Pawan Kumar Kohli And Anr vs State Of Jammu & Kashmir

Sanjay Kumar Gupta, J

Through the medium of instant petition filed under Section 561-A Cr.PC, the petitioners inter alia seek quashing of FIR No.7/2016 dated 08.03.2016

registered at Police Station, Vigilance Organization, Jammu against the petitioners for commission of offence punishable under Section 5(1)(d) read

with Section 5(2) of the J&K Prevention of Corruption Act and Sections 468, 471 and 120-B RPC on the following grounds;

i) That the impugned FIR to the extent of implication of the petitioners is totally illegal, arbitrary and bad in the eyes of law, therefore, the same

deserves to be quashed.

ii) That the impugned FIR against the petitioners is further illegal and bad in the eyes of law on the ground that the petitioners have not committed any

offence muchless the offences alleged against them. Whatever action was initiated and taken by the petitioners while serving as Tehsildar and

Patwari at that point of time was strictly in consonance with the provisions of law and was based on the documents which were produced before them

at that point of time. After 16 long years of the alleged occurrence, the petitioners cannot be held guilty of the action which they had taken in

discharge of their official duties.

iii) That registration of impugned FIR against the petitioners is on the basis of the judgment dated 27.05.2011 passed by Custodian (Ex-Officio

Provincial Rehabilitation Officer), Jammu which judgment has not attained the finality and is still subject matter of adjudication in an appeal which is

pending trial before the J&K Special Tribunal, Jammu. Unless and until the said judgment in which the Vigilance Commissioner, Jammu was

requested by the Custodian (Ex-Officio Provincial Rehabilitation Officer), Jammu to hold enquiry attains the finality, it is highly illegal on the part of the

respondent to register the impugned FIR. If in the appeal which is pending consideration before the J&K Special Tribunal, Jammu against the

judgment dated 27.05.2011 is set aside or quashed, then the injury which has been caused to the petitioners by way of registration of impugned FIR,

cannot be healed or cured. The respondent in this case has thus acted in a totally illegal manner and just to harass and victimize the petitioners has

registered the impugned FIR against them with malafide consideration and oblique motive. On this ground also, the impugned FIR deserves to be

quashed.

(iv) That the petitioners, as is apparent from the true and correct facts narrated above, have not committed any irregularity nor is there any allegation

with regard to corruption against the petitioners. Whatever action was taken by the petitioners was in the light of and in reference to the documentary

evidence projected before them by the concerned persons. During the period when the petitioner no.1 was in active service and during the period the

petitioner no.2 remained working in Tehsil Bishnah, nothing was alleged against them and rightly so because the petitioners had not done anything

contrary to legal and factual position existing at that point of time.

v) That the impugned FIR against the petitioners is further liable to be quashed on the ground that none of the ingredients of Section under section 5

(1) (d), 5 (2) of J&K Prevention of Corruption Act, Samvat 2006 and section 468, 471 and 120-B RPC are present as against the petitioners in the

impugned FIR. In absence of any of the ingredients of these sections being present or coming forth from the allegations against the petitioners in the

impugned FIR, the registration of FIR impugned against the petitioners is highly uncalled for and is wholly vitiated, therefore, the same deserves to be

quashed.

vi) That impugned FIR registered by the respondent is as a result of sheer non-application of mind in as much as the respondent has implicated one

Warayam Singh in the impugned FIR without verifying the fact that he was at no point of time posted in Mehmoodpur of Tehsil Bishnah either in the

year 2001 or even prior to the year 2001 or even thereafter. This clearly shows that the respondent by abusing his official position and for reasons

other than legal has registered the impugned FIR.

vii) That the impugned FIR is nothing but an abuse of the process of law as the FIR impugned against the petitioners has been registered for the sole

motive of harassing and victimizing the petitioners despite the fact that from the bare perusal of the allegations as contained in the impugned FIR, no

case muchless any criminal case under any of the sections of J&K Prevention of Corruption Act, Samvat 2006 or Ranbir Penal Code is made out

against any of the petitioner. Therefore, on this ground also, the impugned FIR against the petitioners deserves to be quashed.

viii) That the FIR impugned is being used as a tool of harassing and victimizing the petitioners notwithstanding the fact that the petitioners have not

involved in any offence muchless the offences punishable under aforesaid sections. The respondent has registered the FIR by abusing his official

position which is quite apparent and evident from the perusal of the FIR impugned.

ix) That principles relating to exercise of jurisdiction under Section 561-A of the Code of Criminal Procedure (Section 482 of Central Cr.PC) to quash

complaints and criminal proceedings have been stated and reiterated by Hon'ble Supreme Court in several landmark decisions, reference whereof will

be respectfully made during the course of hearing of the instant petition. The allegations as contained in the impugned F1R and which made basis for

issuance of impugned Government order if are taken at their face value and accepted in their entirety, do not prima facie constitute any offence or

make out the case alleged against the petitioners.

x) That viewed from any angle, the impugned FIR has been registered against the petitioner and prosecution sanction has been accorded against the

petitioner with ulterior motive and consideration, therefore, same cannot stand the test of judicial scrutiny. The impugned FIR and impugned

Govt.order according prosecution sanction against the petitioner, therefore, deserves to be quashed.

xi) That the FIR impugned and impugned Government order issued against the petitioners is nothing but is used as a lever just to cause harm to the

otherwise well reputed image and reputation of the petitioner.

xii) That the FIR impugned and impugned Government order is nothing but abuse of process of law. With a view to prevent the abuse of the process

of law and to otherwise secure the ends of justice, the petitioner seeks indulgence of this court to invoke its inherent jurisdiction under the provisions of

Section 561-A CrPC and quash the FIR impugned and impugned government order.

Brief facts of the case are that petitioner no.1 having the qualification of B.A., L.LB was appointed as Naib Tehsildar in the Revenue Department

of J&K Government in the year 1973 and retired on attaining the age of superannuation as Tehsildar in September, 2004. The petitioner no.2 having

the qualification of 10+2 was appointed as Patwari on 16.09.1989 and is presently working as Naib Tehsildar and posted at Khour in Tehsil Akhnoor

of District Jammu. It is further stated that the Custodian, (Ex-Officio Provincial Rehabilitation Officer), Jammu while deciding a revision petition titled

“Kanta Devi and others vs. Smt. Sheela Wanti†vide order dated 27.5.2011 forwarded the copy of the said order/judgment dated 27.05.2011 to

the Vigilance Commissioner J&K Srinagar for getting the matter enquired into. The Vigilance Organization Jammu carried out some verification into

the allegations contained in the judgment dated 27.05.2011 and after more than five years of the passing of said judgment, the Vigilance Organization,

Jammu has registered an FIR No.07 of 2016 dated 08.03.2016 against four persons which includes the petitioner no.1 for commission of offences

punishable under section 5(1)(d) read with section 5(2) of the J&K Prevention of Corruption Act and sections 468, 471 and 120-B RPC. Although the

name of petitioner no.2 has not been arrayed as accused in the aforesaid FIR, yet the petitioner no.2 has been given to understand that he is also being

implicated in the aforesaid FIR in view of the fact that the petitioner no.2 at the relevant point of time was working as Patwari in the concerned

Panchayat Halqa. The allegations as alleged in the aforesaid FIR are that the parties before the Custodian, (Ex-Officio Provincial Rehabilitation

Officer), Jammu in the revision petition titled “Kanta Devi and others vs. Sheela Wanti†in connivance with the revenue officials have defrauded

the Custodian Department by forging entries in the revenue records and illegally mutated custodian land measuring 16 kanals 15 marlas comprised

under khasra no.217 situated in Village Mehmoodpur Bishnah in their favour which was subsequently sold by accused Sheela Wanti, wife of Khayali

Ram R/o Village Mehmoodpur Tehsil Bishnah through her power of attorney holder, namely, Satish Kumar. It was further alleged in the afore-stated

FIR that as per the Khasra Girdawari register of village Mehmoodpur w.e.f. 1969 to 2001 one Shri Gagu Ram son of Sh. Fulla and other members of

his family were shown in cultivating possession as local allottees of Custodian land measuring 16 kanals 15 marlas comprised in khasra no.217 situated

at Mehmoodpur Bishnah. However, on 13.01.2001, the revenue officials cancelled the Sahat Girdawari of Goggu Ram and others and illegally entered

the name of Sheela Wanti. It has been further alleged in the FIR that the then Patwari entered a wrong report in the khasra Girdwari register to the

effect that the allotment of land in favour of Sh. Goggu was cancelled by the Custodian Evacuees Property Jammu and by the Tehsildar, Bishnah

(Assistant Custodian) which in fact was incorrect as no such order exists in the record. It was further contended in the FIR that there is no allotment

order in favour of Sh. Goggu, who himself was an illegal occupant as such there was no question of cancellation of a non-existing order. It was further

projected in the FIR that on 24.01.2001 the Tehsildar (Assistant Custodian) Bishnah made another illegal entry in the revenue record conferring

occupancy rights upon Smt. Sheela Wanti and allotted the land in her favour. It was on the basis of said illegal entries the Tehsildar finally mutated the

land measuring 9 kanal 11 marlas in khasara no.217 in village Mehmoodpur Tehsil Bishnah under section 3-A of Agrarian Reforms Act in favour of

Sheela Wanti wife of Khayali Ram without any competence; that rest of the allegations in the said FIR are pertaining to Sheela Wanti and her power

of attorney holder. During the period when the aforesaid alleged illegal entries were made in the revenue records, the petitioner no.1 was the Tehsildar

concerned and petitioner no.2 was the Patwari. It is further stated that petitioner no.1 has retired since September, 2004 whereas the petitioner no.2 is

presently working as Naib Tehsildar and posted at Khour in Tehsil Akhnoor of District Jammu; that the order impugned was further challenged by

Darshan Lal’s successors before the J&K Special Tribunal and another revision petition was also filed before the J&K Special Tribunal by one

Vinod Kumar who was successor of Sheela Wanti. Both these revision petitions were clubbed together by the J&K Special Tribunal, Jammu. The

J&K Special Tribunal vide order dated 13.06.2011 directed maintenance of status quo.

On the basis of the judgment dated 27.05.2011 passed by Custodian (Ex-Officio Provincial Rehabilitation Officer), Jammu, the respondent has

registered the impugned FIR No.07 of 2016 dated 08.03.2016 against the petitioners for commission of offences punishable under section 5(1)(d) read

with section 5(2) of the J&K Prevention of Corruption Act and sections 468, 471 and 120-B RPC.

The respondent has filed objections wherein it has been stated that pursuant to the order dated 27.05.2011 passed by the Custodian, Jammu in a

revision petition, titled “Kanta Devi and others Vs. Smt. Sheelawanti,"" a verification was conducted into the allegations that the parties before the

Custodian Jammu in the revision petition in connivance with the revenue officials have defrauded the Custodian Department by forged entries in the

revenue records and illegally mutated Custodian Land measuring 16 Kanals &15 Marlas in Khasra No.217 situated at Village Mehmoodpur, Bishnah,

in their favour, which was subsequently sold by Smt. Sheelawanti w/o Khayali Ram R/o village Mehmoodpur Bishnah through her power of attorney

namely Sh. Satish Kumar. It is further stated that the verification conducted revealed that as per Khasra Girdwari Register of village Mehmoodpur

w.e.f 1969 to 2001 one Sh. Gugu S/o Fulla and other members of his family were shown in cultivating possession as local allottee of Custodian land

measuring 16 Kanals & 16 Marlas falling under Khasra No.217 situated at village Mehmoodpur Bishnah. However, on 13.01.2001 the revenue

officials cancelled the Sehat Girdwari of Gugu and others and illegally entered the name of Smt. Sheelawanti w/o Khayali Ram in the revenue

records. While making entries/attesting mutations in favour of beneficiary Smt. Sheelawanti, the then Patwari entered a wrong report in the Khasra

Girdwari Register to the effect that the allotment of Sh.Gugu recording the land in question has been cancelled by the Custodian Evacuee property

Jammu and Tehsildar Bishnah (Assistant Custodian) which in fact was incorrect as no such order existed on record. There was no allotment order

even in favour of Sh. Gugu, who himself was an illegal occupant, as such there is no question of cancellation of a non-existing allotment order. The

suspect Tehsildar was otherwise also not competent to make such allotment. Moreover, the Evacuee property is the sole subject of the Govt. and

allotment can only be made by the Custodian Department. During the course of verification, it has been further revealed that on 24.01.2001, Tehsildar

(Assistant Custodian) Bishnah made another illegal entry in the revenue record conferring legal occupant rights upon the beneficiary Smt. Sheelawanti

and allotted the land in her favour. On the basis of the said illegal entries the suspect Tehsildar finally mutated the land measuring 09 Kanals and 11

Marlas in Khasra No.217 at village Mehmoodpur Bishnah under section 3-A Agrarian Reforms Act in favour of Smt. Sheelawanti w/o Khayali Ram

without any competence. During the course of verification, it has also been revealed that one Satish Kumar S/o Lachman Dass R/o Bishnah (so called

Power of Attorney Holder) also remained actively associated in the conspiracy by virtue of which the Custodian land was allotted in favour of Smt.

Sheelawanti. The said Satish Kumar firstly obtained power of attorney in respect of the land in question from Smt, Sheelawanti and subsequently

purchased the said land from her for a sum of Rs.80,000/-knowing the fact that land in question is Evacuee property and could neither be sold nor

purchased. It is further stated that the verification conducted, thus, established that Smt. Sheelawanti W/o Khayali Ram in connivance with the

revenue authorities i.e Shri Pawan Kohli, the then Tehsildar Bishnah (now retired) & petitioner no. 1 herein, Shri Waryam Singh, the then Patwari

concerned who misused their official position and Shri Satish Kumar S/o Lachman Dass (power of attorney holder of Smt. Sheelawanti) hatched a

criminal conspiracy in pursuance of which they defrauded the Custodian Department by forging entries in the revenue records and plundered

property/land worth lacs of rupees belonging to the Custodian department. The aforementioned acts of omissions and commissions on part of the

above revenue officials as well as private persons constitute offences punishable under section 5(1)(d) read with Section 5 (2) J&K P.C Act, 2006

and Sections 468, 471 and 120-B RPC. Accordingly a case stands registered against the above mentioned public servants and the beneficiaries.

During investigation of the case, the revenue record of village Mehmoodpur was obtained and copies of mutation No.284 dated 13.01.2001 and 288

dated 20.04.2001, were also obtained. Further investigation revealed that the land measuring 9 Kanal & 11 Marlas of village Mehmoodpur was

recorded in the name of Sh.Gaggi as local allottee in the Khasra Girdwari of village Mehmoodpur and also in register of cancellation of village

Mehmoodpur. It further came forth during investigation on recording of statements of witnesses that the said land was in the name Sh. Gaggi and

after his demise the said land was recorded in revenue record on the name of Sh. Sham Lal and Sh. Darshan Kumar, sons of Sh. Gaggi, and both of

his sons handed over the possession of the said land to one person namely Sh. Satish Kumar in year 2000. The said person Satish Kumar who was a

business man and property dealer of Tehsil Bishnah in order to acquire the said custodian land hatched a criminal conspiracy in connivance with

revenue official the then Tehsildar Bishnah Sh. Pawan Kumar Kohli i.e petitioner No. 1, the then patwari Sh. Shiv Kumar i.e petitioner No.2 and a

lady namely Smt.Sheelawanti (D.P of 1947 having form Alif). During year 2001, petitioner No. 1 in connivance with petitioner No. 2 entered the said

land on the name of Smt. Sheelawanti through mutation Sehat Kasht No. 284 dated 13.01.2001. Further, both the petitioners entered report in register

of cancellation of village Mehmoodpur thereby, issuing an order dated 24.01.2001 vide which the said land i.e 9 Kanal & 11 Marlas of Khasra No.217

of village Mehmoodpur was allotted in the name of Smt. Sheelawanti on the pretext that she is displaced person of 1947 and had shortage in the land

allotted to her as per Form Alif. It is further stated that as per Circular No. R/Reh/64/40-111 dated 02.12.1985, the Tehsildar Bishnah i.e the petitioner

No.1 being Assistant Custodian Bishnah was not competent to make such allotments of land in favour of displaced person of 1947. Moreover, no

application for the allotment of land put forth by. Smt. Sheelawanti before Tehsildar Bishnah was found in the record of Tehsil Bishnah as per the

reply given by Tehsildar Assistant Custodian Bishnah vide letter No. 213/ACB dated 18.10.2016. Subsequently, on the basis of order dated

24.01.2001, petitioner No.1 attested the mutation No 288 dated 20.04.2001 under Section 3-A of Agrarian Reforms Act of 1976. During investigation,

posting details of revenue officials posted in Tehsil Bishnah during the year 2001 were obtained vide letter No.TB/OQ/2016-17/357-58 dated

20.09.2016 which revealed that during that point of time Sh. Shiv Kumar i.e the petitioner no.2 was the patwari of Halqa Chack Avtara and he was

responsible for revenue record of village Mehmoodpur. Hence, instead of Sh. Waryam Singh name of Sh. Shiv Kumar was incorporated in list of

accused persons. The investigation of the case is going on.

Heard learned counsel for the parties and perused the case file.

FIR in the case has been lodged on the basis of order dated 27.05.2011 passed by Custodian. It is apt to reproduce concluding paras of the said

judgment, which read as under:

“I have given thoughtful consideration to the rival contention of the parties and have minutely perused the record, no order of allotment has been

produced by the respondent to justify correction of Girdawari or attestation of mutation under Section 3-A of Agrarian Reforms Act. Order of

allotment by the Provincial Rehabilitation Officer is not passed for attestation of mutation under Section 3-A Ag Ref Act in absence of such order

which does not exist in the records of the Provincial Rehabilitation Officer or Tehsildar (Assistant Custodian) Bishnah.

Thus the mutation is void-ab-inito and is not tenable in case merely because the earlier allottee/allottee’s are alleged to be the witnesses to these

mutations which too has not been established cannot supply genuineness to these mutations.

On the other hand the petitioner is admittedly not in possession of this land measuring 9Kls 11Mls which is an evacuee land and no legal heirs of the

deceased revision petitioner have been able to produce any record or evidence to show that this land was ever been in possession of their

predecessors in interest. Under these circumstances I allow this revision petition to the extent holding the order of allotment dated 24.01.2001 as

nonexistent and consequent attestation of mutation under Section 3-A Ag Ref Act as null and void. I further hold that the legal heirs of the deceased

revision petitioner having not established their possession on the land in question at any point of time and are thus not entitled to restoration of

possession in their favour. Tehsildar (Assistant Custodian) Bishnah is directed to takeover possession of the Evacuee Property land in question forth

with departmentally and get it fenced properly so that the same is utilized for construction of departmental assets. Besides the parties in connivance

with revenue agencies and her power of attorney holder have defrauded the department by forged entries in the revenue records and plundered

property worth lakh’s of rupees by mutating the Evacuee Property land in question illegally, requires to be probed into in order to deter others.

Accordingly, copy of this judgment be submitted to Vigilance Commissioner J&K Srinagar with the request to get the matter enquired into. With this

the revision petition is disposed off. The case file be consigned to records after due completion.â€​

It is worthwhile to mention here that during pendency of this petition, J&K Special Tribunal, Jammu, decided the revision petitions. On 28.03.2018,

Special Tribunal set aside the order of Custodian, on the basis of which FIR was registered. It is apt to reproduce the concluding paras of order dated

28.03.2018 passed by the J&K Special Tribunal, Jammu, which read as under:

“I have considered the arguments advanced by counsels and examined the records available on the file.

Admittedly the dispute before Custodian/PRO pertains to an order dated 24.01.2001 issued by the Tehsildar/Asst.Custodian Bishnah whereby the suit

land has been regularized/allotted in favour of Sheela Wanti, a DP of 1947. While examining the impugned order, it is observed by the undersigned that

the Custodian/PRO while deciding the revision against the order of Tehsildar/Asstt.Custodian has also declared a mutation attested u/s 3-A of

Agrarian Reform Act null and void by stepping into the shoes of others authority. It is a well settled law that the Custodian/PRO has the power to be

exercised under EP Act and Rules thereof but has absolutely no jurisdiction to pass any order under Agrarian Reform Act. It is well recognized law

that an order passed by an authority without jurisdiction is not only invalid but also unacceptable before and non existence in the eyes of law and

cannot be made maintainable or justified by any stretch of imagination.

While examining the order 14.05.2009 passed by Hon’ble High Court it is specifically directed that “to sum up, the Custodian Jammu shall

decide the revision as pending against the order of allotment dated 24.01.2001 within a period 6 weeks. Resultantly, Jt. Agrarian Reform

Commissioner shall thereafter decide the appeal as is pending before him within three weeks. A simple reading of order dated 27.05.2011 under

revision passed by Custodian/PRO shows that the court below has passed the impugned order totally in disregard to the directions of Hon’ble

High Court so on this point also the impugned order is liable to be quashed. The citation made by petitioner of an order dated 09.07.1990 passed by this

Tribunal in a similar circumstances of case which has been upheld by the Hon’ble High Court vide order dated 29.11.1990 passed in Writ Petition

No.456 of 1990 in case titled Custodian vs Faquir Kour. The Custodian thereafter filed a LPA(OWP) No.176/90 in case titled Custodian Vs Faquir

Kour which was also dismissed by the Division Bench vide order dated 29.01.1991. Finally the rights of DP family in that case were challenged by the

Custodian before the Hon’ble Supreme Court of India through SLP which was also dismissed vide order dated 08.07.1991. All the merits and

demerits of a DP family for his entitlement and allotment of land have been discussed in detail by this Tribunal in its order dated 09.07.1990 which has

been upheld by the Hon’ble Supreme Court as discussed above. The authority reported as AIR 1980 SC 142 quoted in the order dated 09.07.1990

passed by this Tribunal is not only amply clear but squarely applicable to the facts and circumstances of the present case. In that authority the

Hon’ble Supreme Court has held that “between funeral fire and mental agony it is the later which is more devastating for, funeral fire burns

only the dead body while the mental agony burns the living oneâ€​ the symptoms of which are also visible in the instant matter/case.

The documents placed by the petitioner on record of the case shows that he purchased the suit land on 28.12.2002 through an agreement to sell which

is a valid document, on the basis of which the claim of the petitioner who is in possession of the suit land, gets more strength.

In view of the discussion made hereinabove, it is held that petitioner (Revision File No.STJ/14/2018) is entitled for all the benefits enshrined to him

through Smt.Sheela Wanti DP and after the death of said Sheela Wanti on the basis of Power of Attorney executed by her legal heirs. It is further

held that Darshan Kumar or his L/Rs have no locus standi to challenge the order of regularization of suit land made by Tehsildar/Asst Custodian

Bishnah in favour of DP. Accordingly, the Revision (File No.STJ/14/2018) is accepted, impugned order dated 27.05.2011 passed by Custodian (Ex-

Officio PRO Jammu) is set aside. Resultantly, the order passed by Tehsildar/Asstt. Custodian Bishnah dated 24.01.2001 for the suit land is also

upheld. Also, the order passed on Mutation No.284 (Sehat Indraj) as well as order passed on Mutation No.288 u/s 3-A of Agrarian Reforms Act,

1976, which were illegally set aside by Custodian (Ex-Officio PRO Jammu), are also restored. The petitioner is at liberty to approach the revenue

authority for necessary entry (Amal Dramad) of the suit land in his favour in the revenue record. Stay orders/status quo order if any issued by this

Tribunal in all the above mentioned revision petitions i.e are vacated. Record of the court below be returned along with copy of this order.

File be consigned to records after due completion.â€​

From bare perusal of order of Special Tribunal, it is evident that, Tribunal has categorically held that order of Custodian is in clear disregard to

direction of Hon’ble High court passed in OWP Nos.02/2008 c/w OWP No.224/2008 dated 14.5.2009. The relevant paras of judgment dated

14.05.2009 of High Court read as under:-

“14. The first question to be addressed is as to whether allotment order dated 24.01.2001 in favour of the petitioner, Sheelawanti is valid, same is to

be decided by the Custodian before whom revision is pending. Determination of that issue will have effect, on the result of revision pending before

Joint Agrarian Reforms commissioner against mutation No.288 dated 20.04.201 attested under Section 3-A of Ag. Act.

To sum up the Custodian, Jammu shall decide the revision as is pending against the order of allotment dated 24.01.2001 within a period of six

weeks. Resultantly Joint Agrarian Reforms Commissioner shall thereafter decide the appeal as is pending before him within three weeks.

For safeguarding the interest of both the parties, meanwhile, status quo on spot i.e., present position on spot shall not be disturbed, letter/order

dated 31.10.2005 shall be ignored. It shall be open for the custodian, Jammu to consider the grant of interim protection from time to time for

safeguarding the Evacuee property in question so as to avoid dis-obedience to the order of status quo until passing of his final orders in the appeal.

Copy of the order be sent to J&K Special Tribunal Jammu and Joint Agrarian Reforms Commissioner for information and compliance.

Disposed of as aboveâ€​.

As per High Court order dated 14.05.2009, Custodian was only required to see whether allotment order dated 24.01.2001 made in favour of

Sheelawanti was valid or not; only thereafter Joint Agrarian Reforms Commissioner was to decide the validity of mutation no.288 dated 20.04.2001;

but Custodian instead has set aside the mutation no.288 dated 20.04.2001 attested under section 3-A of Agrarian Reforms Act. The order of

Custodian would clearly reveal as if custodian was deciding the correctness of mutation as Joint Agrarian Reforms Commissioner. Therefore

Custodian exercised the jurisdiction which was not vested to him. Custodian was only to decide the validity of allotment order dated 24.01.2001. So

allegations against the petitioners that they in conspiracy with Sheelawanti (Displaced person from Alif) and one land property dealer Satish Kumar,

got land measuring 16 kanal 15 marala under Kh.no.217 situated at Mehmoodpur entered in the name of Sheelawanti through mutation Sehat Kasht

no.284 dated 13.01.2001, cannot sustain at this stage. Because all these controversies are pending before competent authorities. Further the basic

order of Custodian on the basis of which FIR was registered has already been set-aside by J&K Special Tribunal.

In view of above discussion, I am of considered opinion that at this stage lodging of FIR is sheer abuse of process of law. It is quashed. However,

it will not debar the respondent to lodge fresh FIR, if any such allegations are finally proved as correct by competent court. This petition is disposed off

accordingly.

This judgment is pronounced by me, in terms of Rule 138(3) of the Jammu and Kashmir High Court Rules, 1999

Dhiraj Singh Thakur, J