Dharmendra Singh Phughat vs State Of Uttarakhand & Another

Sharad Kumar Sharma, J

A very interesting and a very peculiar situation has arisen for consideration before this Court, it is to the effect with regards to the controversy relating to claim, which was raised by the two States over the irrigation canal, which has been a bone of contention between the two States, as to whether the property lying in Gang Nahar, Haridwar, Roorkee, whether it vests with the State of Uttar Pradesh or with the State of Uttarakhand.

The fact is that regards the management/ownership of the irrigation canal at the time of creation of the State of Uttarakhand w.e.f. 09.11.2000 there was a prior notification issued by the Government of India on 07.11.2000, wherein, the Government of India took a decision by virtue of the aforesaid Government Order that the property, which was lying in the irrigation canal and which was being managed by the Ganga Management Board, would continue to be vested with the State of Uttar Pradesh. A very long drawn controversy arose with regards to the vesting of the property in question whether with the State of Uttarakhand or with the State of Uttar Pradesh. Consequently, challenging the propriety of the notification dated 07.11.2000 issued by the Government of India vesting the property with the State of Uttar Pradesh it was put to challenge in a public interest litigation, being WPPIL No. 2 of 2000 'Arvind Chauhan vs. Union of India & Others. In the PIL, which came for consideration before the Division Bench of this Court dated 29.06.2009, the Division Bench of this Court took the following view:

"13. On a totality of circumstances, therefore, and based on the aforesaid reasoning, we allow this Writ Petition and issue herein below mentioned directions and pass the following orders.

(i) Notification dated 7th November, 2000, impugned in the Writ Petition is quashed and set aside with all the consequences operating qua respondent No. 2 as well as respondent No. 3.

(ii) Respondent No. 2 is hereby directed by us, by issuance of a writ of mandamus, is handover the possession of all the properties to respondent No. 3 covered under Notification dated 7th November, 2000.

(iii) As far as the Agreement dated 15th November, 2007 is concerned, it is held not to have been arrived at under or in terms of Section 79 of the 2000 Act. This Agreement being bilateral in nature, has been drawn up and executed between the Secretaries of the two Governments in the exercise of the States' normal executive power under Article 157 of the Constitution of India. Therefore, there is no occasion for this Court to issue any direction qua respondent No. 1 to approve, ratify or implement the Agreement or take any other step as far as this Agreement is concerned."

Ultimately the effect of the judgment was that the notification of vesting the property with the State of Uttar Pradesh dated 07.11.2000 was set aside. Consequently, the property was directed to be reverted back and to be vested with the State of Uttarakhand. The Division Bench issued a writ of mandamus commanding State of Uttar Pradesh to hand over the possession of the property forthwith to the State of Uttarakhand and further as far as the propriety of the agreement dated 15.11.2007 is concerned, it was held that it ought not to have been arrived at or was in violation of in terms of Section 79 of the Reorganization Act, as Section 79 contemplated that whenever there happens to be a controversy with regards to the vesting of property lying within the territory of two States as a consequence of the reorganization, that has to be settled/vested by way of a bilateral agreement to be arrived at between the two States and particularly in relation to the provisions contained under Section 79 of the Reorganization Act, constituted to be the part of Part 9 of the Reorganization Act, pertaining to, "The Distribution of Water Resources Development and Its Management". Section 79 of the Act is quoted hereunder:

"79. Water Resources Development and its Management

(1) Notwithstanding anything contained in this Act but subject to the provisions of section 80, all rights and liabilities of the existing State of Uttar Pradesh in respect of water resource projects n relation to-

(i) Ganga and its tributaries traversing the successor States excluding the Upper Yamuna River up to Okhla; and

(ii) Upper Yumuna River and its tributaries up to Okhla, shall, on the appointed day, be the rights and liabilities of the successor States in such proportion as may be fixed, and subject to such adjustments as may be made, by agreement entered into by the said States after consultation with the Central Government, or, if no such agreement is entered into within two years of the appointed day, then, the Central Government may, by order, determine within one year having regard to the purposes of the project: Provided that the order so made by the Central Government may be varied by any subsequent agreement entered into by the successor States after consultation with the Central Government

(2) An agreement or order referred to in sub-section

(1) shall, where an extension or further development of any of the projects referred to in that sub-section after the appointed day is undertaken, be the rights and liabilities of the successor States in relation to such extension or further development

(3) The rights and liabilities referred to in sub-sections

(1) and (2) shall include-

(a) The right to receive and utilise the water available for distribution as a result of the projects; and

(b) The right to receive and utilise the power generated as a result of the projects, but shall not include the rights and liabilities under any contract entered into before the appointed day by the Government of the existing State of Uttar Pradesh with any person or authority other than Government."

For the reason being that it deals with the manner in which the water of river Ganges and river Yamuna was to be shared between the two States as a consequence of reorganization and it also provided vesting with of the right of its management with the Board to be constituted under Section 80 of the Reorganization Act. As a consequence of provisions contained under Section 80 of the Reorganization Act the Central Government had constituted a Board for the purposes of management of the irrigation canal as provided under Section 79 and its constitution was detailed under Section 80 of the Reorganization Act, which is quoted hereunder:

"80. Constitution and functions of the Ganga Management Board

(1) The Central Government shall constitute a Board to be called the Ganga Management Board (hereinafter referred to as the Board) for referred to in sub-section (1) of section 79 for any or for a combination of the following purposes, namely:- administration, construction, maintenance and operation of projects (i) irrigation; (ii) rural and urban water supply; (iii) hydro power generation; (iv) navigation; (v) industries; and (vi) for any other purpose which the Central Government may, by notification in the Official Gazette, specify

(2) The Board shall consist of-

(a) A whole-time Chairman to be appointed by the Central Government in consultation with the successor States;

(b) Two full time members, one from each of the successor States, to be nominated by the respective State Government;

(c) Four part-time members, two from each of the successor States, to be nominated by the respective State Government;

(d) Two representatives of the Central Government to be nominated by that Government

(3) The functions of the Board shall include

(a) The regulation of supply of water from the projects referred to in clause (i) of sub-section

(1) of section 79 to the successor States having regard to-

(i) Any agreement entered into or arrangement made covering the Government of existing State of Uttar Pradesh and any other State or Union territory, and

(ii) The agreement or the order referred to in sub-section (2) of section 79;

(b) The regulation of supply of power generated at the projects referred to in clause (i) of sub-section (1) of section 79, to any Electricity Board or other authority in-charge of the distribution of power having regard to-

(i) Any agreement entered into, or arrangement made covering the Government of the existing State of Uttar Pradesh and any other State or Union territory, and

(ii) The agreement or the order referred to in sub-section (2) of section 79;

(c) The construction of such of the remaining on-going or new works connected with the development of the water resources projects relating to the rivers or their tributaries as the Central Government may specify by notification in the Official Gazette

(d) Such other functions as the Central Government may, after consultation with the successor States entrust to it."

Considering the implications of Section 79 to be read with Section 80 to read together, the aforesaid direction was issued by the Division Bench in its judgment dated 29.06.2009. The judgment thus rendered by the Division Bench of this Court rather contemplated that there ought to have been an effort made jointly with regards to the settlement of the controversy between the two States by attracting the constitutional mandate and the provisions pertaining to the powers of the two States to settle down the issue by virtue of an agreement between the two States. We may not be required to restrain ourselves for a longer period on the said controversy for the reason being that certain development which took place during the intervening period from 29.06.2009 till the passing of the status quo order by the Hon'ble Apex Court in a SLP preferred by the State of U.P. being S.L.P. No. 17826 of 2009 'State of U.P. vs. Arvind Chauhan & Others', which was emanating from the judgment of the WPPIL No. 2 of 2009 'Sri Arvind Chauhan vs. Union of India & Others' dated 29.06.2009.

On filing of the PIL the Hon'ble Apex Court passed an order of status quo to be maintained by the two States during the pendency of the SLP before the Hon'ble Apex Court. What is important herein is that after passing of the judgment by the Division Bench on 29.06.2009 a direction was issued by the District Magistrate, Haridwar, on 09.07.2009, whereby the District Magistrate has directed the officers of the Irrigation Department as well as the officers of the Revenue Department to make efforts to take over the possession of the property in question in compliance of the judgment of the Division Bench dated 29.06.2009 and simultaneously the District Magistrate has also issued directions to the revenue authorities to make the necessary entries in the revenue records pertaining to the implications, which was falling from the judgment dated 29.06.2009.

It chanced so that as a consequence of the passing of the order dated 09.07.2009 by the District Magistrate, the officers of the Uttarakhand Government tried to take over the possession of the property, which the present applicant contends that it continued to be the property of the State of Uttarakhand in the light of the controversy, which was pending consideration before the Hon'ble Apex Court. It was under the said Act that the officers of the State of U.P., who are named in the FIR, which has been lodged by the officials of the State of Uttarakhand as against the 35-40 employees of the State of U.P. alleging thereof that they were involved in the commission of an offence under Sections 147, 148, 504, 506 of IPC and Section 3 of the Destruction of Public Properties Act, 1984.

Before venturing further in order to appreciate the controversy in its right perspective, it becomes essential to interpret the language of Sections 147, 148 of the Indian Penal Code, which is quoted hereunder:

"147. "Punishment for Rioting"

Whoever is guilty of rioting, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.

"Rioting armed with deadly weapon"

Whoever is guilty of rioting, being armed with a deadly weapon or with anything which, used as a weapon of offence, is likely to cause death, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both."

On its simplicitor reading, the provisions contending under Sections 147 and 148 of the Indian Penal Code contemplates of imposing the punishment on a person concerned, who is held guilty of rioting not for an individual benefit, its rather a social menace, provides shall be punished with the description of sentence as given thereunder. Rioting word has been defined under Section 146 of the Indian Penal Code. Section 146 of the Indian Penal Code provides that rioting would amount to use blows or violence, which is being used by a group of people having a 'unlawful assembly', and the members of such group who had been unlawful constituted had indulged in commission of an offence under Section 147 to be read with Section 148 of the Indian Penal Code. The word 'unlawful assembly' would mean to join to perform an illegal Act with a common benefit of a community or group or it would not be for an individual benefit. It means a revolt for a common social or commercial cause.

In the case at hand the allegation was that immediately after rendering of the judgment and in pursuance to the mandamus which was issued by the Division Bench on 09.07.2009, and as a consequence thereto, a direction which was issued on 24.07.2009 by the Executive Engineer, for taking over of the possession, the officials of Uttarakhand Irrigation Department had issued the directions to the accused persons, who were the employees of the department, to take over the possession of the property in pursuance to the judgment of the Division Bench dated 29.06.2009. The question, which arises for consideration, is that whether at all in the given set of circumstances, whether when there was a Division Bench's judgment existing in favour of the State of Uttarakhand as to where the accused persons, who were employees of the 5th Irrigation department, who in their official discharge of duties, were otherwise required to safeguard the property, which according to them stood vested with them by the notification of the Government of India dated 07.11.2000, though it stood quashed by the Division Bench's judgment, but the fact remains that in a very peculiar circumstances where the judgment stood in favour of the State of Uttarakhand and the officials of the State of Uttar Pradesh, who were claiming their right over the property was in pursuance to the notification dated 07.11.2000 issued by the Government of India, they fell in rift with one another on an incident which took place on 28.07.2009 for which an FIR was lodged.

It is contended by the complainant Mr. A.B.L. Mittal, who was then working as an Assistant Engineer of the IV Irrigation Division, Haridwar, for State of Uttarakhand in an FIR No. 237/2009, Case Crime No. 336 of 2009 dated 28.07.2009 under Sections 147, 148, 504 & 506 of IPC and Section 3 of Destruction of Public Properties Act. He had leveled an allegation in which the FIR as against the six accused persons named in the FIR for the commission of an offence under Section 147 to read with Section 148 of the IPC.

On the basis of the set of allegation, the chargesheet dated 22.09.2009, which was leveled against the present applicant was that he by virtue of an act of 28.07.2009 at 3:00 PM had tried to forcefully take over the possession of the VIP Ghat and other properties, which otherwise according to the notification of Government of India dated 07.11.2000 was vested with the State of U.P.

The contention of the petitioners is that first of all they were the employees of the State of Uttar Pradesh and are in possession of the property, secondly, they were vested with the responsibility to protect and take care of the property which stood vested with the State of Uttar Pradesh and its officials posted there at the relevant time, thirdly, since they being officials of the State of Uttar Pradesh, who were deployed for the purposes of protecting the property for the State of Uttar Pradesh, they were supposed to safeguard the same and, hence, if there was any act of taking over of possession conducted by the officials of the Uttarakhand Irrigation Department, they were bound to retaliate the same for the reason that as against the judgment rendered by the Division Bench they had already initiated the steps for taking the possession before they have taken a recourse of giving a challenge to it before the Hon'ble Apex Court, but be that as it may, as a consequence of the set of allegation, which has leveled in the FIR, first of all this Court is of the view that the congregation of six employees of State of Uttar Pradesh, who are alleged to have joined together, cannot be termed as unlawful assembly for the purposes of attracting the provisions of Section 146 of the Indian Penal Code and if that be not so, in that eventuality when the basic element of unlawful assembly was missing, in the eventualityy, the punishment under Section 147 of IPC cannot be attracted. Secondly, if we go through the contents of the FIR in precision then we would realize that the offence under Section 148, which is rioting with armed and with deadly weapon is an ingredient for the commission of an offence under Section 148 of IPC, is not made out for the reason that in the FIR there is no such allegation prima facie, which has been leveled against the present applicants that they were ever instrumental in using any weapon in the process of retaliating the efforts of the employees of the State of Uttarakhand in taking over the possession of the property of the U.P. Irrigation Department, i.e. Gang Nahar and VIP Ghat etc., but in pursuance to the FIR since the petitioners were apprehending their arrest they had preferred a writ petition before this Court being Criminal Writ Petition No. 698 of 2009 'Kiran Pal Singh & Others vs. State of Uttarakhand & Others, wherein, the learned Single Judge of this Court had granted an interim order of staying of their arrest by the order dated 11.08.2009.

Be that as it may, as against the FIR which was registered being Case Crime No. 336 of 2009, the police has conducted an investigation and submitted a chargesheet being Charge Sheet No. 286/09 dated 22.09.2009 and it was recorded in the finding that the offence under Sections 147, 148, 353, 322, 504 & 506 of IPC and Section 3 of Destruction of Public Properties Act, was made out as against the 35-40 unknown accused persons including the name of the applicant in the chargesheet. Consequently, based on the chargesheet a criminal case was registered as against the present applicant being Criminal Case No. 3241 of 2009 'State vs. Dharmendra Singh + 22 others' in which on the basis of the chargesheet dated 22.09.2009 the applicants were summoned by the order dated 16.10.2009, which is under challenge before this Court in the present C482 application along with the orders impugned, the challenge is also given to the Criminal Case No. 3241 of 2009 'State vs. Dharmendra Singh + 22 others'. In the meantime, it would be relevant to mention that as a consequence of the judgment which was put to challenge before the Hon'ble Apex Court at the behest of the State of Uttar Pradesh an SLP being SLP No. 17826 of 2009 was preferred in which Hon'ble Apex Court vide its interim order dated 28.07.2009 had directed the parties to maintain the status quo and further more, now as it has been brought on record that after the aforesaid interim order the proceedings before the Hon'ble Apex Court was culminated by the judgment dated 18.10.2012 of the Hon'ble Apex Court, whereby, the Hon'ble Apex Court while adjudicating the SLP, finally has issued a direction to the Principal Secretaries of the two States to sit together and to resolve the controversy pertaining to the vesting of the property of the irrigation canal to either of the contesting States. Thereafter the Hon'ble Apex Court decided the SLP by the judgment dated 18.10.2012 with the aforesaid direction, and considering the fact that the Central Government has already initiated certain proceedings for issuing direction and notification in pursuance to the directions issued by the Hon'ble Apex Court dated 18.10.2012, the SLP was disposed of with a direction that an amicable settlement may be resolved between the two States and however it was made clear by the Hon'ble Apex Court that this exercise was to continue irrespective of the decision to be rendered in the Special Appeal and it was left open that if at all any party to the efforts of agreement as directed, which is being taken in pursuance to the judgment of the Hon'ble Apex Court, is aggrieved, may yet again have a liberty to approach before an appropriate forum.

In pursuance to the judgment of the Hon'ble Apex Court as rendered on 18.10.2012 the Principal Secretaries of the two States sat together and they conducted a meeting on 02.02.2015 and ultimately it was resolved between the Secretaries of the two States that the property of the Irrigation Department, which was in dispute in the notification which was issued on 07.11.2000 by the Government of India, and which was a subject matter of consideration in the SLP, would now ultimately it stand vested with the State of Uttar Pradesh, as would be apparent in view of the pleadings raised in paragraph 4 of the affidavit as submitted by the applicants, wherein, a true copy of the minutes of the meeting, which was held between the two Secretaries of the States was brought on record. Meaning thereby, the stage upto which the dispute has in fact reached now, rather the controversy pertaining to the vesting of the property in pursuance to the directives of the Government Order dated 07.11.2000 issued by the Government of India stood settled in pursuance to the meeting, which was held between the Secretaries of the two States on 02.02.2015, as well as that of 26.12.2016. The detail of the meetings which was conducted between the two States finds reference in the details of the minutes of the meeting which was conducted on 12.12.2016.

This controversy in the present C482 application is not dealing with the issue pertaining to the vesting of the property of the irrigation canal, which was managed by the Ganga Management Board, but here the question which is being considered, is pertaining to the set of allegations which was arising out of the FIR which was lodged against the present applicant in pursuance to the FIR registered against them on 28.07.2009 as well as the chargesheet dated 22.09.2009 and consequent to the initiation of the proceedings which was registered as Criminal Case No. 3241 of 2009 'State vs. Dharmendra Singh + 22 others'.

The question which now arises for consideration is as to whether at all it is now essential to proceed with the said criminal case in the light of the subsequent developments, which has been issued by the Hon'ble Apex Court and the ultimate decision, which has been arrived at between the two States of vesting over of the property with the State of Uttar Pradesh. Even otherwise also, looking to the set of allegation in the FIR and the findings which has been recorded in the chargesheet atleast the offences under Section 147 or 148 is not made out as against the present applicant for the reason that they at the relevant point of time when the set of allegations was leveled against them in the FIR they were rather discharging the responsibilities in their official capacity in the light of the judgment of Division Bench dated 29.06.2009 rendered by the Division Bench, which was entertained by the Hon'ble Apex Court by that point of time, i.e. the order was passed only on 28.07.2009, and when if any official during the course of discharging of his official duty is alleged to have committed an offence under Sections 148 and 149 it cannot be said that it was a unlawful assembly for the reason that the presence of the applicant and other officials of the irrigation department at the VIP Ghat where the incident is said to have occurred was nothing but an act of safeguarding a property of the State of Uttar Pradesh from being taken over in their official discharge of duties, which was otherwise under their officials control and thus their coming together and opposing the actions of the employees of the State of Uttarakhand, in taking over of the possession of the property cannot be termed as an unlawful assembly in order to attract the provisions of Section 148.

Apart from it, there is no other allegation as such leveled by the prosecution against accused applicant that at any stage of the proceedings before any Court, that for the act of 28.07.2009 in fact was an act which was in an official discharge of duty and it could not be termed as an unlawful assembly for which the applicant could be said that he has utilized any weapon as such for commissioning of the alleged offence under Section 148, because it has never been the case of the complainant/respondent in the FIR, that while the applicant was opposing the action of taking over the possession by the employees of the State of Uttar Pradesh, they have ever used any deadly weapon nor it has ever been the case as on account of the assault, while commissioning of an act under Section 147 or under Section 148 any of the officials of the State of Uttarakhand were ever injured.

It would also be relevant to point out at this stage that though the FIR was registered under Sections 147, 148, 504 and 506 of IPC, but later on when the investigation was completed the Investigating Officer has already charged the applicant for an offence under Sections 353 and 332 of the IPC. It would be relevant to mention that in view of the reasoning which has already been given above for the purposes of attracting an offence under Section 332 of IPC, its essential ingredient is a voluntarily causing hurt to deter a public servant from his duty. This would not be a case at hand for the reason that under the factors already narrated above, the applicant being an officer of the public body was performing his duty and he was not voluntarily causing hurt to any other common person, hence, no allegation could be said to be made out either under Section 332 or under Section 353, which relates to assault or a criminal force to deter a public servant because in the set of allegations and evidence on record, it had been nowhere the case at any point of time that it was a criminal assault by any weapon upon any public servant, which voluntarily intended to injure a person and in particular a public servant and, hence, the petitioner cannot be attributed with the set of allegations leveled in the chargesheet against him.

Even so much so, if we go through the chargesheet and the FIR the allegation pertaining to Section 3 of the Destruction of Public Properties Act, too is not made out because no such allegation has been leveled either in the FIR or in the chargesheet with regards to any such act being conducted by the present applicant in commissioning of the alleged offence as referred in the FIR pertaining to Section 3 of the Act is made out.

It may not be out of place to mention at this stage that at the time when the present Court is considering the effect of the criminal proceedings registered by way of Criminal Case No. 3241 of 2009 'State vs. Dharmendra Singh + 22 others', which is pending before the Chief Judicial Magistrate, Haridwar, for the offence under Sections 147, 148, 353, 332, 504 & 506 of IPC in fact all the controversies in pursuance to the decision subsequently rendered by the Hon'ble Apex Court and in pursuance to the meeting of the Secretaries, which was held between the Secretaries of the two States, which has been consistently held that in 2018 and the property has been finally vested with the Irrigation Department of State of Uttar Pradesh, the entire controversy pertaining to the settlement of rights in relation to the said property stood settled after the meeting between the two Secretaries of the two States, which was ultimately held and decided on 24.06.2018.

In view of the fact that now the dispute stands settled, the property of the Irrigation Department of Gang Nahar now finally stands vested with the State of Uttar Pradesh, in terms of the aforesaid settlement, which has been arrived at. Considering the fact that the set of allegation has not specified the terms and conditions of Sections 147, 148, 332 and 335 of the Indian Penal Code or under Section 3 of Destruction of Public Properties Act and more particularly, when as it has already been observed that the applicant was not performing any independent act of offence, but rather was discharging its public duties vested with them to safe guard the property, which was vested with the State of Uttar Pradesh, that he cannot be said that he was liable for commission of an offence under Sections 147, 148, 332 and 335 of IPC.

Consequently, continuing with the criminal case being Criminal Case No. 3241 of 2009 'State vs. Dharmendra Singh + 22 others' would be nothing but a futile exercise in view of the reasons which has already been assigned above and it would detrimental to the interest of the public servants who had performed their duties in their official capacity in an official discharge of duties on the instructions of their superiors and hence, the Criminal Revision No. 3241 of 2009 'State vs. Dharmendra Singh + 22 others' deserves to be quashed.

Accordingly, the same is quashed and the C482 application is allowed.