HIGH COURT OF JUDICATURE AT ALLAHABAD
Reserved
AFR
CRIMINAL APPEAL NO. 3000 OF 2003
Kailash Sahkari Avas Samiti Limited, Kanpur Nagar, through it's President Shaila Nath Srivastava.............................................................Appellant
Versus
State of U.P. and others...................................................Respondents.
Hon'ble Vinod Prasad J
In the most chequered background facts germinating this appeal, the pivotal of mooted question to be adjudicated peripheries in a rather narrow compass as to the scope and interpretation of section 17 of U.P. Gangster's and Anti-Social Activities (Prevention) Act (Act VII of 1986), hereinafter referred to as the Act, and entitlement to possession there under, on the peculiar facts and circumstances of this appeal.
Appellant Kailash Sahkari Avas Samiti, hereinafter referred to as Samiti (Society), through it's President Shaila Nath Srivastava, has preferred this appeal, challenging impugned judgement and order dated 19.5.2003, passed by Special Judge, Gangster's Act, Kanpur Nagar, in case no. 96 of 1987, Kailash Sahkari Avas Samiti versus Nand Lal and others, u/s 16/17 of the Act, P.S. Nawab Ganj, district Kanpur Nagar, by which impugned order Special Judge, Gangster's Act, has ordered that various involved landed case properties, be released in favour of respondents no. 2 to 18, u/s 17 of the Act, subject to the litigation pending in the competent court, and at the same time directing appellant Samiti and contesting private respondents to get their rights and title adjudicated and determined in the competent civil and revenue courts.
Narrated concisely, a glimpse of background facts indicate that the property involved in the case, which is subject matter of dispute, was originally owned by one Lala Gurdeen who was zamindar of village Jewra Nawabganj, district Kanpur Nagar. Lala Gurdeen had married twice. From his pre-deceased wife he had a daughter Hazaro Kunwar, who had two sons Maharaj Bahadur and Vijai Bahadur. From his second wife namely Amrit Kunwar, Lala Gurdeen had two daughters Mewa Kunwar, and Prago Kunwar. Mewa Kunwar was survived by his son Ram Dayal and grandson Madho Dayal. Lala Gurdeen expired on 10.12.1861. After demise of Lala Gurdeen, his widow second wife and his three surviving daughters had alienated certain properties, albeit they were limited owners. Smt. Amrit Kunwar died on 1.8.1880. After their demise, the three daughters inherited their real estate as limited owners without any alienation/transferable rights. Smt. Prago Kunwar lost breath on 8.7 1907, Hazaro Kunwar died on 24.1.1914, and Mewa Kunwar expired on 14.6.1923.. For succession of properties between sons of Hazaro Kunwar and Mewa Kunwar, namely Maharaj Bahadur, Vijai Bahadur, and Ram Dayal, two original suits were filed and litigation ensued in between them. First suit O.S.No. 25 of 1935, was filed by Maharaj Bahadur and Vijai Bahadur as plaintiffs claiming 2/3 share in the estate and second O.S. No. 34 of 1935 was instituted by Madho Dayal s/o Ram Dayal and grandson of Mewa Kunwar, claiming 1/3 share in the property. Trial court partly decreed both the suits on 4.10.43 as it held that most of the alienations made by the limited owners were illegal. For the reliefs, in respect of which both the suits were dismissed, two FAs were filed against trial court's judgement and decree in this court being FA Nos. 239 of 1945, and 171 of 1946. Both the FAs were judgmented by this court 14.5.63 and this court also concurred that most of the alienations made by the limited owners were illegal. However, it remanded the case back to the trial court to consider certain alienations made in favour of various persons, which also included alienation made in favour of Brahmavart Sanatan Dharm Mahamandal defendant no. 8 in the suit and also in respect of defendants no. 9 to 22 thereof. Order passed in above FAs, dated 14.5.63, was challenged by defendant no. 8 and 9 to 22 in the Hon'ble Supreme Court in civil appeals no. 636 to 639 of 1971. The apex court upheld certain part of trial court judgement and set aside remand order passed by this court.
Case of appellant Samiti is that it is a registered housing society and it allots plots to it's members on no profit no loss basis. Through various registered sale deeds of different dates it had purchased lands, which earlier consisted of erstwhile estate of Lala Gurdeen, from it's lawful owners. Details of various purchases are mentioned in separate Supplementary affidavit dated 8.10.2007, filed by the appellant. The disputed properties were mentioned in schedule Aa, Ba, Sa,Da,Ya,Ra and La. All these lands were non ZA, non - agricultural lands and were recorded as Usar, Banjar etc.
Schedule "Aa" was concerned with plot no. 71 to 76 of Mohal Parago Kunwar. Through registered sale deeds from it's registered owners mentioned in Khawat (Register of ownership) appellant Samiti had purchased said plots and, through Revenue case no. 267 of 1985, decided on 24.9.85, appellant Samiti had got it's name mutated over said plots as owners and since then it continued to be in possession.
Schedule "Ba" related to plot no. 61 of Mohal of Dargahi Lal, which too was purchased by appellant Samiti through registered sale deed from it's registered owners and, through revenue case no. 270 of 1985, decided on 24.9.85, appellant Samiti had got it's name mutated over said plots as owners and since then it continued to be in possession.
Schedule "Sa" related to plot Nos.61 (part) and 68 of Mohal of Dargahi Lal which too was purchased by appellant Samiti through registered sale deed from it's registered owners and, through revenue case no. 269 of 1985, decided on 24.9.85, appellant Samiti had got it's name mutated over said plots as owners and since then it continued to be in possession.
Schedule "Da" related with plot no. 78 of Mohal of Dargahi Lal which too was purchased by appellant Samiti through registered sale deed from it's registered owners and, through revenue case no. 2, decided on 30.1.87, appellant Samiti had got it's name mutated over said plots as owners and since then it continued to be in possession.
Schedule "Ya" related with plot no. 61 (Part) of Mohal of Hazaro Kunwar which too was purchased by appellant Samiti through registered sale deed from it's registered owners and, through revenue case no. 3, decided on 30.1.87, appellant Samiti had got it's name mutated over said plots as owners and since then it continued to be in possession.
Schedule "Ra" related with plot no. 217 Mohal of Hazaro Kunwar which too was purchased by appellant Samiti through registered sale deed from it's registered owners and, through revenue case no. 266 of 1985, decided on 24.9.85, appellant Samiti had got it's name mutated over said plots as owners and since then it continued to be in possession.
Schedule "La" related with plot no. 421 of Mohal of Shitala Prasad, Parago Kunwar, Mewa Kunwar and Dargahi Lal which too was purchased by appellant Samiti through registered sale deed from it's registered owners and, through revenue cases no. 264 of 1985,265 of 85, 268 of 85, 270 of 85, decided on 24.9.85, appellant Samiti had got it's name mutated over said plots as owners and since then it continued to be in possession.
On the basis of aforementioned revenue court proceedings name of appellant Samiti was also entered in Khewat( register of ownership).
Further case of appellant Samiti is that respondents are antisocial elements and they indulge in land grabbing. After purchase and mutation of it's name as owners in the revenue records, when the appellant Samiti started levelling and demarcating work on the aforesaid plots then respondents started interfering and creating hurdles into it's work with the help of anti-social elements.
Unable to resist respondent's manuvours, appellant Samiti approached the District Magistrate, Kanpur Nagar on 21.5.86, u/s 14 of the Act to undo the civil wrong committed by respondents. District Magistrate instituted an inquiry into the matter and ultimately appellant's allegations against respondents were found to be correct and hence police of P.S. Nawabganj attached the property in question on 21.11.87 under the orders of ACM, Kanpur Nagar, from the actual physical possession of the appellant Samiti and Sri Jagdish Narayan, a govt. employee, was appointed Administrator over the property. Ganga Deen and Abujar Khan were the two witnesses of attachment. It seems that under the orders of ACM, Kanpur Nagar, attached property was ex parte released in favour of respondents vide orders dated 5.12.87/9.12.87 u/s 15 of the Act. Appellant Samiti, therefore challenged that order by moving to Ld. Special Judge, Gangster's Act u/s 16(2) of the Act, on 24.12.87. It was on this application that case no. 96 of 87 was registered before Special Judge, Gangster's Act u/s 16(2) of the Act. Special Judge, finding ex parte order illegal, same day, directed re-attachment of involved properties. In pursuance of the orders by the Ld. Special Judge, properties were reattached by Nawabganj Police on 26.12.87. Besides many grounds urged in the application filed before Ld. Special Judge, appellant Samiti also rued, through an affidavit dated 6.1.88, that even though it was the sole claimant over property mentioned in schedule "Da", but even then the same was not released to it. While directing re-attachment, Special Judge, had also called for comments from District Magistrate and the police, who both submitted their comments on 30.6.88 and 1.6.88 respectively.
What is noticeable at this stage is that at every step of proceedings, one or the other Party, approached this court in it's various jurisdictions and filed various proceedings and in some cases interim orders were passed and in one such case (writ Petition) an interim order of status quo on the spot was also passed. Fate of all these proceedings shall be dealt with later on in the subsequent part of this judgement.
Reverting back to the proceedings pending before learned Special Judge, Gangster's Act, he, vide it's order dated 10.9.90, decided claim of appellant Samiti for release of disputed properties in it's favour, by holding that respondents had committed offences under the Act by raising false and fictitious claims and institution of malicious and sham legal proceedings to grab the properties and therefore disputed properties are liable to be released in favour of appellant Samiti. It however refrained from making a final order in those terms because of a stay order of status quo passed by this court in one of the writ petition No. 2480 of 88 as is referred to herein above. Ld. Special Judge however directed that after decision of this court, final determination regarding possession of properties shall be made. Besides aforesaid order Special Judge further allowed application filed by Public Prosecutor and u/s 10 of the Act, took cognizance of the offence against the respondents and summoned them to stand trial fixing 3.10.90 for their appearance in court to defend charge under the Act.
Record further revealed that after adjudication of entitlement of possession by the Ld. Special Judge, dated 10.9.90, respondents did not refrain from their illegal activities and hence appellant Samiti filed a FIR against them on 31.12 90 u/s 3 of the Act, which proceeding was challenged in this court in a 482 Cr.M.Application.
All the case filed this court concerning disputed properties were ordered to be clubbed together by Hon'ble The Chief Justice and were allotted to a Division Bench for disposal. The Division Bench ordered on 13.9.97 that Criminal Misc. Application No. 1866 of 1995, Nand Lal Gupta versus State of U.P., shall be treated as the leading case. All the connected cases were decided by the Division Bench vide it's order dated 4.9.97 and it was pleased to quash criminal prosecution of the accused under the Act instituted by Shaila Nath Srivastava by observing that the dispute relates to the estate belonging to Late Lala Gurdeen, regarding which many litigations were pending on the civil side and hence respondents had not earned the properties by gangasterism and hence they cannot be treated as gangsters and criminal prosecution was instituted to circumvent civil proceedings and no offence under the Act is made out against accused, who are respondents in this appeal. Division Bench however did not pass any order regarding possession of properties and entitlement thereof.
Since in order dated 10.9.90 Learned Special Judge had kept the matter of possession alive to be finally ordered after decision by this court, hence Ld. Special Judge took up that issue and passed the impugned order on 19.5.2003 and released the disputed properties to the respondents, which order is under challenge in this appeal.
On the aforesaid preceding input facts, I have heard Sri R.K.Saksena, learned counsel for the appellant, Sri Niraj Tiwari, counsel for all the contesting respondents no. 2 to 18 and learned AGA for respondent State. At this juncture it is pointed out that interregnum, three respondents Jayant Kumar (Respondent No. 18), Sant Kumari (respondent no.15) and Ram Krishna Verma (respondent no.9) expired and proceeding of this appeal in their respect were abated, but their heirs were brought on record.
A priory, a preliminary objection was raised by the respondents counsel regarding maintainability of this appeal in this court, which issued was decided as preliminary issue and it was held that appeal is maintainable as section 372 of the Code (Cr.P.C.) read with section 18 of the Act read jointly preserves all the appeals provided for under the Code. It was noted that the Act is not a self-contained Code and for trial procedure it falls back on the provisions of the Code. It was further noted that since chapter XXIX of the code applies mutatis mutandis to appeals under the Act, hence in view of section 372 of the Code appeal against attachment or release of property shall be maintainable under the Act, just as appeal u/s 454 of the Code is maintainable. It was also noted that the appeal was entertained on 10.7.2003 and Act does not prohibit entertaining appeal against attachment u/s 18.
After deciding preliminary objection, appeal was heard on merits.
Snipping and castigating impugned judgement it was submitted by appellant's counsel that the impugned order is indefensible and cannot be sustained for too many reasons. First and foremost, it was submitted that same court, Special Judge Gangster's Act, on an earlier occasion, in it's final order dated 10.9.90, had held that the disputed properties belonged to the appellant society, which had purchased it through valid sale deeds and it's name had also been mutated in revenue records and revenue courts have also validated it's purchase and registration of name and hence society was entitled to the possession of disputed properties and respondents had no right or title over it and they were trying to grab it illegally and through illegal means. Aforesaid finding recorded by Ld. Special Judge, in earlier order dated 10.9.90, was never set aside nor upturned and hence had attained finality. In this respect incumbent Ld. Special Judge, while passing the impugned order, committed error on the face of the record when it observed that the said order was challenged in Writ Petition No. 6096 of 88, but it failed to take note of the fact that said writ petition was dismissed in default and it was never restored and hence order dated 10.9.90 was revived and was in operation, on the date when the impugned order was passed and consequently observations to the contrary in the impugned order is against the factual matrix of the case and cannot be concurred. Secondly it was urged that while passing the impugned order Special Judge did not advert to the question of entitlement of possession on the merits of evidences adduced before it and without considering that question it ordered that the properties be handed over to the respondents, which order is illegal. Once the respondents were adjudged not to be gangsters, first portion of section 17 does not apply and under the second portion the matter was not even considered by the lower court as to entitlement of possession and hence impugned order cannot be countenanced. It was further submitted that in the impugned order Ld. Special Judge had taken a contradictory opinion than that of his predecessor in office and hence it was incumbent upon it to meet the reasoning recorded by said predecessor, which Ld. Special Judge eschewed conveniently and hence it's opinion suffers from the vice of non-application of mind making impugned order indefensible and unsustainable. In fact, now two diametrically opposite opinions exist on record of the appeal regarding entitlement to possession and hence property could not have been released in favour of respondents. It was also submitted that on the earlier occasion, while passing order dated 10.9.90, Learned predecessor Special Judge had taken note of various revenue court proceedings and orders, which the Learned successor Special Judge completely ignored while passing impugned order. Next it was argued that the appellant Samiti had purchased disputed properties from it's registered owners through valid registered sale deeds and the same had not yet been declared to be a nullity and hence appellant Samiti possessed a valid title over the properties. It was further submitted that enough convincing and uncontroverted sufficient clinching proofs were filed by the appellant establishing that at the time of attachment disputed properties were in actual physical possession of the appellant society and hence Ld. Special Judge was under the mandate of law, u/s 17 of the Act, to return it to the society, when proceedings under the Act were quashed by this court. Section 17 postulates only such an eventuality submitted learned counsel. It was further submitted that the division bench, while quashing the FIR under the Act did not direct quashing of the order dated 10.9.90 and it only quashed criminal prosecution of the respondents under the Act and hence opinion in the impugned judgement that quashing of criminal proceedings against the respondent will entitle them to possession of disputed properties is wholly illegal and against the provisions of section 17 of the Act. Entitlement to possession, under the Act, is different from prosecution for criminal offence argued learned counsel.
Further castigation was for the ground that relevant and important material evidences, which had a direct bearing on the question of possession, were completely eschewed from consideration by Ld. Special Judge while passing the impugned order and hence impugned order is indefensible and prone to criticism and therefore has to be set aside. Elaborating the contention, it was argued that documents such as memo of attachment, application by appointed Administrator Jagdish Narayan and attachment witnesses Ganga Deen and Abujar Khan along with their affidavits testifying that the properties were attached from the actual physical possession of appellant Samiti, various sale deeds and mutation orders passed by competent revenue courts at various stages of the proceedings, police report dated 20.10.97, etc. all were kept out of consideration, albeit these documentary evidences were relevant and germane to consider question of possession. It was further submitted that all these documents unerringly proved that appellant's possession over the properties in question was actual and real and consequently impugned order, for non-consideration of above to referred relevant documentary evidences, is liable to be interfered with and scored out.
It was next submitted that Ld. Special Judge failed to distinguish between two separate proceedings and fell in error of joining of two separate cases, one u/s 16(2) of the Act and other u/s 3. Former was not a crime punishable under the Act whereas later was a punishable crime. In fact pending consideration of the application u/s 16(2) of the Act for release of properties, that FIR was lodged against the respondents for committing crime. Subject matter of FIR was entirely different from that of proceedings u/s 16 initiated by the appellant for possession over disputed properties and hence impugned order has been passed on wrong understanding of nature of proceeding and marshalling of facts and hence it is vulnerable and cannot be affirmed. Attour, this court in it's Division bench order dated 4.9.97 nowhere observed that respondents were entitled to possession over properties and hence handing over properties to the respondents on the basis of Division Bench judgement, through impugned order, is wholly illegal argued learned counsel. It was further submitted that respondents had purchased a non- executed time barred decree from unauthorised sellers and therefore they had got no right or title over the properties, which are subject matter of proceedings. During revenue proceedings mutation of their names were struck off. It was further submitted that finding that "So question of attachment of property under the provisions of U.P.Gangster's Act from possession of Samiti becomes unbelievable" is contrary to the documentary evidences produced by appellant Samiti and not denied by respondent State, which had carried out the attachment, and hence impugned order suffers from the vice of misreading of evidences.
It was also argued that since order dated 10.9.90 was not set aside by this court hence observations that it was not a final order is also unsustainable. Findings recorded in appellant's favour by the said earlier order had a binding effect and Ld. Special Judge, successor in office, could not have taken a contrary view argued learned counsel.
It was also submitted that observations by the Division Bench against the character of President of appellant society was wholly unwarranted as neither any opportunity was afforded to him nor there was any occasion to make those observations nor there was any prima facie material existing on record warranting such observations. Being a President of the society it was duty of Shaila Nath Srivastava to protect society's interest and hence his character could not have been castigated.
Learned appellant counsel also contended that although in respect of property mention in schedule "Da" no other claimant appeared before the Learned Special Judge, except the appellant society, yet that property was also not released in society's favour and hence impugned order cannot be sustained.
Primarily on above to referred submissions, it was prayed that appeal be allowed, and impugned order be set aside and properties be released in favour of appellant society u/s 17 of the Act.
Conversely respondents counsel argued that disputed properties were purchased by Nand Lal Gupta from decree holder Sukhbaksh Singh through a valid registered sale deed on 2.4.70. Sukhbaksh Singh had got decree of O.S.No. 25 of 1935 executed. Samiti had instituted a case u/s 145 of the Code but the same was dismissed. Name of Nand Lal Gupta was recorded in revenue record on 18.10.73. Against mutation of names in favour of Samiti , litigation is still pending. Case of other respondents is that they had also purchased it from Giriraj Kishore, Lakshami Narayan and Raj Veer Singh through various sale deeds dated 15.6.70, 26.10.70, 5.11.71. They also pleaded that through various civil and revenue court proceedings they had got orders in their favour and hence appellant's claim is bogus and sham and appeal lacks merits and be dismissed. They further contended that properties were attached from their possession and it was rightly released in their favour. It was also submitted that earlier order dated 10.9.90 was not a final order and hence impugned order does not suffer from any error and should be upheld. They therefore prayed that the appeal be dismissed and impugned order be affirmed.
I have considered rival submissions and have vetted through various evidences filed by both the sides through various affidavits, supplementary affidavits, counter affidavits and rejoinder affidavits, and raised arguments.
Before adverting to the merits of the case, it is essential to peep through and have glimpse of the relevant provisions under the Act so as to decipher legislative intended scope and ambit of relevant sections and what are the rights vested in the parties to the litigation under the Act and powers of the Court.
Section 14 to 18 of the Act ordains that proceedings under the Act has been bifurcated into two. One, in the nature of a civil wrong and the other regarding punishment of the crime. It is so evident from Section 14 of the Act itself. It provides that the District Magistrate, if he has reason to believe that any property whether movable or immovable has been acquired by a gangster as a result of commission of offence under Act, "he may order attachment of such property whether or not cognizance of such offence has been taken by any Court" (emphasis supplied). Thus, Section 14 postulates that whether cognizance of crime under the Act is taken or not property acquired by commission of an offence under the Act can be attached? Thus clearly it is perceptible that Section 14 creates a distinction between proceedings of attachment of property and crime trial under the Act. Section 17 further countenanced such an enunciated legal position as it provides that if on an inquiry court finds that any property has not been acquired by a gangster through commission of offences under the Act then that property has to be released to the person "from whose possession it was attached "or in any other case the court may make such order for disposal of property by delivering it "to the person entitled to the possession thereof "or it's disposal by attachment, confiscation etc. Thus, under Section 17 statute confer power on the Court to deliver property, to a person from whose possession it has been attached or the Court can hand it over to the person "entitled to possession thereof". Thus, the inquiry, contemplated under section 16 of the Act has to be a meaningful inquiry for determining firstly, whether any property has been acquired by a gangster by commission of offence under the Act or not and secondly, as to from whose possession property has been attached or who is entitled to it's possession, in case Act does not apply. Thus, there are two separate phases of inquiries to be conducted under section 16 of the Act. Although, those inquiries are woven inseparably and second one immediately succeeds the first but, the net result of both the inquiries are somewhat different. First part relates to acquisition of property whereas later one relates to it's release. Thus, Section 14 to 17 of the Act contemplates an inquiry, which is primarily civil in the nature and has nothing to do with trial of offences and punishment. This inquiry certainly is different from prosecution of an accused for a crime committed under the Act. Special Judge Gangster Act while passing the impugned order committed ex facie error by clubbing both types of proceedings into one and deciding the claim of respondents in their favour. It completely lost sight of Section 14, 16 and 17 of the Act and totally misdirected himself on above aspect. It failed to bifurcate criminal trial for an offence under the Gangster Act and an inquiry, as is contemplated under Sections 14, 16 and 17 of the Act regarding acquiring and disposal of property. Learned Special Judge failed to make aforementioned legal distinction and to note the fact that inquiry under section 16 of the Act is in the nature of a quasi-civil proceeding. The facts of the present appeal unerringly indicate that when respondents started interfering with the peaceful possession, then appellant society moved an application before the District Magistrate under section 14 of the Act and under the orders passed by A.C.M., that the properties were attached but subsequently it were released ex-parte in favour of respondents by the A.C.M. Aggrieved by the ex-parte release of the properties that the appellant had moved to the Special Judge Gangster Act under Section 16 (2) of the Act. On the said application field by appellant society that Case No. 86 of 87, which has germinated the present appeal, was registered before Special Judge Gangster Act. Thus, the application under Section 16(2) filed by appellant society was to undo the civil wrong committed against the appellant society by respondents. Through that application, appellant society never prayed for prosecution of the respondents for committing offence under section 3 of the Act. It only desired that the property, of which it was entitled to possession be attached and be released in it's favour. Thus, appellant society, had invoked the jurisdiction of learned Special Judge, Gangster's Act to rectify the civil wrong.
It is further noted that pending consideration of application under section 16(2) of the Act that an FIR was lodged as an ancillary proceeding as the respondents continued to interfere with the properties in question. Hence, proceedings of FIR under section 3 of the Act was entirely separated and related with altogether different facets of criminal trial. Learned Special Judge further committed a mistake in judging that under section 16(4) it has to acted as a quasi-civil court and it possessed Civil Courts power as is provided under sub section 16 (4) of the Act and hence findings recorded by it's predecessors were findings recorded by a quasi-Civil Court.
Learned Special Judge further ignored the fact that section 17 of the Act contemplates two types of releases and is bifurcated into two parts. In the first part, if the Court finds that the property was not acquired by a Gangster, as a result of commission of offence under the Act, the property has to be released to the person from whose possession it was attached, but the second part requires that in other cases, the Court may makes such order for disposal of property by attachment, confiscation or delivery of property to the person "entitled to the possession thereof" or otherwise. Thus, power of the Court under section 17 of the Act is wide enough to imbibe it for disposal of the property in any manner, as it likes which is just and legal. Learned Special Judge, therefore, committed an error of law in joining FIR lodged by the President of the appellant society with that of it's right to possession under section 16 read with section 17 of the Act.
Further, it is evident from the impugned order that Ld. Special Judge did not addressed himself to the question of possession on the date of attachment to determine from whose possession, property was attached. Impugned judgement is completely silent on the said aspect of the matter and hence is contrary to section 17 of the Act. Respondents have also not produced any documentary evidence in that respect for establishing their claim of possession over properties in dispute. They further failed to bring forth any convincing evidence to establish their entitlement to possession. What is interesting to note is that some of the respondents (respondents no. 15,16 and 17) have pleaded that there was no civil dispute between them and appellant society and hence it was all the more incumbent upon Ld. Special Judge to determine entitlement of possession. In this connection, it is also pointed out that by mere raising of some constructions will not entitle a person to get possession over the property unless it is established that he was in lawful possession. Entitlement of possession under law means lawful possession and not illegal possession. View adopted by Ld. Special Judge therefore seems to be faulty and unsustainable.
Moreover, pleadings made by both the sides and cases put forth by them indicate that some of the facts inter se were not in dispute. Firstly, it was not disputed that the properties in question related with Plot No. 71 to 76 of Mohal of Prago Kunwar and Plot No. 61 to 68 of Mohal of Dargahi Lal and Plot No. 61 and 215 of Mohal of Hazaro Kunwar. It was also not disputed that an application in respect of the said property was filed by appellant society before the District Magistrate on 21.5.86 under section 14 of the Act raising grievance against the illegal activities of respondents and praying therein that the properties in dispute be attached and be released in favour of appellant society. It is also not in dispute that on the application filed by the appellant society, District Magistrate ordered an inquiry and in that inquiry, claim of appellant society was found to be correct and, therefore, A.C.M., Kanpur Nagar directed for attachment of the properties, which, in fact were attached on 21.11.87. It is also not in dispute that the said attached properties were released by Ex-party order on 9.12.87 by A.C.M., Kanpur Nagar in favour of respondents against which appellant society went up before Special Judge, Gangster's Act under section 16(2) of the Act on 24.12.87. It is also not in dispute that under the orders passed by Learned Special Judge, properties were reattached on 26.12.87. It is also not in dispute that after initial attachment, an Administrator Jagdish Narain was appointed over the disputed properties under section 14 of the Act and Ganga Deen and Abujar Khan were the witnesses of said attachment. Respondents have also not disputed application and affidavits filed by the Administrator as well as witnesses of attachment that when the properties were actually attached, it was from the actual physical possession of the appellant society. In this respect, the police report also supported appellant's claim as it mentioned that at the time of attachment, only the President of the appellant society was present at the spot and none of the respondents were present, which fact was also inked in the attachment memo prepared by the police. It is also not in dispute that the name of the appellant society was mutated over the disputed properties and they were also recorded as owners in Khewat (register of ownership). Both the parties were also not at discord that the disputed properties originally belong to Lala Gurdeen and in respect of these properties, the decree was passed in 1943. What has also not been disputed is the fact that on 2.4.70, respondent Nand Lal got his name muted over the disputed property. Thus, it is admitted to both the sides that after more than three decades, the decree passed in the Civil suit in 1943 was got executed.
The disputed facts were that according to the appellants claim, it was time barred execution under which, respondents had got no right or title and they, with an idea to grab the entire properties in question and to divest the appellant Samiti of it's lawful possession and claim indulged in illegal design. From the pleadings of appellant, it is clear that the appellants society had claimed the properties as a registered purchaser whose name were also recorded in the register of ownership and mutations were also carried out in it's name. This aspect of the matter has been completely ignored by the Learned Special Judge which passing impugned order as, Learned Special Judge has not at all considered what will be the effect of various orders passed in mutation proceedings by revenue courts and effect of various registered sale deeds in favour of the society as well as registered sale deeds alleged to have been executed in favour of respondents. These sale deeds and orders in mutation cases have been filed by appellant society through a supplementary affidavit filed on 8.10.2007.
The records further reveals that this Court in it's order dated 4.9.1907 had not at all touched the question on entitlement of possession and it only quashed the FIR which was lodged by the president of appellant society against the respondents under section 3 of the Act. The entire order of this Court does not at all considered the question of possession which was never raised before this Court. It is also admitted that on the earlier occasion, vide order dated 10.9.1990, question of possession was considered by the Learned Special Judge, Gangsters Act and it had held that appellant society is entitled to the possession of the disputed properties and respondent were trying to illegally grab it by indulging into illegal activities and filing of sham and vexatious litigations. Learned Special Judge Gangsters Act while passing the impugned order contrary to such findings did not at all meted out the reasons recorded in the order dated 10.9.1990 and completely ignored it. It observed that the said order was not a final order but it forget to look into the fact that the findings in favour of the appellant society was recorded there under and the same was under section 17 of the Act which was appealable under section 18 and no such appeal was filed against it. Learned Special Judge mentioned that the said order was not a final order and was challenged in this High Court but it committed apparent error on the face of the record, as in the order dated 10.9.1990, predecessor Special Judge has observed that the said order (10.9.1990) will be subjected to any order passed by the High Court but, since the High Court did not set aside that order, there was no occasion for the successor in offence to take a contrary opinion and record diametrically divergent findings without meeting the reasoning of the earlier order.
It is also noted that quashing of FIR by this Court had no adverse effect on the claim of entitlement of possession over the properties in question by the appellant society as, the proceeding under section 16 (2) was initiated much earlier than the FIR and it was only during pendency of that proceeding that FIR was lodged to curb the illegal activities of respondent and hence, quashing of FIR could not have affected the claim of appellant society regarding their entitlement to possession under section 16 (2) of the Act.
Learned Special Judge also committed glaring error on the face of the record in not looking into the reasoning, various judicial orders passed by revenue Courts in mutation proceedings and thereby completely eschewed from consideration relevant and germane evidences in favour of appellant Samiti, which conclusively had clinched the case in favour of appellant. Learned Special Judge also ignored the fact that the decree was never executed and it was time barred decree under which no right accrued to the respondents. It recorded a perverse finding against the merits of the evidence on record on the question of possession. The affidavit by the administrator and the witnesses of attachments, who all were totally independent witnesses and had no axe to grind against any of the parties were ignored albeit it was averred that at the time of attachment properties in dispute were in actual physical possession of the appellant society. Thus, the findings recorded in the impugned judgment are contrary to the undisputed uncontroverted documentary evidences produced by the appellant society and hence, impugned order is susceptible to criticism.
Learned Special judge further ignored the fact that appellant society's name was entered into Khewat (registered of ownership) and no challenge was made by the respondents in any revenue Court and therefore, it committed error on the face of the record to hold otherwise. It also ignored that principle of res judicata applies on the facts of the appeal. Appellant's counsel in this respect relied upon Apex Court judgment reported in Mohan Lal Vs. Kartar Singh and others 1995 SC 573.
In Kalpu and another versus Sanaurar Khan and another : AIR 1982 Allahabad 307 it has been observed by this court as under :-
"5. The applicability of the rule of res judicata prescribed by S.11. of the Civil P.C. does not depend upon the correctness or the incorrectness of the former decision. whether right or wrong, the former decision is binding between the parties. The subsequent deletion of Rule 26-A and the view of this Court that the rule was ultra vires could not have the effect of wiping out the earlier decision that the trees had been nurtured by the plaintiffs and belonged to them as they stood on Banjar land."
Learned Special Judge also ignored the fact that the challenge to the order dated 10.9.1990 was made in writ petition but that writ petition was dismissed in default and no order was passed by this Court setting aside the said order.
In respect of effect of the order passed by Division Bench of this court dated 4.9.1997, appellant's counsel relied upon Apex Court decision in State of Orissa Vs. Sudhar Shekhar Mishra: AIR 1968 S C 647 wherein it has been held Apex Court as under:-
"A decision is only an authority for what it actually decides. What is of the essence is a decision in its ratio and not every observation found therein nor of the logically follows from the various observations made in it. It is not a profitable task to extract a sentence here and there from a judgment and built upon it."
In State of M.P. versus Ramesh Chandra Bajpai: (2009)13 SCC 635 it has been held as under:-
"26. In our view, the aforementioned decision has been misapplied and miscontrued by the High Court. It is now well-settled principle of law that a decision is an authority for what it decides and not what can logically be deduced therefrom."
In Bombay Dyeing and Mfg.Co.Ltd. v. Bombay Environmental Action Group and Ors:AIR 2006 SC 1489 it has been held as under:-
"312. So far as order of this Court dated 11.5.2005 is concerned, again the validity or otherwise of the BIFR Scheme and / or implementation thereof was not in question. An order of this Court, in which the same was passed. For the said purpose, the orders of this Court were required to be read in their entirety. A judgment, it is well-settled cannot be read as a statute. (See Sarat Chandra Mishra Vs. State of Orissa and State of Karnataka Vs. C. Lalitha.) Construction of a judgment, it is well-settled should made in the light of the factual matrix involved therein. What is more important is to see the issues involved therein and the context wherein the observations were made. Any observation made in a judgment, it is trite, should not be read in isolation and out of context."
Further it is noted that the learned special Judge while passing the impugned order fell in error and appendaged two different proceedings one having a civil textures, and other regarding a criminal offence. The proceedings under section 16(2) of the act was entirely different from the FIR lodged subsequently and related with crime no. 266 of 1990, under section 3 of the Act. Thus, the entire approach adopted by the learned Special Judge in passing the impugned order was faulty and hence cannot be countenanced.
The opinion by the Special Judge that vide order dated 4.9.1997, this Court had set aside the order dated 10.9.1990, passed by Special Judge Gangsters Act is also wrong and against the merits of evidence on record. Property was attached under the orders passed by the Special Judge Gangster's Act prior to registration of FIR and therefore, quashing of FIR or criminal proceeding would not have invalidated earlier findings recorded on 10.9.90.
It also ignored the police report dated 20.9.1997, wherein it was specifically mentioned that at the time of attachment, properties in question were in actual physical possession of appellant society and it was from their physical possession that the same was attached. In support of the submissions that no findings can be recorded on conjectures and surmises against the merits of evidence on record, appellant's counsel relied upon the Apex Court decision in State of U.P. Vs. Pheru Singh etc. AIR 1989 SC 1205 wherein it has been held as under:-
"It is well-settled principle of law in criminal jurisprudence that no finding can be rendered either on mere surmise or conjecture and every finding should be based on satisfactory and acceptable evidence."
Special Judge, so far as properties mentioned under scheduled "Da" is concerned, itself recorded a finding that the respondents therein had illegally grabbed the property of plot no. 78 and they have not filed any affidavit to contest the claim of the appellants Samiti and therefore, it committed illegality in not releasing said property to the appellant society.
Since I find that the impugned order is against the merits of evidences on record and has been passed without application of mind ignoring documentary evidences and on a wrong premise altogether, that I am of the opinion that the said order cannot be sustained and is liable to be interfered with and rectified.
In view of above, appeal is allowed. Impugned order dated 19.5.2003 passed by Special Judge (Gangster), Kanpur Nagar in Case No.96 of 1987, Kailash Sahkari Avas Samiti versus Nand Lal and others under Section 16/17 U.P. Gangster and Anti-Social Activities (Prevention) Act is hereby by set aside and all the properties involved in the case and attached on 16.12.87 under the orders of Special Judge, Gangster's Act is directed to be released in favour of appellant society.
Appeal is allowed.
Dt.22.5.2012
RK/AKG/Tamang
Reserved
AFR
CRIMINAL APPEAL NO. 3000 OF 2003
Kailash Sahkari Avas Samiti Limited, Kanpur Nagar, through it's President Shaila Nath Srivastava.............................................................Appellant
Versus
State of U.P. and others...................................................Respondents.
Hon'ble Vinod Prasad J
In the most chequered background facts germinating this appeal, the pivotal of mooted question to be adjudicated peripheries in a rather narrow compass as to the scope and interpretation of section 17 of U.P. Gangster's and Anti-Social Activities (Prevention) Act (Act VII of 1986), hereinafter referred to as the Act, and entitlement to possession there under, on the peculiar facts and circumstances of this appeal.
Appellant Kailash Sahkari Avas Samiti, hereinafter referred to as Samiti (Society), through it's President Shaila Nath Srivastava, has preferred this appeal, challenging impugned judgement and order dated 19.5.2003, passed by Special Judge, Gangster's Act, Kanpur Nagar, in case no. 96 of 1987, Kailash Sahkari Avas Samiti versus Nand Lal and others, u/s 16/17 of the Act, P.S. Nawab Ganj, district Kanpur Nagar, by which impugned order Special Judge, Gangster's Act, has ordered that various involved landed case properties, be released in favour of respondents no. 2 to 18, u/s 17 of the Act, subject to the litigation pending in the competent court, and at the same time directing appellant Samiti and contesting private respondents to get their rights and title adjudicated and determined in the competent civil and revenue courts.
Narrated concisely, a glimpse of background facts indicate that the property involved in the case, which is subject matter of dispute, was originally owned by one Lala Gurdeen who was zamindar of village Jewra Nawabganj, district Kanpur Nagar. Lala Gurdeen had married twice. From his pre-deceased wife he had a daughter Hazaro Kunwar, who had two sons Maharaj Bahadur and Vijai Bahadur. From his second wife namely Amrit Kunwar, Lala Gurdeen had two daughters Mewa Kunwar, and Prago Kunwar. Mewa Kunwar was survived by his son Ram Dayal and grandson Madho Dayal. Lala Gurdeen expired on 10.12.1861. After demise of Lala Gurdeen, his widow second wife and his three surviving daughters had alienated certain properties, albeit they were limited owners. Smt. Amrit Kunwar died on 1.8.1880. After their demise, the three daughters inherited their real estate as limited owners without any alienation/transferable rights. Smt. Prago Kunwar lost breath on 8.7 1907, Hazaro Kunwar died on 24.1.1914, and Mewa Kunwar expired on 14.6.1923.. For succession of properties between sons of Hazaro Kunwar and Mewa Kunwar, namely Maharaj Bahadur, Vijai Bahadur, and Ram Dayal, two original suits were filed and litigation ensued in between them. First suit O.S.No. 25 of 1935, was filed by Maharaj Bahadur and Vijai Bahadur as plaintiffs claiming 2/3 share in the estate and second O.S. No. 34 of 1935 was instituted by Madho Dayal s/o Ram Dayal and grandson of Mewa Kunwar, claiming 1/3 share in the property. Trial court partly decreed both the suits on 4.10.43 as it held that most of the alienations made by the limited owners were illegal. For the reliefs, in respect of which both the suits were dismissed, two FAs were filed against trial court's judgement and decree in this court being FA Nos. 239 of 1945, and 171 of 1946. Both the FAs were judgmented by this court 14.5.63 and this court also concurred that most of the alienations made by the limited owners were illegal. However, it remanded the case back to the trial court to consider certain alienations made in favour of various persons, which also included alienation made in favour of Brahmavart Sanatan Dharm Mahamandal defendant no. 8 in the suit and also in respect of defendants no. 9 to 22 thereof. Order passed in above FAs, dated 14.5.63, was challenged by defendant no. 8 and 9 to 22 in the Hon'ble Supreme Court in civil appeals no. 636 to 639 of 1971. The apex court upheld certain part of trial court judgement and set aside remand order passed by this court.
Case of appellant Samiti is that it is a registered housing society and it allots plots to it's members on no profit no loss basis. Through various registered sale deeds of different dates it had purchased lands, which earlier consisted of erstwhile estate of Lala Gurdeen, from it's lawful owners. Details of various purchases are mentioned in separate Supplementary affidavit dated 8.10.2007, filed by the appellant. The disputed properties were mentioned in schedule Aa, Ba, Sa,Da,Ya,Ra and La. All these lands were non ZA, non - agricultural lands and were recorded as Usar, Banjar etc.
Schedule "Aa" was concerned with plot no. 71 to 76 of Mohal Parago Kunwar. Through registered sale deeds from it's registered owners mentioned in Khawat (Register of ownership) appellant Samiti had purchased said plots and, through Revenue case no. 267 of 1985, decided on 24.9.85, appellant Samiti had got it's name mutated over said plots as owners and since then it continued to be in possession.
Schedule "Ba" related to plot no. 61 of Mohal of Dargahi Lal, which too was purchased by appellant Samiti through registered sale deed from it's registered owners and, through revenue case no. 270 of 1985, decided on 24.9.85, appellant Samiti had got it's name mutated over said plots as owners and since then it continued to be in possession.
Schedule "Sa" related to plot Nos.61 (part) and 68 of Mohal of Dargahi Lal which too was purchased by appellant Samiti through registered sale deed from it's registered owners and, through revenue case no. 269 of 1985, decided on 24.9.85, appellant Samiti had got it's name mutated over said plots as owners and since then it continued to be in possession.
Schedule "Da" related with plot no. 78 of Mohal of Dargahi Lal which too was purchased by appellant Samiti through registered sale deed from it's registered owners and, through revenue case no. 2, decided on 30.1.87, appellant Samiti had got it's name mutated over said plots as owners and since then it continued to be in possession.
Schedule "Ya" related with plot no. 61 (Part) of Mohal of Hazaro Kunwar which too was purchased by appellant Samiti through registered sale deed from it's registered owners and, through revenue case no. 3, decided on 30.1.87, appellant Samiti had got it's name mutated over said plots as owners and since then it continued to be in possession.
Schedule "Ra" related with plot no. 217 Mohal of Hazaro Kunwar which too was purchased by appellant Samiti through registered sale deed from it's registered owners and, through revenue case no. 266 of 1985, decided on 24.9.85, appellant Samiti had got it's name mutated over said plots as owners and since then it continued to be in possession.
Schedule "La" related with plot no. 421 of Mohal of Shitala Prasad, Parago Kunwar, Mewa Kunwar and Dargahi Lal which too was purchased by appellant Samiti through registered sale deed from it's registered owners and, through revenue cases no. 264 of 1985,265 of 85, 268 of 85, 270 of 85, decided on 24.9.85, appellant Samiti had got it's name mutated over said plots as owners and since then it continued to be in possession.
On the basis of aforementioned revenue court proceedings name of appellant Samiti was also entered in Khewat( register of ownership).
Further case of appellant Samiti is that respondents are antisocial elements and they indulge in land grabbing. After purchase and mutation of it's name as owners in the revenue records, when the appellant Samiti started levelling and demarcating work on the aforesaid plots then respondents started interfering and creating hurdles into it's work with the help of anti-social elements.
Unable to resist respondent's manuvours, appellant Samiti approached the District Magistrate, Kanpur Nagar on 21.5.86, u/s 14 of the Act to undo the civil wrong committed by respondents. District Magistrate instituted an inquiry into the matter and ultimately appellant's allegations against respondents were found to be correct and hence police of P.S. Nawabganj attached the property in question on 21.11.87 under the orders of ACM, Kanpur Nagar, from the actual physical possession of the appellant Samiti and Sri Jagdish Narayan, a govt. employee, was appointed Administrator over the property. Ganga Deen and Abujar Khan were the two witnesses of attachment. It seems that under the orders of ACM, Kanpur Nagar, attached property was ex parte released in favour of respondents vide orders dated 5.12.87/9.12.87 u/s 15 of the Act. Appellant Samiti, therefore challenged that order by moving to Ld. Special Judge, Gangster's Act u/s 16(2) of the Act, on 24.12.87. It was on this application that case no. 96 of 87 was registered before Special Judge, Gangster's Act u/s 16(2) of the Act. Special Judge, finding ex parte order illegal, same day, directed re-attachment of involved properties. In pursuance of the orders by the Ld. Special Judge, properties were reattached by Nawabganj Police on 26.12.87. Besides many grounds urged in the application filed before Ld. Special Judge, appellant Samiti also rued, through an affidavit dated 6.1.88, that even though it was the sole claimant over property mentioned in schedule "Da", but even then the same was not released to it. While directing re-attachment, Special Judge, had also called for comments from District Magistrate and the police, who both submitted their comments on 30.6.88 and 1.6.88 respectively.
What is noticeable at this stage is that at every step of proceedings, one or the other Party, approached this court in it's various jurisdictions and filed various proceedings and in some cases interim orders were passed and in one such case (writ Petition) an interim order of status quo on the spot was also passed. Fate of all these proceedings shall be dealt with later on in the subsequent part of this judgement.
Reverting back to the proceedings pending before learned Special Judge, Gangster's Act, he, vide it's order dated 10.9.90, decided claim of appellant Samiti for release of disputed properties in it's favour, by holding that respondents had committed offences under the Act by raising false and fictitious claims and institution of malicious and sham legal proceedings to grab the properties and therefore disputed properties are liable to be released in favour of appellant Samiti. It however refrained from making a final order in those terms because of a stay order of status quo passed by this court in one of the writ petition No. 2480 of 88 as is referred to herein above. Ld. Special Judge however directed that after decision of this court, final determination regarding possession of properties shall be made. Besides aforesaid order Special Judge further allowed application filed by Public Prosecutor and u/s 10 of the Act, took cognizance of the offence against the respondents and summoned them to stand trial fixing 3.10.90 for their appearance in court to defend charge under the Act.
Record further revealed that after adjudication of entitlement of possession by the Ld. Special Judge, dated 10.9.90, respondents did not refrain from their illegal activities and hence appellant Samiti filed a FIR against them on 31.12 90 u/s 3 of the Act, which proceeding was challenged in this court in a 482 Cr.M.Application.
All the case filed this court concerning disputed properties were ordered to be clubbed together by Hon'ble The Chief Justice and were allotted to a Division Bench for disposal. The Division Bench ordered on 13.9.97 that Criminal Misc. Application No. 1866 of 1995, Nand Lal Gupta versus State of U.P., shall be treated as the leading case. All the connected cases were decided by the Division Bench vide it's order dated 4.9.97 and it was pleased to quash criminal prosecution of the accused under the Act instituted by Shaila Nath Srivastava by observing that the dispute relates to the estate belonging to Late Lala Gurdeen, regarding which many litigations were pending on the civil side and hence respondents had not earned the properties by gangasterism and hence they cannot be treated as gangsters and criminal prosecution was instituted to circumvent civil proceedings and no offence under the Act is made out against accused, who are respondents in this appeal. Division Bench however did not pass any order regarding possession of properties and entitlement thereof.
Since in order dated 10.9.90 Learned Special Judge had kept the matter of possession alive to be finally ordered after decision by this court, hence Ld. Special Judge took up that issue and passed the impugned order on 19.5.2003 and released the disputed properties to the respondents, which order is under challenge in this appeal.
On the aforesaid preceding input facts, I have heard Sri R.K.Saksena, learned counsel for the appellant, Sri Niraj Tiwari, counsel for all the contesting respondents no. 2 to 18 and learned AGA for respondent State. At this juncture it is pointed out that interregnum, three respondents Jayant Kumar (Respondent No. 18), Sant Kumari (respondent no.15) and Ram Krishna Verma (respondent no.9) expired and proceeding of this appeal in their respect were abated, but their heirs were brought on record.
A priory, a preliminary objection was raised by the respondents counsel regarding maintainability of this appeal in this court, which issued was decided as preliminary issue and it was held that appeal is maintainable as section 372 of the Code (Cr.P.C.) read with section 18 of the Act read jointly preserves all the appeals provided for under the Code. It was noted that the Act is not a self-contained Code and for trial procedure it falls back on the provisions of the Code. It was further noted that since chapter XXIX of the code applies mutatis mutandis to appeals under the Act, hence in view of section 372 of the Code appeal against attachment or release of property shall be maintainable under the Act, just as appeal u/s 454 of the Code is maintainable. It was also noted that the appeal was entertained on 10.7.2003 and Act does not prohibit entertaining appeal against attachment u/s 18.
After deciding preliminary objection, appeal was heard on merits.
Snipping and castigating impugned judgement it was submitted by appellant's counsel that the impugned order is indefensible and cannot be sustained for too many reasons. First and foremost, it was submitted that same court, Special Judge Gangster's Act, on an earlier occasion, in it's final order dated 10.9.90, had held that the disputed properties belonged to the appellant society, which had purchased it through valid sale deeds and it's name had also been mutated in revenue records and revenue courts have also validated it's purchase and registration of name and hence society was entitled to the possession of disputed properties and respondents had no right or title over it and they were trying to grab it illegally and through illegal means. Aforesaid finding recorded by Ld. Special Judge, in earlier order dated 10.9.90, was never set aside nor upturned and hence had attained finality. In this respect incumbent Ld. Special Judge, while passing the impugned order, committed error on the face of the record when it observed that the said order was challenged in Writ Petition No. 6096 of 88, but it failed to take note of the fact that said writ petition was dismissed in default and it was never restored and hence order dated 10.9.90 was revived and was in operation, on the date when the impugned order was passed and consequently observations to the contrary in the impugned order is against the factual matrix of the case and cannot be concurred. Secondly it was urged that while passing the impugned order Special Judge did not advert to the question of entitlement of possession on the merits of evidences adduced before it and without considering that question it ordered that the properties be handed over to the respondents, which order is illegal. Once the respondents were adjudged not to be gangsters, first portion of section 17 does not apply and under the second portion the matter was not even considered by the lower court as to entitlement of possession and hence impugned order cannot be countenanced. It was further submitted that in the impugned order Ld. Special Judge had taken a contradictory opinion than that of his predecessor in office and hence it was incumbent upon it to meet the reasoning recorded by said predecessor, which Ld. Special Judge eschewed conveniently and hence it's opinion suffers from the vice of non-application of mind making impugned order indefensible and unsustainable. In fact, now two diametrically opposite opinions exist on record of the appeal regarding entitlement to possession and hence property could not have been released in favour of respondents. It was also submitted that on the earlier occasion, while passing order dated 10.9.90, Learned predecessor Special Judge had taken note of various revenue court proceedings and orders, which the Learned successor Special Judge completely ignored while passing impugned order. Next it was argued that the appellant Samiti had purchased disputed properties from it's registered owners through valid registered sale deeds and the same had not yet been declared to be a nullity and hence appellant Samiti possessed a valid title over the properties. It was further submitted that enough convincing and uncontroverted sufficient clinching proofs were filed by the appellant establishing that at the time of attachment disputed properties were in actual physical possession of the appellant society and hence Ld. Special Judge was under the mandate of law, u/s 17 of the Act, to return it to the society, when proceedings under the Act were quashed by this court. Section 17 postulates only such an eventuality submitted learned counsel. It was further submitted that the division bench, while quashing the FIR under the Act did not direct quashing of the order dated 10.9.90 and it only quashed criminal prosecution of the respondents under the Act and hence opinion in the impugned judgement that quashing of criminal proceedings against the respondent will entitle them to possession of disputed properties is wholly illegal and against the provisions of section 17 of the Act. Entitlement to possession, under the Act, is different from prosecution for criminal offence argued learned counsel.
Further castigation was for the ground that relevant and important material evidences, which had a direct bearing on the question of possession, were completely eschewed from consideration by Ld. Special Judge while passing the impugned order and hence impugned order is indefensible and prone to criticism and therefore has to be set aside. Elaborating the contention, it was argued that documents such as memo of attachment, application by appointed Administrator Jagdish Narayan and attachment witnesses Ganga Deen and Abujar Khan along with their affidavits testifying that the properties were attached from the actual physical possession of appellant Samiti, various sale deeds and mutation orders passed by competent revenue courts at various stages of the proceedings, police report dated 20.10.97, etc. all were kept out of consideration, albeit these documentary evidences were relevant and germane to consider question of possession. It was further submitted that all these documents unerringly proved that appellant's possession over the properties in question was actual and real and consequently impugned order, for non-consideration of above to referred relevant documentary evidences, is liable to be interfered with and scored out.
It was next submitted that Ld. Special Judge failed to distinguish between two separate proceedings and fell in error of joining of two separate cases, one u/s 16(2) of the Act and other u/s 3. Former was not a crime punishable under the Act whereas later was a punishable crime. In fact pending consideration of the application u/s 16(2) of the Act for release of properties, that FIR was lodged against the respondents for committing crime. Subject matter of FIR was entirely different from that of proceedings u/s 16 initiated by the appellant for possession over disputed properties and hence impugned order has been passed on wrong understanding of nature of proceeding and marshalling of facts and hence it is vulnerable and cannot be affirmed. Attour, this court in it's Division bench order dated 4.9.97 nowhere observed that respondents were entitled to possession over properties and hence handing over properties to the respondents on the basis of Division Bench judgement, through impugned order, is wholly illegal argued learned counsel. It was further submitted that respondents had purchased a non- executed time barred decree from unauthorised sellers and therefore they had got no right or title over the properties, which are subject matter of proceedings. During revenue proceedings mutation of their names were struck off. It was further submitted that finding that "So question of attachment of property under the provisions of U.P.Gangster's Act from possession of Samiti becomes unbelievable" is contrary to the documentary evidences produced by appellant Samiti and not denied by respondent State, which had carried out the attachment, and hence impugned order suffers from the vice of misreading of evidences.
It was also argued that since order dated 10.9.90 was not set aside by this court hence observations that it was not a final order is also unsustainable. Findings recorded in appellant's favour by the said earlier order had a binding effect and Ld. Special Judge, successor in office, could not have taken a contrary view argued learned counsel.
It was also submitted that observations by the Division Bench against the character of President of appellant society was wholly unwarranted as neither any opportunity was afforded to him nor there was any occasion to make those observations nor there was any prima facie material existing on record warranting such observations. Being a President of the society it was duty of Shaila Nath Srivastava to protect society's interest and hence his character could not have been castigated.
Learned appellant counsel also contended that although in respect of property mention in schedule "Da" no other claimant appeared before the Learned Special Judge, except the appellant society, yet that property was also not released in society's favour and hence impugned order cannot be sustained.
Primarily on above to referred submissions, it was prayed that appeal be allowed, and impugned order be set aside and properties be released in favour of appellant society u/s 17 of the Act.
Conversely respondents counsel argued that disputed properties were purchased by Nand Lal Gupta from decree holder Sukhbaksh Singh through a valid registered sale deed on 2.4.70. Sukhbaksh Singh had got decree of O.S.No. 25 of 1935 executed. Samiti had instituted a case u/s 145 of the Code but the same was dismissed. Name of Nand Lal Gupta was recorded in revenue record on 18.10.73. Against mutation of names in favour of Samiti , litigation is still pending. Case of other respondents is that they had also purchased it from Giriraj Kishore, Lakshami Narayan and Raj Veer Singh through various sale deeds dated 15.6.70, 26.10.70, 5.11.71. They also pleaded that through various civil and revenue court proceedings they had got orders in their favour and hence appellant's claim is bogus and sham and appeal lacks merits and be dismissed. They further contended that properties were attached from their possession and it was rightly released in their favour. It was also submitted that earlier order dated 10.9.90 was not a final order and hence impugned order does not suffer from any error and should be upheld. They therefore prayed that the appeal be dismissed and impugned order be affirmed.
I have considered rival submissions and have vetted through various evidences filed by both the sides through various affidavits, supplementary affidavits, counter affidavits and rejoinder affidavits, and raised arguments.
Before adverting to the merits of the case, it is essential to peep through and have glimpse of the relevant provisions under the Act so as to decipher legislative intended scope and ambit of relevant sections and what are the rights vested in the parties to the litigation under the Act and powers of the Court.
Section 14 to 18 of the Act ordains that proceedings under the Act has been bifurcated into two. One, in the nature of a civil wrong and the other regarding punishment of the crime. It is so evident from Section 14 of the Act itself. It provides that the District Magistrate, if he has reason to believe that any property whether movable or immovable has been acquired by a gangster as a result of commission of offence under Act, "he may order attachment of such property whether or not cognizance of such offence has been taken by any Court" (emphasis supplied). Thus, Section 14 postulates that whether cognizance of crime under the Act is taken or not property acquired by commission of an offence under the Act can be attached? Thus clearly it is perceptible that Section 14 creates a distinction between proceedings of attachment of property and crime trial under the Act. Section 17 further countenanced such an enunciated legal position as it provides that if on an inquiry court finds that any property has not been acquired by a gangster through commission of offences under the Act then that property has to be released to the person "from whose possession it was attached "or in any other case the court may make such order for disposal of property by delivering it "to the person entitled to the possession thereof "or it's disposal by attachment, confiscation etc. Thus, under Section 17 statute confer power on the Court to deliver property, to a person from whose possession it has been attached or the Court can hand it over to the person "entitled to possession thereof". Thus, the inquiry, contemplated under section 16 of the Act has to be a meaningful inquiry for determining firstly, whether any property has been acquired by a gangster by commission of offence under the Act or not and secondly, as to from whose possession property has been attached or who is entitled to it's possession, in case Act does not apply. Thus, there are two separate phases of inquiries to be conducted under section 16 of the Act. Although, those inquiries are woven inseparably and second one immediately succeeds the first but, the net result of both the inquiries are somewhat different. First part relates to acquisition of property whereas later one relates to it's release. Thus, Section 14 to 17 of the Act contemplates an inquiry, which is primarily civil in the nature and has nothing to do with trial of offences and punishment. This inquiry certainly is different from prosecution of an accused for a crime committed under the Act. Special Judge Gangster Act while passing the impugned order committed ex facie error by clubbing both types of proceedings into one and deciding the claim of respondents in their favour. It completely lost sight of Section 14, 16 and 17 of the Act and totally misdirected himself on above aspect. It failed to bifurcate criminal trial for an offence under the Gangster Act and an inquiry, as is contemplated under Sections 14, 16 and 17 of the Act regarding acquiring and disposal of property. Learned Special Judge failed to make aforementioned legal distinction and to note the fact that inquiry under section 16 of the Act is in the nature of a quasi-civil proceeding. The facts of the present appeal unerringly indicate that when respondents started interfering with the peaceful possession, then appellant society moved an application before the District Magistrate under section 14 of the Act and under the orders passed by A.C.M., that the properties were attached but subsequently it were released ex-parte in favour of respondents by the A.C.M. Aggrieved by the ex-parte release of the properties that the appellant had moved to the Special Judge Gangster Act under Section 16 (2) of the Act. On the said application field by appellant society that Case No. 86 of 87, which has germinated the present appeal, was registered before Special Judge Gangster Act. Thus, the application under Section 16(2) filed by appellant society was to undo the civil wrong committed against the appellant society by respondents. Through that application, appellant society never prayed for prosecution of the respondents for committing offence under section 3 of the Act. It only desired that the property, of which it was entitled to possession be attached and be released in it's favour. Thus, appellant society, had invoked the jurisdiction of learned Special Judge, Gangster's Act to rectify the civil wrong.
It is further noted that pending consideration of application under section 16(2) of the Act that an FIR was lodged as an ancillary proceeding as the respondents continued to interfere with the properties in question. Hence, proceedings of FIR under section 3 of the Act was entirely separated and related with altogether different facets of criminal trial. Learned Special Judge further committed a mistake in judging that under section 16(4) it has to acted as a quasi-civil court and it possessed Civil Courts power as is provided under sub section 16 (4) of the Act and hence findings recorded by it's predecessors were findings recorded by a quasi-Civil Court.
Learned Special Judge further ignored the fact that section 17 of the Act contemplates two types of releases and is bifurcated into two parts. In the first part, if the Court finds that the property was not acquired by a Gangster, as a result of commission of offence under the Act, the property has to be released to the person from whose possession it was attached, but the second part requires that in other cases, the Court may makes such order for disposal of property by attachment, confiscation or delivery of property to the person "entitled to the possession thereof" or otherwise. Thus, power of the Court under section 17 of the Act is wide enough to imbibe it for disposal of the property in any manner, as it likes which is just and legal. Learned Special Judge, therefore, committed an error of law in joining FIR lodged by the President of the appellant society with that of it's right to possession under section 16 read with section 17 of the Act.
Further, it is evident from the impugned order that Ld. Special Judge did not addressed himself to the question of possession on the date of attachment to determine from whose possession, property was attached. Impugned judgement is completely silent on the said aspect of the matter and hence is contrary to section 17 of the Act. Respondents have also not produced any documentary evidence in that respect for establishing their claim of possession over properties in dispute. They further failed to bring forth any convincing evidence to establish their entitlement to possession. What is interesting to note is that some of the respondents (respondents no. 15,16 and 17) have pleaded that there was no civil dispute between them and appellant society and hence it was all the more incumbent upon Ld. Special Judge to determine entitlement of possession. In this connection, it is also pointed out that by mere raising of some constructions will not entitle a person to get possession over the property unless it is established that he was in lawful possession. Entitlement of possession under law means lawful possession and not illegal possession. View adopted by Ld. Special Judge therefore seems to be faulty and unsustainable.
Moreover, pleadings made by both the sides and cases put forth by them indicate that some of the facts inter se were not in dispute. Firstly, it was not disputed that the properties in question related with Plot No. 71 to 76 of Mohal of Prago Kunwar and Plot No. 61 to 68 of Mohal of Dargahi Lal and Plot No. 61 and 215 of Mohal of Hazaro Kunwar. It was also not disputed that an application in respect of the said property was filed by appellant society before the District Magistrate on 21.5.86 under section 14 of the Act raising grievance against the illegal activities of respondents and praying therein that the properties in dispute be attached and be released in favour of appellant society. It is also not in dispute that on the application filed by the appellant society, District Magistrate ordered an inquiry and in that inquiry, claim of appellant society was found to be correct and, therefore, A.C.M., Kanpur Nagar directed for attachment of the properties, which, in fact were attached on 21.11.87. It is also not in dispute that the said attached properties were released by Ex-party order on 9.12.87 by A.C.M., Kanpur Nagar in favour of respondents against which appellant society went up before Special Judge, Gangster's Act under section 16(2) of the Act on 24.12.87. It is also not in dispute that under the orders passed by Learned Special Judge, properties were reattached on 26.12.87. It is also not in dispute that after initial attachment, an Administrator Jagdish Narain was appointed over the disputed properties under section 14 of the Act and Ganga Deen and Abujar Khan were the witnesses of said attachment. Respondents have also not disputed application and affidavits filed by the Administrator as well as witnesses of attachment that when the properties were actually attached, it was from the actual physical possession of the appellant society. In this respect, the police report also supported appellant's claim as it mentioned that at the time of attachment, only the President of the appellant society was present at the spot and none of the respondents were present, which fact was also inked in the attachment memo prepared by the police. It is also not in dispute that the name of the appellant society was mutated over the disputed properties and they were also recorded as owners in Khewat (register of ownership). Both the parties were also not at discord that the disputed properties originally belong to Lala Gurdeen and in respect of these properties, the decree was passed in 1943. What has also not been disputed is the fact that on 2.4.70, respondent Nand Lal got his name muted over the disputed property. Thus, it is admitted to both the sides that after more than three decades, the decree passed in the Civil suit in 1943 was got executed.
The disputed facts were that according to the appellants claim, it was time barred execution under which, respondents had got no right or title and they, with an idea to grab the entire properties in question and to divest the appellant Samiti of it's lawful possession and claim indulged in illegal design. From the pleadings of appellant, it is clear that the appellants society had claimed the properties as a registered purchaser whose name were also recorded in the register of ownership and mutations were also carried out in it's name. This aspect of the matter has been completely ignored by the Learned Special Judge which passing impugned order as, Learned Special Judge has not at all considered what will be the effect of various orders passed in mutation proceedings by revenue courts and effect of various registered sale deeds in favour of the society as well as registered sale deeds alleged to have been executed in favour of respondents. These sale deeds and orders in mutation cases have been filed by appellant society through a supplementary affidavit filed on 8.10.2007.
The records further reveals that this Court in it's order dated 4.9.1907 had not at all touched the question on entitlement of possession and it only quashed the FIR which was lodged by the president of appellant society against the respondents under section 3 of the Act. The entire order of this Court does not at all considered the question of possession which was never raised before this Court. It is also admitted that on the earlier occasion, vide order dated 10.9.1990, question of possession was considered by the Learned Special Judge, Gangsters Act and it had held that appellant society is entitled to the possession of the disputed properties and respondent were trying to illegally grab it by indulging into illegal activities and filing of sham and vexatious litigations. Learned Special Judge Gangsters Act while passing the impugned order contrary to such findings did not at all meted out the reasons recorded in the order dated 10.9.1990 and completely ignored it. It observed that the said order was not a final order but it forget to look into the fact that the findings in favour of the appellant society was recorded there under and the same was under section 17 of the Act which was appealable under section 18 and no such appeal was filed against it. Learned Special Judge mentioned that the said order was not a final order and was challenged in this High Court but it committed apparent error on the face of the record, as in the order dated 10.9.1990, predecessor Special Judge has observed that the said order (10.9.1990) will be subjected to any order passed by the High Court but, since the High Court did not set aside that order, there was no occasion for the successor in offence to take a contrary opinion and record diametrically divergent findings without meeting the reasoning of the earlier order.
It is also noted that quashing of FIR by this Court had no adverse effect on the claim of entitlement of possession over the properties in question by the appellant society as, the proceeding under section 16 (2) was initiated much earlier than the FIR and it was only during pendency of that proceeding that FIR was lodged to curb the illegal activities of respondent and hence, quashing of FIR could not have affected the claim of appellant society regarding their entitlement to possession under section 16 (2) of the Act.
Learned Special Judge also committed glaring error on the face of the record in not looking into the reasoning, various judicial orders passed by revenue Courts in mutation proceedings and thereby completely eschewed from consideration relevant and germane evidences in favour of appellant Samiti, which conclusively had clinched the case in favour of appellant. Learned Special Judge also ignored the fact that the decree was never executed and it was time barred decree under which no right accrued to the respondents. It recorded a perverse finding against the merits of the evidence on record on the question of possession. The affidavit by the administrator and the witnesses of attachments, who all were totally independent witnesses and had no axe to grind against any of the parties were ignored albeit it was averred that at the time of attachment properties in dispute were in actual physical possession of the appellant society. Thus, the findings recorded in the impugned judgment are contrary to the undisputed uncontroverted documentary evidences produced by the appellant society and hence, impugned order is susceptible to criticism.
Learned Special judge further ignored the fact that appellant society's name was entered into Khewat (registered of ownership) and no challenge was made by the respondents in any revenue Court and therefore, it committed error on the face of the record to hold otherwise. It also ignored that principle of res judicata applies on the facts of the appeal. Appellant's counsel in this respect relied upon Apex Court judgment reported in Mohan Lal Vs. Kartar Singh and others 1995 SC 573.
In Kalpu and another versus Sanaurar Khan and another : AIR 1982 Allahabad 307 it has been observed by this court as under :-
"5. The applicability of the rule of res judicata prescribed by S.11. of the Civil P.C. does not depend upon the correctness or the incorrectness of the former decision. whether right or wrong, the former decision is binding between the parties. The subsequent deletion of Rule 26-A and the view of this Court that the rule was ultra vires could not have the effect of wiping out the earlier decision that the trees had been nurtured by the plaintiffs and belonged to them as they stood on Banjar land."
Learned Special Judge also ignored the fact that the challenge to the order dated 10.9.1990 was made in writ petition but that writ petition was dismissed in default and no order was passed by this Court setting aside the said order.
In respect of effect of the order passed by Division Bench of this court dated 4.9.1997, appellant's counsel relied upon Apex Court decision in State of Orissa Vs. Sudhar Shekhar Mishra: AIR 1968 S C 647 wherein it has been held Apex Court as under:-
"A decision is only an authority for what it actually decides. What is of the essence is a decision in its ratio and not every observation found therein nor of the logically follows from the various observations made in it. It is not a profitable task to extract a sentence here and there from a judgment and built upon it."
In State of M.P. versus Ramesh Chandra Bajpai: (2009)13 SCC 635 it has been held as under:-
"26. In our view, the aforementioned decision has been misapplied and miscontrued by the High Court. It is now well-settled principle of law that a decision is an authority for what it decides and not what can logically be deduced therefrom."
In Bombay Dyeing and Mfg.Co.Ltd. v. Bombay Environmental Action Group and Ors:AIR 2006 SC 1489 it has been held as under:-
"312. So far as order of this Court dated 11.5.2005 is concerned, again the validity or otherwise of the BIFR Scheme and / or implementation thereof was not in question. An order of this Court, in which the same was passed. For the said purpose, the orders of this Court were required to be read in their entirety. A judgment, it is well-settled cannot be read as a statute. (See Sarat Chandra Mishra Vs. State of Orissa and State of Karnataka Vs. C. Lalitha.) Construction of a judgment, it is well-settled should made in the light of the factual matrix involved therein. What is more important is to see the issues involved therein and the context wherein the observations were made. Any observation made in a judgment, it is trite, should not be read in isolation and out of context."
Further it is noted that the learned special Judge while passing the impugned order fell in error and appendaged two different proceedings one having a civil textures, and other regarding a criminal offence. The proceedings under section 16(2) of the act was entirely different from the FIR lodged subsequently and related with crime no. 266 of 1990, under section 3 of the Act. Thus, the entire approach adopted by the learned Special Judge in passing the impugned order was faulty and hence cannot be countenanced.
The opinion by the Special Judge that vide order dated 4.9.1997, this Court had set aside the order dated 10.9.1990, passed by Special Judge Gangsters Act is also wrong and against the merits of evidence on record. Property was attached under the orders passed by the Special Judge Gangster's Act prior to registration of FIR and therefore, quashing of FIR or criminal proceeding would not have invalidated earlier findings recorded on 10.9.90.
It also ignored the police report dated 20.9.1997, wherein it was specifically mentioned that at the time of attachment, properties in question were in actual physical possession of appellant society and it was from their physical possession that the same was attached. In support of the submissions that no findings can be recorded on conjectures and surmises against the merits of evidence on record, appellant's counsel relied upon the Apex Court decision in State of U.P. Vs. Pheru Singh etc. AIR 1989 SC 1205 wherein it has been held as under:-
"It is well-settled principle of law in criminal jurisprudence that no finding can be rendered either on mere surmise or conjecture and every finding should be based on satisfactory and acceptable evidence."
Special Judge, so far as properties mentioned under scheduled "Da" is concerned, itself recorded a finding that the respondents therein had illegally grabbed the property of plot no. 78 and they have not filed any affidavit to contest the claim of the appellants Samiti and therefore, it committed illegality in not releasing said property to the appellant society.
Since I find that the impugned order is against the merits of evidences on record and has been passed without application of mind ignoring documentary evidences and on a wrong premise altogether, that I am of the opinion that the said order cannot be sustained and is liable to be interfered with and rectified.
In view of above, appeal is allowed. Impugned order dated 19.5.2003 passed by Special Judge (Gangster), Kanpur Nagar in Case No.96 of 1987, Kailash Sahkari Avas Samiti versus Nand Lal and others under Section 16/17 U.P. Gangster and Anti-Social Activities (Prevention) Act is hereby by set aside and all the properties involved in the case and attached on 16.12.87 under the orders of Special Judge, Gangster's Act is directed to be released in favour of appellant society.
Appeal is allowed.
Dt.22.5.2012
RK/AKG/Tamang
