Criminal Writ Petition No.749 of 2009

2nd February, 2010

Petitioner Counsel: Shri. S. S. JADHAVAR
Respondent Counsel: Shri. K. M. SURYAWANSHI,Shri. J. M. MURKUTE

JUDGMENT

JUDGMENT :- Heard. Rule. By consent of learned Advocates for the parties, rule made returnable forthwith and the writ petition is taken up for final hearing at admission stage.

2. This writ petition is filed by six persons who are accused in the F.I.R. registered as Crime No.45 of 2009 at Police Station, Bhusawal, for offences punishable under Sections 420, 468, 471 and 192 all read with Section 34 of Indian Penal Code.

3. Briefly stated, Respondent No.2 in his capacity as the Block Development Officer, Panchayat Samiti, Bhusawal lodged complaint on 21.04.2009 against present petitioners who were at the relevant time Sarpanch, Upa-Sarpanch and members of the gram panchayat and had passed resolutions thereby allowing amendment to Village Form No.8-A wrongly and illegally. According to the complainant, the Collector, Jalgaon had formed plots in 0.80 Are land out of gat No.242/1/A/2 at village Khandale and those plots were allotted to persons who were landless and homeless. At the time of allotment, one of the conditions was that the plots cannot be sold, gifted or bequeathed or otherwise transferred to anyone. However, Respondent No.3 complained that some of the plots owners sold the plots to others and, therefore, the government should cancel those sale transactions and take the possession of the said plots. Enquiry was made through Tahsildar and Sub-Divisional Officer, Bhusawal. Report was submitted to the Collector, Jalgaon on 20.5.2008. However, the Chief Executive Officer, Zilla Parishad, Jalgaon, informed that since the term of governing body of the Gram Panchayat, Khandala had come to an end, it was not possible to take action against them. It is further stated in the complaint that by resolution No.4 dated 28.3.2006, plot No.457 which was in the name of Namdeo Makadu Patil was transferred in the name of one Rajendra Chavdas Patil and mutation to that effect in Village Form No.8-A was allowed by the Gram Panchayat of which present petitioners were office bearers at that time. Similarly, plot No.15 was originally allotted to Shankar Mahipat Sapkal, but as per resolution No.6 dated 29.6.2007 the said plot is transferred to the name of Sarabai Rajaram Rane, in view of sale deed in her favour. The complaint was registered as Crime No.45 of 2009 at Bhusawal Police Station. Copy of FIR is at Exhibit G to the petition.

4. Along with affidavit in reply filed by Respondent No.1-State, the copy of the original proceeding book is produced. As per resolution No.4(4) dated 28.3.2006, one Khatabai Sudam Rane and Vatsalabai Sitaram Rane, after death of their father Namdeo Makadu Patil, gave consent for transferring plot No.20, in the name of their cousin Rajendra Chavdas Patil. Accordingly, resolution was passed for entering plot No.20 in the name of Rajendra Chavdas Patil. Similarly, as per resolution dated 29.6.2007, bearing No.6(2), Sadabai Rajaram Rane gave application to the gram Panchayat for transferring her house on plot No.480 in her name since she had purchased it from Indubai d/o. Shankar Sapkal in 1997 and copy of sale deed with index was produced.

5. It is argued by learned Advocate Shri. S. S. Jadhvar that the Gram Panchayat has absolutely no concern with the allotment of plots and it was all business of the revenue authorities. If there is any irregularity or illegality in transfer of plot or house, then the concerned persons may be liable, but in no way, merely because changes in Village Form No.8-A were allowed by the Gram Panchayat, the office bearers of the Gram Panchayat can be held responsible for any of the offences charged. Learned Advocate Shri. Jadhvar further argued that the Assessment Register in Form No.8-A is maintained for fiscal purposes by Gram Panchayat and it is not record of rights showing title. Moreover, such record maintained by the gram-panchayat has no effect in conferring or divesting the title. In the circumstances, it cannot be said that any of the petitioners have committed offences under Sections 420, 468, 471 or 192 of I.P.C. and therefore learned Advocate prayed that the F.I.R. be quashed.

6. On the other hand, learned Advocate Shri. Murkute for Respondent No.3 submitted that act of the petitioners to allow changes in village form No.8-A is nothing but abetting the illegality committed by the transferors and transferees.

7. Section 192 of I.P.C. deals with fabricating false evidence. It lays down that whoever causes any circumstance to exist or makes any false entry in any book or record [or electronic record] containing a false statement, intending that such circumstance, false entry or false statement may appear in evidence in a judicial proceeding, or in a proceeding taken by law before a public servant as such, or before an arbitrator, and that such circumstance, false entry or false statement, so appearing in evidence, may cause any person who in such proceeding is to form an opinion upon the evidence, to entertain an erroneous opinion touching any point material to the result of such proceeding, is said "to fabricate false evidence". In the present case, resolutions passed by the petitioners indicate that in one case two daughters, namely, Khatabai Rane and Vatsalabai Rane had given consent letters for transfer of plot held by their deceased father Namdeo Makadu Patil in the name of their cousin Rajendra Chavdas Patil; whereas in other case, Sarabai Rajaram Rane had produced the copy of sale deed and the extract of index register to show that she had purchased the plot and house in the year 1977 from one Indubai d/o. Shankar Sapkal. It does not appear that the gram panchayat has made any false entry or there was any intention that its record should be used in evidence. If we consider Section 415 of I.P.C., it does not appear that the Gram Panchayat had made any misrepresentation or induced any person (deceived) to deliver any property to any person or to do or omit to do anything. Similarly, Sections 463 and 464 which define "forgery" and "making of false documents" respectively are not attracted to the facts of present case. Passing of resolutions by the Gram Panchayat cannot be said to be either "forgery" or "making of false document".

8. My attention was also drawn to the letter dated 11.9.2008 sent by the Chief Executive Officer, Jalgaon, to the Collector, Jalgaon, the copy of which is at Exhibit "C" with the petition. It is mentioned therein that the Secretary of the Gram Panchayat, namely, Shri. S. Y. Uchit had not properly guided the office bearers of the Gram Panchayat. He should have given proper guidance and so he was responsible. Since the transactions themselves were illegal and contrary to the conditions laid down by the Government while allotting the plots, the Chief Executive Officer recommended departmental action against the Secretaries of the Gram Panchayat, namely, S. Y. Uchit and S. V. Mankare. It is also recommended that the action should be taken against petitioners under Section 178 of the Bombay Village Panchayat Act, 1958. In my opinion, this is proper course of action. It cannot be said that the petitioners have committed any of the offences under Sections 420, 468, 471 and 192 all read with Section 34 of I.P.C. which are registered against them while registering the FIR as crime.

9. Shri. S. S. Jadhvar, Advocate for the petitioners also pointed out additional documents produced by him with affidavit in rejoinder dated 17.12.2009 and submitted that on certain conditions the transactions which are contrary to the terms laid down for the purpose of allotment of plots, were regularized by imposing certain penalties. So, it is clear that the disputed transactions were more or less irregular which can be regularized by the Collector.

10. Not being satisfied that the petitioners have committed any of the offences alleged against them, in my opinion, the FIR registered as Crime No.45 of 2009 with Police Station, Bhusawal for offences punishable under Sections 420, 468, 471 and 192 all read with Section 34 of I.P.C. is required to be quashed and set aside only so far as the petitioners are concerned.

11. Hence, the petition is allowed. FIR registered as Crime No.45 of 2009 for aforesaid offences by Police Station, Bhusawal is quashed and set aside, insofar as present petitioners are concerned. However, if police have any evidence against the original transferor or transferee regarding commission of any offence, police are at liberty to proceed against them in accordance with law.

12. Writ petition stands allowed. Rule made absolute accordingly.

Petition allowed.