been filed before the High Court so appropriate proceedings for seeking sanction for prosecution of the accused were also instituted for action under 195 Cr.P.C.
Special Judge CBI RK wattal after hearing both the sides observed that in absence of any order under section 14 of Agrarian Reforms Act it cannot be said that the person who is guilty of holding the land in excess of the ceiling area has committed the offence under ordinary penal or special provisions. Moreover, a distinction has to be made between the voluntary acquisition of land and the involuntary occupation of the same as regards the unit to fix the liability under law for the trust or its functionaries. In the instant case as per the letter dated 05.03.2013 under No. DCK/ARA/2012-13/503-04 issued by Deputy Commissioner Kathua notice has been issued to the accused as Chairperson of the trust on the direction of PIL of 19/2011 after a report was sought from the Tehsildar Hiranagar and this notice was challenged before the Hon’ble High Court on the ground of competency and jurisdiction of DC Kathua who accepted the objections where after the case was transferred to ACR Kathua for passing of fresh
order.
It has been given to understand that no order conclusively and finally has been passed by ACR Kathua or the Government under the Act so as to attract the Penality Provisions. The same aspect was also discussed and decided in a famous case decided Supreme Court of India in State Of Punjab (NowHaryana) And, … vs Amar Singh And Another on 21 January, 1974, V Krishnaiyer Bench: Krishnaiyer while interpreting the law pertaining to surplus land of the land holder while discussing the Scope of Interpretation of Statutes of Ss.10A and 18–. under Punjab Security of Land Tenures Act (10 of 1953) “It was found by the Collector (Surplus Area) that the leases in question have been collusively got up to dwindle the surplus area of the landowner and that the landowner had conspired with her son-in-law and big brother to retain the area in contravention of the law. Further, S. 18 applies only to persons who are legally tenants. In the present case’ the lease was granted by the landowner after gifting the property to her daughter. Also, the section requires 6 years continuous occupation by the tenant; but the Collector found that the respondents had not completed the period at the time of their application under S. 18. The order in fact is thus a nullity. Therefore, it could not be contended that the orders of purchase in favour of the respondents passed by the concerned officer under S. 18 had become final and not having been set aside bind the other authority determining the surplus area”
The Apex Court dismissed the appeal of the State holding that though involuntary transfers do not attract the provisions of violation of law prohibiting acquisition of excess of land but the land acquired by way of tenancy or lease can also be included in the ceiling area. The spirit of the law of interpretation of statute is that excess of land should go to tenants that is why it was wrong interpretation to hold that ACR lacked the competence to decide the land in excess of the ceiling area.
It has been submitted that a false affidavit came to be filed before the High Court on behalf of District Collector in which the excess of land coming under orchard/ the type of land carving out an exception of Agrarian Reforms Act was urged which as per prosecution was wrong and the matter is under investigation before CBI.
No order has been passed by ACR so far nor any enquiry done for final conclusion by the competent authorities under Agrarian Reforms Act. Thus question will arise whether the provisions of P.C.Act should be invoked directly suomoto holding that violation of section 14 of Agrarian Reforms Act is violation of P.C.Act 1988 when no such order in fact has been passed as yet by collector ACR Competent to pass such order and take action under Ag.Ref. Act for land in excess of ceiling limit.
Court further observed that suppose in a case the attesting authority on the report of an officer competent under section 18 of Agrarian Reforms Act attests the mutation dehors the provisions of Agrarian Reforms Act or rules made thereunder or in defiance of fundamentals of judicial proceedure in which the action is initiated on the act done by patwari verified by Girdawar in violation of standing order 23 A the provisions governing attestation of mutations or the land is mutated in violation of the conditions of section 7,8 or 12 of the Act outraging the provisions of law.
Will the officers responsible for the same be booked under PC Act or they will face action under departmental rules and illegality in such mutations shall entail their cancellation or vesting of land in violation of section 7,8,12,13, 28A in state. These are the points of consideration which call for an appropriate answer after a thorough probe . It has to be ascertained as to whether the reporting or attestation has been done with ulterior motives against the monitory consideration or bungling or illegal act done by the accused working concurrently for same period in their respective field.
In such a case also the question arises whether an action directing passing of an order and consequent action for escheating the land in favour of state will be resorted to or the case will be closed by booking the accused under section 5(d) PC Act letting him to appropriate the whole of the land exceeding the ceiling limit in gross violation of Agrarian Reforms Act which is required to be allotted to landless peasantry in the order envisaged under Agrarian Reforms Act by dispensing with the requirement of law of order required to be passed in this behalf. Such a violation demands snatching excess land in excess of ceiling limit from the land holder and allotting the same to the rightful persons under Section 13 /14/Ag ref . Act after giving the person / owner concerned the reasonable opportunity of being heard as to the option of choosing or adopting which land and divesting him of the excess of which land. On all those points a proper order under Agrarian Reforms Act is required to be passed reflecting the detailed background as to how the excess land has to be dealt under law . The recommendations and the reports are required to be considered for passing the final order under law by the competent authority under law. Otherwise the reports and advices are of recommendatory or directory in nature till they are relied upon by the competent authority under Ag. Ref. Act for passing of such order under section 14 of Agrarian Reforms Act which only has the force of law of declaring any act in violation of the statute of section 14 of Agrarian Reforms Act. Any action of report or advice shall be deemed to be premature as the court can not substitute its own finding on the reports or documents to the findings of competent Agrarian Authority which if contrary may nullify such a finding in the eyes of law .
Court observed that the matter requires further probe at par with the investigation which has already been ordered against the officers who have allegedly filed false affidavit before the High Court and also till the final decision is made by the Collector the competent officer having jurisdiction to pass order under section 14 of Agrarian Reforms Act 1978.
Until that final order is passed the statements of the witnesses recorded or the recommendatory reports of revenue committees and agrarian agencies concerned the material which are short of finality of the order formally declaring the accused liable for violation of section 14 of Agrarian Reforms Act and which are yet to fructify in final order of collector ACR the authority competent under law to pass such order ,will legally be deemed to have been not warranting conviction ,a criteria for limited purpose of sifting the evidence to proceed against the accused which can be considered and looked into on completion of further investigation/ enquiry. This aspect of the case is shown to have been either overlooked or completely ignored warranting re-investigation on all the aspects as stated above and granted four months time for re-investigation under the supervision of SP CBI concerned. The same is ordered accordingly. JNF