Mohan Singh and Another vs State of Punjab and Another

Ritu Bahri, J.—The present petition u/s 482 Cr.P.C. is for quashing of orders dated 21,01.2009 (P-13 and P-14) and F.I.R. No. 3 dated 20.01.2004 u/s. 419 /420 /465 /468 /471 /120-B IPC and Section 131(C) and (D) 13(2) of Prevention of Corruption Act, 1988, registered at P.S. Vigilance Bureau Ludhiana (P-1). The Vigilance Bureau, Punjab has lodged the above said F.I.R. on the allegations that a land about 1100 sq yards which falls in the Payal town was in the occupation of about 32 Scheduled Caste families and they were storing their fire wood etc and are preparing the dung cake and have rookies at this place. This land falls under the red line and it is not the ownership of anybody. To grab this land, Avinash Preet Singh made a scheme and under this scheme they got the entry by forging and fabricating the record of the Assessment Register of the Municipal Council, Payal in the name of his servant Mohinder Singh. On the basis of this entry, he got issued TS-1 of this place with the connivance of the Clerk and the office of the Municipal Council. Thereafter, Mohinder Singh executed a sale deed of 1100 sq. yards in the name of Parminder Singh and after the execution of the sale deed, the above said persons with connivance tried to get the possession of this valuable land. As per the assessment register, there is a house of Lachman Singh ward No. 11 Payal. It is at Sr. No. 1143. The allegation is that Mohan Singh, Assessment Scheme Clerk and Karnail Singh Clerk Municipal Committee Payal have misused their rights and post by fabricating the record and entered the name of Mohinder Singh in the Assessment Register at Sr. No. 1143. They have issued TS-1 certificate in the name of Mohinder Singh and on the basis of this TS-1 certificate, Mohinder Singh with the connivance of the Revenue Officers executed a sale deed in favour of Parminder Singh vide vasika No. 2343 13.01.2003 and before the registration of the sale deed, the revenue officials have not enquired about this land. In this background, the petitioners have committed a fraud.

Learned counsel for the petitioner has sought quashing of the above said F.I.R. on the ground that the entry regarding plot No. 1129 was recorded in the Assessment Register of the Municipal counsel at serial No. 1143 and this was recorded on 31.03.1985 and since then Mohinder Singh is in possession of this plot. Subsequently, Mohinder Singh moved an application to the Executive Officer, Municipal Council Payal on 18.12.2002 for the issuance of TS-1 certificate. This certificate was issued on 20.12.2002 by the Executive Officer, Municipal Council Payal (P-4). Annexure P-4 is the assessment house tax for the year 2002 in which Mohinder Singh has been shown to be the owner with reference to the property at Sr. No. 1129. The SDM Payal got enquired the matter and the Executive Officer after going through the records submitted a report to the SDM Payal that nothing has been fabricated. (P-5). The allegations in the F.I.R. is that plot No. 1129 belongs to one Lachhman Singh and name of Mohinder Singh has been entered by way of fabrication. However, perusal of the Assessment Register shows that nothing has been fabricated and plot No. of the co-accused is 1129 and Sr. No. 1143. It has further been wrongly mentioned that a cutting has been made in the plot of Lachman Singh. Whereas in the Assessment Register, where the plot of Lachman Singh is at Sr. No. 1139 and nothing has been fabricated (P-8). This entry is of 31.03.1985. The sale deed has been made by Mohinder Singh who executed the sale deed in favour of Parminder Singh. So, the petitioners are neither witness nor the beneficiary and in no way connected with the plot.

Learned counsel for the petitioners has vehemently argued that the Vigilance Bureau had approached the MC for grant of sanction to prosecute the petitioners which was refused by the Municipal Council vide resolution Nos. 398 and 565. Copies of the resolutions dated 30.08.2005 and 05.09.2007 are Annexures P-10 and P-11.

Thereafter, the SSP, Vigilance Bureau wrote a letter dated 27.11.2007 (P-12) to the Director, Department of Local Government, Punjab Chandigarh to grant sanction to prosecute the petitioners. However, respondent No. 2 sent the letter back with the endorsement that the right of appointment of Clerks vests with the concerned Nagar Council and the sanction of prosecution has to be given by the Nagar Council (P-12). On three occasions, sanction to prosecute the petitioners had been declined and thereafter, sanction to prosecute these employees was issued vide P-13 and P-14 which is against the settled proposition of law set down by Hon''ble the Supreme court in following judgments that once the sanction to prosecute the petitioner has been declined, thereafter, order cannot be reviewed by the appointing authority. Another ground for quashing the proceedings initiated in the F.I.R. that the impugned order sanctioning to prosecute the petitioner was granted by the Director, Department of Local Government, Punjab Chandigarh who was not even the appointing authority.

Learned counsel for the petitioner has referred to Division Bench judgment passed by this Court on 24.08.2006 in a case of Chander Mohan Joshi v. State of Punjab and others whereby while examining section 39 of the Municipal Services where it has been held that the power to appoint the officers and servants as per Section 3(iv) vests with the Committee or Nagar Panchayat as constituted u/s 12 of the Act. It is held that power to suspend an employee of the non-provincialised cadre vests with the Committee.

Learned counsel has further referred to order passed by this Court in Crl. Misc. M-8794 of 2011 titled as Mahesh Kumar v. State of Punjab and others arising out of the above said F.I.R. where sanction to prosecution had been given against Mahesh Kumar who was working as a Clerk in the Municipal council, Payal. In the year 2002, when he was working as Executive officer, given an application dated 18.12.2002 for issuance of TS-1 certificate regarding his land situated in Ward No. 11 and he deposited a sum of Rs. 50/-. The said application was supported by an affidavit which was duly attested by Executive Magistrate-cum-Tehsildar and the same was identified by Municipal Council. The entry was made in original assessment register upto 31.03.1985 regarding the property of Mohinder Singh and the petitioner had verified it from the record and attested the same. During the pendency of the proceedings, on an appeal filed by the said petitioner, the sanction to prosecute had been withdrawn by the Punjab government vide order dated 21.02.2012.

Learned counsel has argued that in the case of Mahesh Kumar, on 07.09.2006, sanction to prosecute him had been withdrawn on the ground that he had merely attested the entries made in the house tax register in the year 1984-85. He had issued a copy of the said entry. Subsequently sanction to prosecute the petitioner was granted on 23.01.2009 (P-13) after a gap of three year. Vide order dated 21.02.2012, the sanction to prosecute Mahesh Kumar has been withdrawn.

Heard learned counsel for the parties.

After going through the facts, it is not disputed that vide resolutions dated 30.08.2005 (P-10) and 05.09.2007 (P-11), the appointing authority refused to grant sanction by applying its mind that the petitioner had not committed any mistake while preparing the assessment register in the year 1984-85. Subsequently on a letter dated 27.11.2007 written by SP Vigilance Bureau (P-12) asking the Director Department of Local Government, Punjab Chandigarh to give sanction to prosecute the petitioners. However, respondent No. 2 sent the letter back with the endorsement that the appointment of Clerks vests with the concerned Nagar Council and the sanction of prosecution has to be given by the Nagar Council (P-12). On three occasions, sanction to prosecute the petitioners had been declined.

The present petitioners are placed on better footing. In the present case, sanction to prosecute the petitioners was declined by President Municipal council, Payal vide P-10 and P-11 by observing that TS-1 certificate was issued as per record. No mistake was committed by the employees and they were innocent.

A Division Bench of this Court in Mohammed Iqbal Bhatti Vs. State of Punjab, in paragraph 9 has held as under:-

As regards point No. 2, that the Government having once exercised its power u/s 197 of the code, had exhausted its power and as such it could not exercise the same for the second time, we are inclined to hold that there is merit in this contention. The power given to the State Government u/s 197, having been exercised by it while passing the first order, annexure P-2 stood exhausted and the same could not be exercised second time while passing the impugned order, annexure P-3. For this decision of ours, we find support not only from the decision ion Kanta Devi''s case (supra), but also from the quotation reproduced above in the case of M/s. Western India Watch Co''s case (supra) wherein the Supreme Court did not consider the question of exhausting the power. In that case, it came to the conclusion that since the Government had refused to exercise its power therefore it was not exhausted. The necessary implication that if the power had been exercised, then the same could not be exercised twice over. Furthermore, we find support from the decision of the Supreme Court in D.N. Ganguly''s case (supra) where the subsequent order was held to be bad although not on the reasoning that the power had been exhausted while passing the earlier order. Hence, we hold that the Government exhausted its power u/s 197 of the Code while passing the earlier order, annexure P-2, it could not exercise that power twice over while passing the impugned order, annexure P-3. On this ground also, the impugned order annexure P-3 is liable to be quashed as being null and void.

The State had gone in SLP against this judgment and Hon''ble the Supreme Court in a case of State of Punjab and Another Vs. Mohammed Iqbal Bhatti, Recent Apex Judgments (R.A.J.) 605: JT 2009(13) SC 180 has dismissed the SLP and observed in paragraph 23, which reads as under:-

The High Court in its judgment has clearly held, upon perusing the entire records, that no fresh material was produced. There is also nothing to show as to why reconsideration became necessary. On what premise such a procedure was adopted is not known. Application of mind is also absent to show the necessity for reconsideration or review of the earlier order on the basis of the materials placed before the sanctioning authority or otherwise.

The sanction to prosecute Mahesh Kumar the other co-accused had been withdrawn by the Punjab government vide order dated 21.02.2012. In the facts of the present case, on three occasions, sanction to prosecute the petitioners had been declined and thereafter, sanction to prosecute these employees was issued vide orders dated 21.01.2009 (P-13 and P-14) by the Director, Department of Local Government, Punjab Chandigarh who was not even the appointing authority of the petitioners. There was no new material with the authorities to review its earlier decision.

Applying the ratio of the above said judgments, orders dated 21.01.2009 (P-13 and P-14) and F.I.R. No. 3 dated 20.01.2004 u/s. 419 /420 /465 /468 /471 /120-B IPC and Section 131(C) and (D) 13(2) of Prevention of Corruption Act, 1988, registered at P.S. Vigilance Bureau Ludhiana are hereby quashed.

Accordingly, the present petition stands allowed.