A Judgment dealing with alienation of assigned lands

 

Telangana High Court

Dantuluri Avinash And 7 Others vs The State Of Telangana And 5 Others on 5 June, 2023

Author: K. Lakshman

Bench: K. Lakshman

          HON'BLE SRI JUSTICE K. LAKSHMAN

              WRIT PETITION No.6844 OF 2022


ORDER:

Heard Sri Vedula Venkata Ramana, learned senior counsel representing M/s.Bhardwaj Associates, learned counsel for the petitioners and Sri Harender Pershad, learned Special Government Pleader attached to the office of learned Advocate General for the respondents. Perused the record.

2. This Writ Petition is filed seeking to declare the endorsement of Respondent No.2-District Collector, Sangareddy District, contained in letter No.D1/829/2020 dated 20.10.2021 rejecting to delete the land admeasuring Ac.28.22 Guntas in Survey No.146 of Kothlapur Village, Sangareddy District (hereinafter referred as to 'the subject land') from the list of prohibited lands under Section 22(A) of the Registration Act, 1908 as illegal and to set aside the impugned endorsement.

3. The petitioners are claiming that they have purchased the subject land in Survey No.146 of Kothlapur Village, Sangareddy Mandal and District, under different registered sale deeds (pending registration). The details of the extent, survey number, etc., are specifically mentioned in a tabular form of this writ affidavit.

4. When the registration of the sale deeds was kept pending on account of the endorsement contained in letter No.D1/829/2020 of respondent No.2-District Collector, petitioners have filed writ petitions vide W.P.No.9880 of 2021 and batch. Vide Order dated 28.04.2021, this Court disposed of the said writ petitions setting aside the impugned endorsement and remitted the matter back to respondent No.2-District Collector to consider the issue of deletion of the subject land from the list of prohibitory properties uninfluenced by the decision dated 18.01.2021 communicated vide endorsement dated 03.04.2021. This Court further observed that it is open to the petitioners to place before respondent No.2-District Collector any additional submissions and the legal position as it stands now, within two (2) weeks from the date of receipt of a copy of the said Order. Respondent No.2-District Collector shall consider the claim of the petitioners objectively, including additional submissions, if any, made, and take a decision as warranted by law duly considering the submissions of the petitioners and by assigning reasons in support of the decision. The entire exercise shall be completed within six (6) weeks from the date of receipt of a copy of the said order.

5. In compliance with the said Order, respondent No.2-District Collector vide endorsement contained in letter No.D1/829/2020 dated 20.10.2021 rejected the request made by the petitioners seeking deletion of the said subject land from the prohibitory list. Impugning the said endorsement, the petitioners have filed this Writ Petition.

6. Vide Order dated 21.04.2022 in I.A.No.1 of 2022 in W.P.No.6844 of 2022, this Court granted interim Order directing the respondents to register the pending sale deeds concerning the subject land and release the registered sale deeds. However, such registration shall be treated as a provisional one and the same shall be subject to the outcome of this Writ Petition. The petitioners are directed not to alienate the subject land without permission of this Court.

7. Feeling aggrieved by the said interim Order, the petitioners herein have preferred an appeal vide W.A.No.420 of 2022. Vide Order dated 20.07.2022 a Division Bench of this Court dismissed the said writ appeal with an observation that the pleadings are complete and therefore a request can be made to this Court to hear and decide the related writ petition expeditiously.

8. Both Sri Vedula Venkata Ramana, learned senior counsel appearing for the petitioners and Sri Harender Pershad, learned Special Government Pleader attached to the office of learned Advocate General made their submissions extensively and also placed reliance on the Judgments, which will be considered in the below paragraphs.

9. The contentions of Sri Vedula Venkata Ramana, learned senior counsel appearing for the petitioners are fourfold and the same are as follows:

i) To apply the provision contained in Section 22(A) of the Registration Act, 1908 and consequently prohibit the registration of sale of the assigned lands by the Government to landless poor persons subject to the condition of non-

alienation.

ii) Impugned endorsement of respondent No.2 only refers to the Special Laoni Rules of Laoni Rules, 1950, which are issued under Section 172 of the Telangana Land Revenue Act 1317 Fasli. The Laoni Rules do not anywhere specify that the grant thereunder is non-alienable. The rules are to be read in conjunction with Section 58 of the Telangana Land Revenue Act 1317 Fasli.

     iii)   The     reasons    mentioned        in     the     impugned

            endorsement       is        more   in    the     nature      of

imagination/assumption. There is no condition of inalienability in the grant of the year 1953. If any condition of inalienability was incorporated, it could have got mentioned in the impugned endorsement. Further, the reasons mentioned in the impugned endorsement are baseless.

iv) There is no consideration of the observations/findings and directives given by this Court in the Order dated 28.04.2021 in W.P.No.9880 of 2021.

10. Sri Harender Pershad, learned Special Government Pleader representing learned Advocate General contended as follows:

i) The lis involved in the present writ petition is clearly covered by the Judgment dated 31.12.2021 in W.P.No.202 of 2010.

ii) The assignment was made to the original assignees in the year 1953 exercising powers vested in Government under Section 172 of Andhra Pradesh (Telangana Area) Land Revenue Act, 1317 Fasli.

iii) In the case of land assignment under Laoni Rules, the auction is conducted in respect of the land to be assigned and highest bidder in the laoni auction is given the patta certificate.

iv) In the case of land assigned under Special Laoni, the beneficiaries are selected by the Tahsildar concerned, who are poor landless persons who could not participate in the laoni auction and purchase the land.

v) In the present case, the land being claimed by the petitioners, was originally assigned under Special Laoni Rules under Laoni Rules, 1950 which were on free of cost and meant for bringing up the land to agricultural use and to provide livelihood to the assignees by way of agriculture.

vi) Thus, the lands in question are assigned by Government to the poor landless persons on free of cost and shall be treated as Government land. Therefore, the same are placed under the prohibitory properties.

vii) The said aspects were considered by respondent No.2 in the impugned endorsement. He has issued the impugned endorsement by considering the observations, findings and directives of learned Single Judge in the Order dated 28.04.2021 in W.P.No.9880 of 2021 and there is no error in it.

11. In view of the aforesaid rival submissions, the only issue to be considered is:

Whether the inclusion of the subject property under the prohibitory list by respondent No.2-District Collector is in accordance with law and also the law laid down by this Court, if any, to what relief the petitioners are entitled ?

12. It is relevant to note that when the subject land was mentioned in the prohibitory list, the petitioners have filed writ petitions vide W.P.No.9880 of 2021 and batch. This Court disposed of the said writ petitions vide Order dated 28.04.2021 considering the rival contentions of the parties and also the principle laid down by this Court in various writ petitions. Relevant paragraphs of the said Judgment are extracted below:

"18. The view taken by the Division Bench in Letter sent from Plot No. 338 and view taken by learned single Judge in Akkem Anjaiah is consistently followed. Therefore, prima facie, there is merit in the contentions of the learned senior counsel. It is not in dispute that Loani Rules, 1950 did not prescribe the non-alienation condition on assigned land. This was introduced for the first time in the year 1958. Prima facie, unless a notification under Section 58-A of Telangana Area Land Revenue Act was issued, no restriction can be imposed on alienation of the land. Further, as held in Akkem Anjaiah the District Collector can not shift the burden on petitioners to prove that there was no non-alienation clause. As held by this Court in the decisions noted above, prior to1958 there was no restraint on alienation of assigned land. If that is so, it is not just and proper to harass subsequent purchasers by merely looking into status of land as SARKARI. The District Collector ought to have conducted the enquiry more objectively.

19. Therefore, it is apparent from the material placed on record that there was no proper exercise undertaken by the District Collector. He ignored material on record without recording reasons. By merely referring to the status of the land as Government land, and pattas were granted under the Laoni Rules, the claim was rejected. It thus amounts to non application of mind.

20. The District Collector ought to have looked into the reports of the Tahsildar and the Revenue Divisional Officer. If he was not satisfied by those reports, he ought to have thoroughly looked into the record independently to form an opinion on the status of the land. It is within his competence to refuse to delete the subject land from the prohibited list of properties if laoni patta was burdened with non-alienation clause. As held by this Court in Akkem Anjaiah, the District Collector cannot shift the burden on applicants to prove non-alienation clause, more so, when in the first round transactions were allowed to be registered. The District Collector has also not looked into the provisions of the Telangana Area Land Revenue Act and the Laoni Rules and the law declared by this Court. He failed in discharging his statutory obligations effectively.

21. Having regard to the law laid down by this Court as affirmed by the Hon'ble Supreme Court, it is elementary for the District Collector to thoroughly verify the record to ascertain as to how patta was granted to the vendors of vendors of petitioners under Laoni Rules while considering the request of petitioners to delete the subject extents of land from prohibited list.

22. In the representation made by the petitioner in W.P.No. 9988 of 2021 on 12.3.2021 though he was trying to make a claim that patta was granted to the vendor under Rule 9 in Form-G and there was no non- alienation clause, he has not placed before the Collector the pattas granted to vendors of vendors of petitioner nor has he highlighted the legal position as evolved by several decisions of this Court as sought to be urged in these writ petitions. Same is the case with other petitioners.

23. Having regard to the infirmities noticed in the decision making process, the learned Senior Counsel for petitioners and the learned Assistant Government Pleader agree to remand the matters to the District Collector to consider the issue denovo.

24. Having regard to said submissions, the impugned endorsements are set aside and matters are remitted to the District Collector to consider the issue of deletion of subject properties from the list of prohibited properties uninfluenced by the decision dated 18.01.2021 communicated vide endorsement dated 03.04.2021. It is open to petitioners to place before the District Collector any additional submissions and the legal position as it stands now, within two weeks from the date of receipt of copy of this order. The District Collector shall consider the claim of the petitioners objectively, including additional submissions, if any, made, and take a decision as warranted by law duly considering the submissions of petitioners and by assigning reasons in support of the decision. The entire exercise shall be completed within six weeks from the date of receipt of copy of this order."

13. It is also relevant to note that a Division Bench of this Court in State of Telangana, represented by its Principal Secretary, Revenue Department v. Dakoji Durgapathy 1 had an occasion to deal with the subject matter including provisions of Assigned Lands (Prohibition of Transfers) Act, 1977 (for brevity 'POT Act') and Laoni Rules. In the said case, assignment of lands was not under the Laoni Rules, 1954 and there was no condition of non- alienation. On examination of the facts therein and also considering the provisions of the POT Act and Laoni Rules, Division Bench held that a land to be treated as an assigned land, within the meaning of POT Act, should be burdened with a condition of non-alienation. In the absence of the said clause, the property cannot be included in the prohibitory list.

14. Assailing the said Judgment dated 10.08.2021 in W.A.No.91 of 2020, the State has preferred a Special Leave to Appeal (C) No.8615 of 2022 before the Hon'ble Supreme Judgment dated 10.08.2021 in W.A.No.91 of 2020 Court and the same was dismissed as withdrawn with liberty to file review petition vide Order dated 10.10.2022.

15. In Dasari Narayana Rao v. Deputy Collector and Mandal Revenue Officer 2, learned Single Judge of High Court of Andhra Pradesh, considered the conditions of POT Act, 1977 in paragraph no.43 and the same is relevant, so, extracted below:

"43. From the text of Form-G, the inference is compelling that prior to the revised assignment policy (1958), under the unamended 1950 Rules, the assignment could be with or without a condition as to prohibition of alienation. If the assignment specified a prohibition, then and then alone must a grantee not transfer the occupancy without the previous sanction from the Collector."

16. In Government of Andhra Pradesh, represented by its Secretary v. Mallarapu Jangaiah 3 (W.A.No.202 of 2010 dated 31.12.2021) a Division Bench of this Court considering the fact that the land in question 2010 (4) ALT 655 2021 SCC Online TS 1846 was having a clause restraining the grantee to transfer the land without previous sanction of the Collector. No sanction was obtained at any point of time and therefore the same cannot be transferred.

17. In view of the same, few provisions of the relevant acts for the purpose of deciding the lis in this writ petition such as Section 58 of the Land Revenue Act (Act No.VIII of 1317 Fasli) is relevant and the same is extracted:

58. An occupancy right to land shall be deemed to be heritable and transferable.

58-A (1). Notwithstanding anything contained in the preceding section the Government may by [Official Gazette] notify the respect of any village or tract of [the area to which this Act extends] that the right of occupation of any land under section 54 given after the date of the notification shall not be transferable without obtaining the previous sanction of the [xxx] [Collector] [xxx].

18. In exercise of the powers conferred by Section 172 of the A.P. (Telangana Area) Land Revenue Act, 1317 Fasli, Laoni Rules, 1950 were issued and Rules 15 to 24 are relevant, the same are extracted below:

"15. No lands in the special area notified under Section 58-A of A.P. (Telangana Area) land Revenue Act, shall be assigned except in accordance with the following rules:--

(a) The object of the special laoni is to make land available in certain areas to such landless persons of agricultural and backward classes as may be notified from time to time, and who have not sufficient means to purchase land either at the ordinary laoni auctions or otherwise. The selection of the most deserving applicant should be made by Tahsildar after due publicity in the village or at the place fixed for the allotment proceedings.

(b) Special laoni, proceedings may ordinarily take place twice a year in the months of April and September, and may also take place at other times when the Tahsildar is visiting the locality.

16. In making selection for special laoni preference shall be given to persons who reside in the village, but do not possess any patta or shikmi rights in any land in the village or elsewhere or who have insufficient land but possess bullocks and agricultural implements. Persons who are already cultivating lands are 'asamis' or 'bataidars' shall be given preference over other labourers.

18. The selection by the Tahsildar of any person for special laoni shall be confirmed by the Collector within a month from the date of the proposal for such selection, after satisfying himself that there has been no material irregularity in the proceedings.

19. The allottee of the land shall prepare the land for cultivation within three years of being placed in possession and commerce cultivation of the land thereafter. The pattadar may be rejected by the order of the Collector for breach of any of the above conditions :

Provided that he has been served with a notice calling upon him to comply with the conditions which he has violated and he fails to comply with it within three months of the date of service thereof. If lands has been transferred in contravention, the conditions, the Collector may eject the transferee.

20. After sanction has been accorded by the Deputy or Assistant Collector in the case of ordinary laoni and by the Collector in the case of special laoni, the Tahsildar shall obtain an agreement from the person to whom land is to be allotted and after recovering any amounts due shall give him permission in writing to occupy the land.

23. The special laoni provisions shall apply to all applications for assessed land which are not reserved. The Tahsildar may grant pattas under the rules laid down above.

24. A register shall be maintained as in Form I in respect of all lands granted under Special Laoni Rules."

This procedure is prescribed in Laoni Rules.

19. Section 2(1) of POT Act deals with definition of assigned land and it is extracted below:

2. Definitions:- In this Act, unless the context otherwise requires,-

1) "assigned land" means [lands or house sites assigned] by the Government to the [landless or homeless poor persons] under the rules for the time being in force, subject to the condition of non-

alienation and includes lands allotted or transferred to landless or homeless poor persons under the relevant law for the time being in force relating to land ceilings; and the word "assigned" shall be construed accordingly.

20. Therefore, to declare or treat a land to be assigned land within the meaning of assigned land as per POT Act, there should be a condition of non-alienation. In the earlier endorsement dated 18.01.2021 there is no consideration of the aforesaid rules and law laid down by this Court in the above referred Judgments. Therefore, this Court vide Order dated 28.04.2021 in W.P.No.9880 of 2021 and batch directed respondent No.2-District Collector to consider the said aspects and decide the said matters afresh.

21. Sri Harender Pershad, learned Special Government Pleader representing learned Advocate General has produced kasra pahani for the year 1954-1955, in respect of the subject land, wherein it was mentioned that land in Sy.No.146 (Old Survey No.243) of Kothalapur, Sangareddy District, is a gairan land. He has also filed copy of District Collector file No.A/1/375/52 along with notes and list of 27 serial numbers in respect of said property i.e., land in Survey No.146 (old No.243), wherein, it was mentioned that land in Survey No.146 of Kothalapur Village admeasuring 251.22 is 'gairan' and 26 families, their details are mentioned therein, as they belongs to BC (Backward Class), they may be given land shown there and the recommended acreage of land given is figured adjacent to their names. The said recommendation was agreed on 16.08.1952. Referring to the same, learned Special Government Pleader would submit that the said assignment was made under Special Laoni Rules and the object of the same is to make land available in certain areas to such landless persons of agricultural and backward classes as may be notified from time to time, and who have no sufficient means to purchase land either at the ordinary laoni auctions or otherwise. The selection of the most deserving applicant should be made by the Tahsildar after due publicity in the village or at the place fixed for the allotment proceedings.

22. Laoni Rules, 1950 are very clear that when the land is occupied with prior written permission of the competent authority on payment of an up-set price equal to 16 times of the land revenue, the permanent patta will be granted and the same will be treated on par with the other patta lands and can be transferred.

23. On the other hand, the Government had made special provisions under the Special Laoni Rules for the landless persons and backward classes, who are not capable of purchasing lands in laoni auctions wherein the lands will be assigned to such persons on free of cost so as to bring the Government vacant lands into cultivation and providing livelihood to the landless persons. The said lands are not alienable as the very purpose of bringing the Special Laoni Rules in existence is to provide opportunity to do agriculture and to derive its benefits from the lands so assigned. If the lands are made alienable, the very objective of the Government to provide lands to the landless persons will be defeated. The title of the said lands always vests with the Government and they are prohibited from alienation to the third parties. Therefore, considering the said aspects respondent No.2-District Collector rejected the request made by the petitioners.

24. It is relevant to note that the scope and ambit of the Telangana Area and Land Revenue Act, and Laoni Rules was considered, in letter sent from plot No.338 by a Division Bench of this Court. On consideration of the same and also G.O.MsNo.1406 dated 25.07.1958, the Division Bench held that unless a notification is issued as required by Section 58-A of the Act in respect of any village or tract that right of occupation in land under Section 54 of the Act given after the date of notification shall not be transferable without obtaining previous sanction of the Collector, no restriction can be imposed on alienation.

25. In Akkem Anjaiah v. Deputy Collector and Tahsildar, Saroornagar Mandal, Rangareddy District 4 considering Mr.Maqdom Shareef was assigned land on 20.12.1956 under the Laoni Rules, 1950. The said assignee sold the land in favour of the petitioners therein under 2011 (5) ALT 420 registered sale deed dated 17.02.1967. Alleging that sale was in violation of the assignment conditions, show cause notice was issued on 14.02.2008 to show cause why land should not be resumed under the provisions of Act 9 of 1977. The petitioners therein contended that even if the land was treated as assigned under the Laoni Rules, much before G.O.Ms.No.1406 dated 25.07.1958 was issued, there can be no restriction on alienation. Considering the said aspects learned Single Judge held that in the absence of non-alienation clause, placing the said property in prohibitory list is illegal. Challenging the said order, an appeal vide W.A.No.1728 of 2013 was filed and the same was dismissed by Division Bench confirming the Judgment of the learned Single Judge. Special Leave Petition (Civil) No.12198 of 2016 preferred against the Writ Appeal was also dismissed by Hon'ble Supreme Court on 07.10.2016.

26. Considering the said aspects, in the Judgment dated 28.04.2021 in W.P.No.9880 of 2021 and batch, this Court directed respondent No.2-District Collector to conduct thorough enquiry and pass appropriate orders in accordance with law. There is no consideration of the principle laid down in the aforesaid Judgment and the only contention of respondent No.2-District Collector is that the assignment was under Special Laoni Rules, therefore the subject land cannot be alienable and if the subject land is alienated, the very object of the Laoni Rules will be defeated. The Government is having right over the subject land. Therefore, the impugned endorsement is in not on consideration of the aforesaid principle, findings and directives of this Court in the aforesaid Order dated 28.04.2021 in W.P.No.9880 of 2021.

27. As rightly contended by Sri Vedula Venkata Ramana, learned senior counsel appearing for the petitioners, the rules do not anywhere specify that the grant thereunder is non-alienable. The rules are to be read in conjunction with the Telangana Land Revenue Act 1317 Fasli and Section 58 of POT Act.

28. An occupancy right to land shall be deemed to be heritable and transferable. In Section 58(A) of the POT Act which is applicable to the notified areas, the occupancy is not transferrable without obtaining the previous sanction of the Collector. Therefore, the parent statute clearly specifies laoni rules, shall be heritable and transferrable. Thus, the parent statute i.e., Telangana Land Revenue Act permits transferability of the occupancy. The Special Laoni Rules are part of Loani Rules, 1950. Rules 15 to 20 do not contain any condition of non-alienability. On a combined reading of the Telangana Land Revenue Act, 1317 Fasli, Laoni Rules, 1950 and Section 5 of POT Act, it is crystal clear that in the case of grant under Laoni Rules or Special Laoni Rules, there is any statutory prescription of condition of inalienability of the land covered by the Laoni patta or special laoni patta. Therefore, in respect of the subject properties section 22A(1)(a) of the Registration Act did not attract. The said principle was also held by two division benches viz., Letter sent from Plot No.338, Parvant Nagar, Hyderabad v. The Collector and District Magistrate, Rangareddy District 5 and State of Telangana (1 supra).

29. There is no mention about the condition of non- alienability in grant of the year 1953 in the impugned endorsement as held by this Court in W.A.No.91 of 2020 dated 10.08.2021. The Government is the custodian of the record and if any condition of non-alienability is incorporated, it get mentioned in the impugned endorsement. There is no such mention in the impugned endorsement. Thus, viewed from any angle, the impugned endorsement is not on consideration of the aforesaid provisions of law and the principle laid down in the aforesaid Judgments. Therefore, the impugned endorsement is liable to be set aside.

30. Accordingly, the impugned endorsement of Respondent No.2-District Collector, Sangareddy District contained in letter No.D1/829/2020 dated 20.10.2021 is (2008) 5 ALT 313 (DB) set aside. However, Respondent No.2-District Collector shall take steps to delete subject land from the prohibitory list as expeditiously as possible, preferably within a period of four (4) weeks from the date of receipt of a copy of this Order, so that respondent Nos.4 to 6 shall entertain the registration in respect of the subject land.

31. With the aforementioned observations, this Writ Petition is disposed of. As a sequel, miscellaneous petitions, if any, pending in this Writ Petition shall stand closed.

__________________ K. LAKSHMAN, J 05.06.2023 YNK HON'BLE SRI JUSTICE K. LAKSHMAN WRIT PETITION No.6844 OF 2022 Dated 05.06.2023 YNK

Suit for declaration of title and injunction, Suit for declaration of title and recovery of possession and Suit for recovery of arrears of rent.

 

When to file suit for injunction and when to file suit for declaration of title and injunction

 

A petition under Section 34 of the Arbitration Act, 1996 may be filed dependent on where the seat of arbitration is located.

 IN THE SUPREME COURT OF INDIA

                                         CIVIL APPELLATE JURISDICTION
                                         CIVIL APPEAL NO. 9307 OF 2019
                                  (ARISING OUT OF SLP (CIVIL) NO.25618 OF 2018)
                         BGS SGS SOMA JV                                …Petitioner
                                                          Versus
                         NHPC LTD.                                      …Respondent
                                                    WITH
                                         CIVIL APPEAL NO. 9308 OF 2019
                                 (ARISING OUT OF SLP (CIVIL) NO. 25848 OF 2018)
                                                    WITH
                                         CIVIL APPEAL NO. 9309 OF 2019
                                 (ARISING OUT OF SLP (CIVIL) NO. 28062 OF 2018)
                                                    JUDGMENT



100.However, the fact that in all the three appeals before us the proceed- ings were finally held at New Delhi, and the awards were signed in New Delhi, and not at Faridabad, would lead to the conclusion that both parties have chosen New Delhi as the “seat” of arbitration under Section 20(1) of the Arbitration Act, 1996. This being the case, both parties have, therefore, chosen that the Courts at New Delhi alone would have exclusive jurisdiction over the arbitral proceedings. There- fore, the fact that a part of the cause of action may have arisen at Faridabad would not be relevant once the “seat” has been chosen, which would then amount to an exclusive jurisdiction clause so far as Courts of the “seat” are concerned.
101.Consequently, the impugned judgment is set aside, and the Section 34 petition is ordered to be presented in the Courts in New Delhi, as was held by the learned Single Judge of the Special Commercial Court at Gurugram.
102.The appeals are allowed in the aforesaid terms.

Apex Court founds a Police Officer and an Addl. CJM guilty of having committed contempt of its anticpatory bail order. Inspite of release on anticpatory bail, police cusotdy petition filed by Police Officer and allowed by Addl. CJM

 IN THE SUPREME COURT OF INDIA 

INHERENT/CRIMINAL APPELLATE JURISDICTION 

CONTEMPT PETITION(CIVIL) NO(S). OF 2024 (D. No. 1106 OF 2024)

 IN SPECIAL LEAVE PETITION(CRL.) NO(S). 14489 OF 2023

 TUSHARBHAI RAJNIKANTBHAI SHAH …..PETITIONER(S)

 VERSUS 

KAMAL DAYANI & ORS. …RESPONDENT(S)/ ALLEGED CONTEMNOR(S)

Discussion: - 28. Before proceeding to consider the rival submissions, at the outset, we may note that a bare perusal of the order under contempt dated 8th December, 2023 would leave no room for doubt that the interim protection of anticipatory bail granted by this Court to the petitioner was absolute, until modified or altered upon final disposal of the Special Leave Petition(Crl.) No. 14489 of 2023 which is still pending consideration before this Court. The language of the order was clear and unambiguous, hence, none of the contemnors-respondents could have entertained any doubt in their minds nor was there any scope for the interpretation that the petitioner could be remanded to police custody during the currency of the interim order dated 8th December, 2023

48. Criminal jurisprudence requires that before exercising the power to grant police custody remand, the Courts must apply judicial mind to the facts of the case so as to arrive at a satisfaction as to whether the police custody remand of the accused is genuinely required. The Courts are not expected to act as 60 messengers of the investigating agencies and the remand applications should not be allowed in a routine manner. 

49. As discussed above, the FIR against the accused-petitioner was pertaining to a dispute which prima facie appears to be of a civil nature and hence, the learned Magistrate ought not to have toed the line of the Investigating Officer while granting police custody remand of the accused-petitioner.

54. We, prima facie feel that the contemnor-respondent No. 7 seems to have acted in defence of the police officials when she made a note on the complaint of custodial violence made by the petitioner on 16th December, 2023, that after personally examining the feet of the accused, she did not find any injury thereupon. Law requires that the moment the accused had made a complaint of torture in police custody, it was incumbent upon the concerned Magistrate to have got the accused subjected to medical examination as per the mandate of Section 54 CrPC. The formal complaint lodged by the petitioner herein was proceeded with by 8th Additional Chief Judicial Magistrate who took cognizance thereof on 22nd December, 2023 and directed that the complaint be posted for verification. The only permissible action as per law after cognizance had been taken on a private complaint, would be to record the statements of the complainant and his witnesses by taking recourse to the mandatory procedure prescribed under Sections 200 and 202 CrPC. However, in sheer disregard to the order dated 22nd December, 2023 passed by 8th Additional Chief Judicial Magistrate, the 6th ACJM(contemnor-respondent No.7) dismissed the complaint filed by the petitioner vide order dated 6th January, 2024 which has been rightly reversed by the High Court of Gujarat vide order dated 22nd February, 2024 passed in R/Criminal Revision Application No. 273 of 2024. This conduct of contemnor-respondent No. 7 gives a strong indication of her biased approach in the matter.  

55. The arguments advanced by learned senior counsel appearing for the Additional Chief Secretary, Government of Gujarat as well as the High Court of Gujarat about the long-standing practice prevailing in the State, that the Investigating Officer(s) are given liberty to seek police custody remand of the accused after competent Court has granted anticipatory bail does not appeal to us for a moment. Such an interpretation does not appear to be in 64 consonance with the unambiguous position of law.

59.3 That the Investigating Officer, contemnorrespondent No. 4, Police Inspector acted in flagrant defiance and gross contempt of this Court’s order dated 8th December, 2023 by applying for police custody remand of the petitioner herein. The portrayal 69 made by the Investigating Officer in the remand application to claim that the accused-petitioner was not cooperating in the investigation was totally cooked up and a clear attempt to draw wool over the Court’s eyes. During subsistence of this Court’s order dated 8th December, 2023, there was neither any authority with the Investigating Officer to seek police custody remand of the accused nor was the prayer for remand justified in the backdrop of the fact that the FIR itself was lodged in relation to a civil dispute which arose from an oral agreement for sale of property. A clear misrepresentation was made in the remand application wherein, the Investigating Officer projected that the cheques issued by the accused-petitioner had to be recovered. It is an admitted position as per the FIR, that the cheques had been issued by the complainant to the accused-petitioner and not vice versa. By failing to test the truth of the complainant’s allegations regarding transmission of huge cash amount to the tune of Rs. 1.65 crores to the accused, the Investigating Officer acted in sheer ignorance to 70 the mandate of the Income Tax Act, 1961 as well as the provisions of PMLA. Admittedly, the Investigating Officer(contemnor-respondent No. 4) had only made investigation from the accused for a few hours on 12th December, 2023 and immediately thereafter, the police custody remand application came to be submitted. The notice for remand to the accused on 12th December 2023 does not indicate that he had not cooperated in the investigation. We are, therefore, inclined to hold that there was not even a shred of bona fide in the actions of the Investigating Officer(contemnor-respondent No.4) while seeking police custody remand of the accused on the purported ground of non-cooperation in investigation. The exercise of seeking police custody remand during currency of the interim protection granted to the petitioner was in sheer defiance of this Court’s order dated 8th December, 2023 and tantamounts to contempt on the face of the record. Hence, we have no hesitation in holding that while seeking for and procuring the police custody remand 71 of the accused in the teeth of the order dated 8th December, 2023, the Investigating Officer, R.Y. Raval, Police Inspector, Vesu Police Station, Surat(contemnor-respondent No. 4) is guilty of gross contempt. 

59.4 That the explanation offered by 6th ACJM(contemnor-respondent No.7), that the order dated 13th December, 2023 granting police custody remand of the petitioner was passed in the bona fide exercise of jurisdiction, based on a genuine misunderstanding of the legal position does not appeal to us. In view of the findings recorded in preceding paras, it is clear that contemnor-respondent No. 7 acted with bias and in a high-handed manner while granting police custody remand of the accused. The reason offered by her that she was acting under a misconception owing to settled and prevailing practice in the State of Gujarat, is clearly in disregard to the order passed by this Court. The said plea does not hold water since the order under contempt dated 8th December, 2023 allowed only one interpretation i.e. 72 the accused-petitioner had to be released on bail in the event of arrest. The action of the contemnorrespondent No.7 in granting police custody remand of the petitioner and in failing to release him upon completion of the aforesaid period is clearly in teeth of this Court’s order dated 8th December, 2023 and tantamounts to contempt. The contemnor-respondent No. 7’s contumacious actions also contributed to the illegal detention of the petitioner for almost 48 hours after the period of police remand had come to an end

61. As a result of the above discussion, we hold R.Y. Raval, Police Inspector, Vesu Police Station, Surat(contemnorrespondent No.4) and Deepaben Sanjaykumar Thakar, 6 th Additional Chief Judicial Magistrate, Surat(contemnorrespondent No.7) guilty of having committed contempt of this Court’s order dated 8 th December, 2023. 

Supreme Court Pauses 'Bulldozer Actions', Orders That No Demolition Should Take Place Without Its Permission - However it does not apply to illegal encroachment of roads water bodies etc.,

S U P R E M E C O U R T O F I N D I A 

Writ Petition(s)(Civil) No(s). 295/2022 JAMIAT ULAMA I HIND Petitioner(s) VERSUS NORTH DELHI MUNICIPAL CORPORATION & ORS. 

As requested by Mr. Tushar Mehta, learned Solicitor General appearing for the respondent(s), list these matters on 01.10.2024 as first item. 

2. Till the next date of hearing, we direct that there shall be no demolition anywhere across the country without seeking leave of this Court. 

3. We further clarify that our order would not be applicable if there is an unauthorized structure in any public place such as road, street, footpath, abutting railway line or any river body or water bodies and also to cases where there is an order for demolition made by a Court of law. 

Sand theft attracts 379 IPC and Section 3 and 4 of PDPP Act

 

REPORTABLE

 IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1920 OF 2019 ARISING OUT OF S.L.P.(CRIMINAL) NO. 10707 OF 2019

 KANWAR PAL SINGH                                                       

.....   APPELLANT(S)

VERSUS

THE  STATE  OF   UTTAR  PRADESH AND ANOTHER

.....RESPONDENT(S)

 

SANJIV KHANNA, J.

J U D G M E N T

 Leave granted.

 

 2. Kanwar Pal Singh, the appellant, impugns the order dated 22^nd July 2019 whereby the High Court of Judicature at Allahabad has dismissed his petition under Section 482 of the Code of Criminal Procedure, 1973 (‘Code’ for short) for quashing criminal prosecution under Section 379 of the Indian Penal Code, 1860 (‘IPC’ for short), Rules 3, 57 and 7 of the Uttar Pradesh Minor Mineral (Concession) Rules, 1963, Sections 4 and 21 of the Mines and Minerals (Development and Regulation) Act, 1957 (‘Mines Regulation Act’ for short), and Sections 3 and 4 of the Prevention of Damage to Public Property Act, 1984 arising out of Crime Case No. 289 of 2018, Police Station Vindyachal, District Mirzapur, Uttar Pradesh. The appellant had also challenged, without success before the High Court, the order dated 8^th February 2019 passed by the Chief Judicial Magistrate taking cognizance and summoning the appellant for trial.

 

3.           In brief, the facts of the case are that on the basis of a complaint filed by one Mr. S.K. Pal, Surveyor, Mines Department, District Mirzapur, FIR No. 0289 dated 15^th November 2018 was registered at Police Station, Vindyachal, inter alia recording that on 2^nd November 2018, during inspection of the mining site in Village Nandni, Tehsil Sadar, District Mirzapur, the Nayab Tehsildar had noticed illegal mining whereupon a report vide letter dated 12^th November 2018 was submitted to the Sub-Divisional Magistrate, Sadar. The appellant is a Director of M/s. Kanwar Enterprises Pvt. Ltd., which was granted rights to excavate sand vide mining lease over Plot No. 2/4, measuring 12.35 acre and Plot No. 2/5 measuring 12.35 acre in Village Nandni. However, it is alleged that the appellant was mining sand outside the permitted area in Village Babhni numbered as 534/2 where he had illegally excavated a pit 50 feet long, 50 feet wide and 2 meter deep. Consequently, the District Magistrate had ordered for immediate registration of the FIR under the aforesaid provisions.

 

4.          Though a number of contentions were raised before the High Court, the learned senior counsel for the appellant has during the course of arguments before us restricted his submissions to the violation of Section 22 of the Mines Regulation Act and the legal effect thereof. Referring to the contents of the FIR, it is submitted that the appellant has been wrongly charge-sheeted by the police for the offences, as at the best there was violation of Section 4, which is punishable under Section 21 of the Mines Regulation Act. It is highlighted that M/s. Kanwar Enterprises Pvt. Ltd. had held a valid lease for mining. As per Section 22 no court can take cognizance of the offences under the Mines Regulation Act, except on a complaint in writing by a person authorised by the Central or State Government. The State police not being authorised, could not have filed the charge-sheet/complaint. The contention predicated on Section 22 of the Mines Regulation Act is made by relying upon the judgment of this Court in Jeewan Kumar Raut and Another  v. Central Bureau of Investigation1. In the written submissions filed by the appellant, a relatively new plea and contention has been raised by relying upon the judgments of this Court in Belsund Sugar Company Limited v. State of Bihar,2   Sharat Babu Digumarti v. Government of NCT of Delhi3   and Suresh Nanda v. Central Bureau of Investigation4 to urge that the Mines Regulation Act being a special statute, prosecution for an offence under Section 379 of the IPC would not be maintainable. The judgment of this Court in State (NCT of Delhi) v. Sanjay.5, it is submitted, is distinguishable as the FIR for the offence against illegal sand mining in Sanjay (supra) was registered suo moto due to non-production of any document to establish mining rights and therefore, the ratio in that case would apply only to cases of illegal mining where the mining lease had already been revoked or there was no subsisting mining lease.

 

5.           We find the submission of the appellant to be untenable. In Sanjay (supra), a Division Bench of this Court had decided appeals preferred against the conflicting judgments of the Delhi High Court, Gujarat High Court, Kerala High Court, Calcutta High Court, Madras High Court and Jharkhand High Court on the question whether a person can be prosecuted for the offences under Sections 379/114 and other provisions of the IPC on the allegations of illegal mining in view of Section 22 of the Mines Regulation Act, which reads as under:

“22. Cognizance of offences.— No court shall take cognizance of any offence punishable under this Act or any rules made thereunder except upon complaint in writing made by a person authorised in this behalf by the Central Government or the State Government.”

After adverting to the provisions of the Code, namely, Sections 2(c), 2(d) and 2(h) which define ‘cognizable offence’, ‘complaint’ and ‘investigation’ respectively, this Court had referred to Section 4 of the Code, which reads as under:

“4. Trial of offences under the Indian Penal Code and other laws.— (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.

 (2) All offences under any other law shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences.”

 As per sub-section (2) to Section 4, all offences under any law, other than the IPC, can be investigated, inquired into and tried under the Code, subject to any enactment regulating the manner or place of investigation, trial etc. of such offences. Section 21 of the Mines Regulation Act, it was observed, states that the offences specified thereunder are cognizable. Section 41 of the

Code was referred to elucidate that the police has the power to arrest without warrant in case of cognizable offences. Sections 149 to 152 of Chapter XI of the Code that require the police to prevent cognizable offences either by arrest or otherwise, etc. were referred, to hold that the aforementioned provisions show that a police officer of his own authority has the duty to prevent any injury attempted to be committed to any public property or national assets and also to prosecute such persons in accordance with law.

 Accordingly, in Sanjay (supra) it was held that the investigation of the offences is within the domain of the police and the power of a police officer to investigate into cognizable offences is not ordinarily impinged by any fetters albeit the power must be exercised as per the statutory provisions and for legitimate purposes. The courts would interfere only when while examining the case they find that the police officer in exercise of the investigatory powers has breached the statutory provisions and put the personal liberty and/or the property of a citizen in jeopardy by an illegal and improper use of the powers or when the investigation by the police is not found to be bona fide or when the investigation is tainted with animosity. While examining the issue,

this Court in Sanjay (supra) took notice of the decision in H.N. Rishbud  v.  State  of  Delhi6    wherein  this  Court  has  held  that  a defect or illegality in investigation, however serious, has no direct bearing on the competence or the procedure relating to the taking of the cognizance or trial. The cardinal principle of law as noted by this Court in Directorate of Enforcement v. Deepak Mahajan7   is that every law is designed to further the ends of justice and should not be frustrated on mere technicalities. The public trust doctrine was cited and applied to underscore the principle that certain resources like air, sea, water, forests and minerals are of great importance to the people as a whole and that the government is enjoined to hold such resources in trust for the benefit of the general public and to use them for their benefit than to serve private interests.

 

6.           This Court in Sanjay (supra) has cited several decisions wherein the challenge to the prosecution on the ground that there can be no multiplicity of offences under different enactments was resolved and answered by relying upon Section 26 of the General Clauses Act, which we would like to reproduce for the sake of convenience:

 “26. Provision as to offences punishable under two or more enactments.— Where an act or omission constitutes an offence under two or more enactments, then the offender shall be liable to be prosecuted and punished under either or any of those enactments, but shall not be liable to be punished twice for the same offence.”

 Section 26 of the General Clauses Act permits prosecution for ‘different offences’ but bars prosecution and punishment twice for the ‘same offence’ under two or more enactments. The expression ‘same offence’ has been interpreted by this Court in numerous decisions  viz.,  Maqbool  Hussain  v.  State  of  Bombay8      with reference to the provisions of the Sea Customs Act and the Foreign Exchange Regulation Act, 1947; Om Parkash Gupta v. State of U.P.9   and State of Madhya Pradesh v. Veereshwar Rao Agnihotri10   with reference to Section 409 of the IPC and Section 5(2) of the Prevention of Corruption Act;  T.S. Baliah v. ITO11   with reference to Section 52 of the Income Tax Act, 1922 and Section 177 of the IPC; Collector of Customs v. Vasantraj Bhagwanji Bhatia12, with reference to the provisions of the Customs Act 1962 and the provisions of the Gold (Control) Act, 1968; State of Bihar v. Murad Ali Khan13    with reference to the provisions of Sections 447, 429 and 379 of the IPC and provisions of the Wildlife (Protection)  Act,  1972;  Avtar  Singh  v.  State  of  Punjab14     with reference to Section 39 of the Electricity Act, 1910 and the provisions of theft under the IPC; and Institute of Chartered Accountants of India v. Vimal Kumar Surana15   with reference to the provisions of the Chartered Accountants Act, 1949 and offences under Sections 419, 468, 471 and 472 of the IPC. Elucidating on the provisions of Section 4 read with Sections 21 and 22 of the Mines Regulation Act and the offence under Section 379 of the IPC, it was observed in Sanjay (supra):

“69. Considering the principles of interpretation and the wordings used in Section 22, in our considered opinion, the provision is not a complete and absolute bar for taking action by the police for illegal and dishonestly committing theft of minerals including sand from the riverbed. The Court shall take judicial notice of the fact that over the years rivers in India have been affected by the alarming rate of unrestricted sand mining which is damaging the ecosystem of the rivers and safety of bridges. It also weakens riverbeds, fish breeding and destroys the natural habitat of many organisms. If these illegal activities are not stopped by the State and the police authorities of the State, it will cause serious repercussions as mentioned hereinabove. It will not only change the river hydrology but also will deplete the groundwater levels.  There cannot be any dispute with regard to restrictions imposed under the MMDR Act and remedy provided therein. In any case, where there is a mining activity by any person in contravention of the provisions of Section 4 and other sections of the Act, the officer empowered and authorised under the Act shall exercise all the powers including making a complaint before the Jurisdictional Magistrate. It is also not in dispute that the Magistrate shall in such cases take cognizance on the basis of the complaint filed before it by a duly authorised officer. In case of breach and violation of Section 4 and other provisions of the Act, the police officer cannot insist the Magistrate for taking cognizance under the Act on the basis of the record submitted by the police alleging contravention of the said Act. In other words, the prohibition contained in Section 22 of the Act against prosecution of a person except on a complaint made by the officer is attracted only when such person is sought to be prosecuted for contravention of Section 4 of the Act and not for any act or omission which constitutes an offence under the Penal Code.

 71.    However, there may be a situation where a person without any lease or licence or any authority enters into river and extracts sand, gravel and other minerals and remove or transport those minerals in a clandestine manner with an intent to remove dishonestly those minerals from the possession of the State, is liable to be punished for committing such offence under Sections 378 and 379 of the Penal Code.

 72.  From a close reading of the provisions of the MMDR Act and the offence defined under Section 378 IPC, it is manifest that the ingredients constituting the offence are different. The contravention of terms and conditions of mining lease or doing mining activity in violation of Section 4 of the Act is an offence punishable under Section 21 of the MMDR Act, whereas dishonestly removing sand, gravel and other minerals from the river, which is the property of the State, out of the State’s possession without the consent, constitute an offence of theft. Hence, merely because initiation of proceeding for commission of an offence under the MMDR Act on the basis of complaint cannot and shall not debar the police from taking action against persons for committing theft of sand and minerals in the manner mentioned above by exercising power under the Code of Criminal Procedure and submit a report before the Magistrate for taking cognizance against such persons. In other words, in a case where there is a theft of sand and gravel from the government land, the police can register a case, investigate the same and submit a final report under Section 173 CrPC before a Magistrate having jurisdiction for the purpose of taking cognizance as provided in Section 190(1)(d) of the Code of Criminal Procedure.”

7.           As noticed above, in the written submissions the appellant has relied upon Belsund Sugar Company Limited (supra), Sharat Babu Digumarti (supra) and Suresh Nanda (supra) to contend that where there is a special act dealing with a special subject, resort cannot be taken to a general act. The said submission has no force in view of the ratio in Sanjay (supra) as quoted above which specifically refers to Section 26 of the General Clauses Act and states that the offence under Section 4 read with Section 21 of the Mines Regulation Act is different from the offence punishable under Section 379 of the IPC. Thus, they are two ‘different’ and not the ‘same offence’. It would be relevant to state here that the Delhi High Court in its decision reported as Sanjay v. State16, which was impugned in Sanjay (supra), had accepted an identical argument to hold that once an offence is punishable under Section 21 of the Mines Regulation Act, the offence would not be punishable under Section 379 of the IPC. This reasoning was rejected by this Court and the judgment of the Delhi High Court was reversed. The contention relying on the same reasoning before us, therefore, must be rejected.

 

8.           We would also reject the contention raised by the appellant in the written submissions that the alleged theft of sand is not punishable under Section 379 read with Section 378 of the IPC as sand is an immovable property as per Section 3 (26) of the General Clauses Act. In the present case, sand had been excavated and was thereupon no longer an immovable property. The sand on being excavated would lose its attachment to the earth, ergo, it is a movable property or goods capable of being stolen. {See Explanation 1 to Section 378 of the IPC and Sanjay (supra) as quoted above}

 9.           We would in the end refer to the judgment in Jeewan Kumar Raut (supra) on which considerable reliance was placed by the appellant at the time of the hearing. The said judgment was distinguished in Institute of Chartered Accountants (supra) by observing that the provisions of the Transplantation of Human Organs Act, 1994 (‘TOHO Act’ for short) were different and were not similar to the provisions of sub-section 2 to Section 24-A, 25 and 26 of the Chartered Accountants Act as the TOHO Act is hedged with a non-obstante clause. We would like to further elucidate and explain that in Jeewan Kumar Raut (supra) this Court was examining the right of the appellant therein to claim statutory bail in terms of sub-section (2) to Section 167 of the code on the ground that the Central Bureau of Investigation (‘CBI’ for short) had failed to file the charge-sheet within 90 days from the date of arrest. Relying on Section 22 of the TOHO Act, which mandates filing of a complaint by a person duly authorised by a competent authority, it was observed that the TOHO Act is a special law which deals with the subjects mentioned therein, viz., offences relating to the removal of human organs, etc. Ordinarily, any person can set the criminal law into motion but the legislature keeping in view the sensitivity and importance of the subject had provided that the violations under the TOHO Act would be dealt with by the authorities specified therein. Thereafter, reference was made to Section 4 of the Code as cited above, to hold that the TOHO Act being a special Act, the matters relating to offences covered thereunder would be governed by the provisions of said Act, which would prevail over the provisions of the Code. Reference was made to clause (iv) of sub-section (3) to Section 13 of the TOHO Act which states that the appropriate authority shall investigate any complaint of breach of any of the provisions of the said Act or any rules made thereunder and take appropriate action. There is no similar provision under the Mines Regulation Act i.e. the Mines and Minerals (Development and Regulation) Act, 1957.

 10.       In Jeewan Kumar Raut (supra), it was noted that the CBI has been designated as an appropriate authority under the provisions of the TOHO Act and therefore entitled to carry on investigation. In this context, it was observed that Section 22 of the TOHO Act prohibits taking of cognizance except on a complaint made by an appropriate authority and therefore the police report filed by the CBI was only a complaint petition made by an appropriate authority in terms of Section 22 of the TOHO Act. Consequently, sub-section (2) to Section 167 of the Code would not be attracted as the CBI could not have submitted a police report in terms of sub-section (2) to Section 173 of the Code. Jeewan Kumar Raut (supra) was, thus, dealing with a contention and issue entirely different from the one raised in the present case. It is undisputed that decisions of the courts cannot be blindly applied in disjunction of the factual circumstances and issues of each case. The court decisions expound on the law as applicable to the specific circumstances of each case and such exposition may not therefore be necessarily applicable to another case given its own peculiarities. Therefore, the contention predicated on the ratio in Jeewan Kumar Raut (supra) holds no merit.

11.       We would again advert to the decision in Sanjay (supra) which had overruled the decision of the Calcutta High Court in Seema Sarkar v. State17   wherein the High Court held the proceedings to be invalid and illegal as the Magistrate had taken cognizance on the basis of a charge-sheet submitted by the police under Section 21(2) of the Mines Regulation Act and Section 379 of the IPC, observing that the cognizance was one that cannot be split or divided. The High Court had further observed that as the complaint was not made in terms of Section 22 of the Mines Regulation Act, the cognizance was bad and contrary to law. We have already noted the decision of the Delhi High Court which had directed that the FIR should not be treated as registered under Section 379 of the IPC but only under Section 21 of the Mines Regulation Act. These decisions of the Calcutta High Court and the Delhi High Court were reversed and set aside by this Court in Sanjay (supra) after referring to Section 26 of the General Clauses Act and the meaning of the expression ‘same offence’, to observe that the offence under Section 21 read with Section 4 of the Mines Regulation Act and Section 379 of the IPC are different and distinct. The aforesaid reasoning compels us to reject the contention of the appellant that the action as impugned in the FIR is a mere violation of Section 4 which is an offence cognizable only under Section 21 of the Mines Regulation Act and not under any other law. There is no bar on the Court from taking cognizance of the offence under Section 379 of the IPC. We would also observe that the violation of Section 4 being a cognizable offence, the police could have always investigated the same, there being no bar under the Mines Regulation Act, unlike Section 13(3)(iv) of the TOHO Act.

 

12.       In view of the aforesaid discussion, we would uphold the order of the High Court refusing to set aside the prosecution and cognizance of the offence taken by the learned Magistrate under Section 379 of the IPC and Sections 3 and 4 of the Prevention of Damage to Public Property Act. We would, however, clarify that prosecution and cognizance under Section 21 read with Section 4 of the Mines Regulation Act will not be valid and justified in the absence of the authorisation. Further, our observations in deciding and answering the legal issue before us should not be treated as findings on the factual allegations made in the complaint. The trial court would independently apply its mind to the factual allegations and decide the charge in accordance with law. In light of the aforesaid observations, the appeal is partly allowed, as we have  upheld the prosecution and cognizance of the offence under Section 379 of the IPC and Sections 3 and 4 of the Prevention of Damage to Public Property Act. There would be no order as to costs.

J. (S. ABDUL NAZEER)

J. (SANJIV KHANNA) 

NEW DELHI; DECEMBER 18, 2019.