Sushil Ansal vs State of Haryana

J. S. Sekhon, J.

Criminal Miscellanous Nos. 5819M of 1990 and 5822M of 1990 shall be disposed of by this order as almost similar controversy is involved therein between the same parties. Both these petitions have been filed under Section 482 of the Code of Criminal Procedure 1973 for quashing FIR Nos. 46 and 18 of the year 1993 of Police Station, Sohna District Gurgaon whereby the cases under Section 447 of Indian Penal Code read with Sections 4 and 5 of the Punjab Land Preservation Act, 1900 and read with secs. 2 and 3 of the Forest Conservation Act, 1980 were registered against the accused petitioners, pertaining, to violation of the provisions, of the Punjab Land Preservation Act qua the protected land in the area of village Raisina and Sohna respectively.

The brief resume of facts figuring in the respective first information report is almost similar except for location of the land in two different revenue estates. In FIR No. 46, it is averred by the Range Forest Officer, Sohna Forest Range that M/s. Ansal Estate Company through Mr. Sushil Ansal has taken illegal possession of the land falling in Killa Nos. 11, 20, 21 of Rect. No. 39, Kills, Nos. I to 25 of Rect. No. 40, Kills Nos. I to 5 Rect. No. 55 and Killa No. 1 of Rect No. 56 in the revenue estate of village Raisina although this land was declared as preserved area under the provisions of Sections 4 and 5 of the Punjab Land Preservation Act, 1900 through notification issued by the State of Haryana. It is further averred that the accused persons had resorted to construction of roads after cutting trees growing there on the land in violation of the provisions of Sections 2 and 3 of the Forest Conservation Act, 1980. In FIR No. 16/1990, the allegations pertain to taking illegal possession and laying out roads etc., on some land located in the revenue estate of village Sohna, in violation of the provisions of the abovereferred Acts. After completion of investigation and on the basis of the demarcation report of the concerned revenue authorities, the prosecution had submitted the challans in both the cases before the trial Court by now.

The accused petitioners seek quashment of these two cases and the resultant proceedings thereof mainly on the ground that the necessary mens rea or intent to constitute the criminal offence under Section 447 of the Penal Code or under the above referred provisions of the special Acts was missing in this case as the report of the revenue authorities reveals that the accused petitioner was in possession of some land belonging to the Forest Department while some land belonging to the petitioner was found in possession of the Forest Department. In other words, it is contended by the petitioners that due to lack of any specific boundaries of different fields or rectangles at the spot, they have taken possession believing in good faith that the land belonged to them. It is further averred that the petitioner had by now removed the encroachment and has taken the possession of the land belonging to them on the basis of the report of the revenue authorities. In the returns filed on behalf of the respondent State by, the Superintendent of Police, Gurgaon, it is maintained that the act of the petitioners incutting the trees from the land of the Forest Department in violation of the provisions of the above referred Acts at least prima facie makes them liable for the above referred offences. However, it is admitted that the petitioners were found in illegal possession on the basis of the demarcation report of the revenue authorities.

I have heard the learned counsel for the parties besides perusing the record.

There is no dispute that certain land in the revenue estate of village Sohna and Raisina have been declared as protected area under the provisions of Sections 4 and 5 of the Punjab Land Preservation Act, 1900 as well as under the provisions of Sections 2 and 3 of the Forest Conservation Act, 1980 and that this land touches the land belonging to M/s. Ansal Estate Company. It is also not specifically denied that the accused. Company had vide letter dated 19th of January, 1990 written to the concerned Forest Officer to get the land demarcated for ascertaining whether the Company is in unauthorised possession of some protected area belonging to the Forest Department and that on the basis of letter, the land was got demarcated from the revenue authorities. The copy of the demarcation report Annexure P2 pertaining to the land located "in the revenue estate of village Raisina reads as under :

"As per programme, I reached village Raisina on 621990 and 721990 alongwith the persons namely Shri Sat Parkash patwari Halqa with record and material needed for measurement, Sh. Om Parkash Forest Kanungo, Shri Sant Parkash, Forest Patwari, Shri Subhash Babu Incharge, Sohna Forest Range, Shri Alam Din, Forest Guard Incharge, Raisina and Shri K.S. Sahsi, D. G. M. and Shri V. K. Sehgal, E. D. on behalf of Ansal Properties and Industries Limited.

After ascertaining the pucca line of Rectangle No. 537/12 from East Northern line to ascertain Southern line of Kasra No. 55/26 and after measuring SouthWest end of Killa No 55/10 with the help of Cross. Compass, Zarib and Tap; after ascertaining puccline, the location of NorthWest end of Rect. No. 40/10 was affixed which was found towards North of Rect. No. 54 (whole) and 5518, 9, 10. Thereafter, from this spot, Southern end of Rect No. 41/1 towards West was affixed. Then from this very point towards the North, NorthEast end of Ract. No. 315 was affixed. Thereafter, from this very spot while going towards West, NorthWest angle of 31/I was affixed. From this spot, again towards North side. NorthWest end of Rect No. 22/1 was affixed and demarcation proceeding were completed.

From the demarcation :proceedings as conducted above, no unauthorisedpossession was found on the land comprised in Rect No. 55/1, 2, 3, 4, 5, 56/ 1, Rect No. 40 (whole), 41/1 to 5, 32/1 to 25, 21/1 to 25. This land is covered under Sections 4 and 5, of the Punjab Land Preservation Act, 1900. Only, land comprised in Rect. No. 22/1, 10, 21 which is with the Forest Department and is covered under Section 5 of the Punjab Land Preservation Act, 1900. In this land unauthorised possession has been made by Ansal Properties and Industries Limited, New Delhi by way of affixing barbed wire. Whereas land measuring 16 Kanals, 360 feet in South, 600 feet in East and 440 feet in East West end of Rect. No. 22/16 to 25 has been left out by Ansal Properties and out of Killa No. 22/1, 10 an area North. 230 feet, West 400 feet, East 461 feet, total 10 Kansals and out of Killa No. 22/21 an area measuring I Kansal 2 Marlas being 220 feet South 55 feet West and 231 North, which is with the Forest Department covered under the provisions of Section 5 of the Punjab Land Preservation Act, 1900 is in unauthorised possession of M/s. Ansal Properties and Industries Ltd., Delhi. This mistake and possession at the sport was detected after making measurements with the help of Compass and Cross. Shri V. K. Sehgal, E. D., M/s. Ansal Properties has made a statement before Shri P. V. Subhash Babu R. F. S. Incharge, Sohna Forest Range that the land which is with the Forest Department in which barbed wire has been affixed, same would be removed as per the boundaries found vide demarcation.

Submitted for further necessary action and information.

Sd/ Hindi Sd/ Satya Parkash

Subhash Babu Patwari, V. Raisina.

Range Forest Officer dated 821990.

Sohna Forest Range

Sohna 821990 (Seal) Sd/ Illegible

For API Ltd. F.O. 921996

V. K. Sehgal

Ex. Director.

Sd/ Illegible

Sd/ Illegible Sd/ Illegible

D. G. M. API Ltd. 821990

8.21990."

A bare glance through the above reproduced report reveals that the accused petitioners were found in authorised possession of land failing in Killa No. 27/1, 10, 21 by encircling it, with affixed barbed wire whereas the land measuring little more than 16 Kanals forming part of Rect. No. 22/16 to 25 belonging to M/s. Ansal Estate Company in possession of the Forest Department. This report further shows that Shri V.K. Sehgal an employee of the accusedcompany has stated that they will remove the barbed wire from the land belonging to the Forest Department. The report also shows that there were no boundaries of different fields forming part of the above referred rectangles, as the revenue officer has been able to fix the boundaaries of different rectangles with great difficulty.

The demarcation report Annexure R5 in case FIR No. 18 of 1990 pertaining to village Sohna reads as under :

"Respectfully submitted that, on 2491990, 2141990, 2241990, on reaching village Sohna Tehsil and district Gurgaon along with revenue and Forest papers in the company of witnesses mentioned in the side by means of chain measurement was done. After searching out a Burji in the line of Rect. No. 208/21 in the all of village Shasola and Sohna measurement was started making the Burji as the base. From the spot, the measurement parties reached towards the North of Khasra No. 207/16 and 207/7 and 206/5 upto Burji and the measurement was found correct at the spot according to revenue record. From this very burji of Rect. No. 20615 a Murba line (Square line) was fixed with the help of compass cross and flags and a burji was fixed by measuring with, the help of Zarib Rectangle No. 162 Killa No. 5 right upto North, eastern corner. Then from this very spot with the help of cross, compass and flags rectangle line was fixed by measuring the land right upto the border of village Sond towards the West and it was found correct, and both the parties Were present and other villagers admitted the same to be correct. While making measurement of Rect. No. 206, Khasra No. 5, it was found that from its SouthEastern corner to SouthWestern corner of Khasra No. 3, Ansal Properties and Industries and illegally occupied by fixing cement pole and barbed wire to beside this in Rect. No. 201, Killa Nos. 3, 8, 13, 18, 23 and Rect. No. 206 Khasra No. 3. The aforesaid company has dug kits, Rect. Nos. 201 and 206 are under the occupation of Forest Department and is of area preserved under the Punjab Land Preservation Act of 1980.

Report submitted for further necessary action.

Sd/ Om Parkash, F.O. Sd/ P.V. Subhash Babu IFS,

Sd/ Sant Parkash, F.P. Range Forest Officer, Sohna.

2241990. 2241990"

A perusal of the same reveals that the accusedcompany had encroached upon some land by fixing cement pole and inserting barbed wire belonging to the Forest Department and declared as protected area. It also shows that the boundaries of the land were fixed and demarcated after searching out burji in the adjoining of village Seshola. Consequently, under these circumstances, it cannot be said by any stretch of imagination that the accusedcompany had taken possession of the land covered by the provisions of the Punjab Land Preservation Act, 1900 or the Forest Conservation Act, 1980 knowingly that it does not belong to them or that it formed part of the protected area under the provisions of those Acts. Mr. S. K. Hooda, learned counsel for the respondent had failed to point out any evidence collected by the investigating agency in order to show any visible fixed marks depicting the boundaries of the land under forests. Thus, under these circumstances, even if the entire version of the prosecution is taken to be true, the reasonable possibility cannot be ruled out that company had not committed any criminal trespass or violated the provisions or the Punjab Land Preservation Act, 1990 or the Forest Conservation Act, 1980 with the necessary intent of damaging or negating the effect of the protected area of the Forest what to say of holding that it had committed the offence of criminal trespass.

The criminal treaspass is defined in section 441 of the Indian Penal Code, 1860 as under

"Section 441, Criminal trespass

Whoever enters into or upon property in the possession of another with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property, or having lawfully entered into or upon such property, unlawfully remains there with intent thereby to intimidate, insult or annoy any such person, or with intent to commit an offence, is said to commit,criminal trespass".

A bare glance through the definition of the cirminal trespass leaves no doubt that a person who enters into or upon property in the possession of another with intent to commit an offence or to intimidate, insult or annoy any person, or having lawfully entered into or upon such property, unlawfully remains there with intent thereby to intimidate. insult or annoy any such person, or with intent to commit an offence, is liable for this offence. Thus when the necessary intent to commit an offence or to intimidate, insult or annoy being obviously missing in this case as from the above referred circumstances it cannot be said that the company was aware of the property being in possession of the Forest Department. In other words, it can be well said that the possibility of the company in good faith believing that the land belongs to it, cannot be ruled out. If that is so, then continuation of proceedings in the Court for the abovereferred offences would certainly amount to abuse of the process of the criminal Court.

For the reasons recorded above, there is no option but to accept these two petitions and quash FIR Nos 18 and 46 of the year 1990 registered at Police Station, Sohna and all the resultant proceedings therefrom. It is ordered accordingly.

JUDGMENT accordingly.