Disposed

D.P.Maheshwari v. State of Kerala

Kerala HC6 Jul 2012Bail Appl./2572/2012

Case brief

AI extract

What is this about?

The High Court granted the applicant three weeks time to appear before the Investigating Officer. The Court directed that upon interrogation, the applicant be produced before the Magistrate, who will dispose of the bail application after hearing the Public Prosecutor.

What did the court decide?

Applicant granted three weeks time to appear before the Investigating Officer; to be produced before Magistrate for bail disposal thereafter.

D.P.Maheshwari Vs State of Kerala — Anticipatory Bail | Kerala HC (2012)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE N.K.BALAKRISHNAN

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FRIDAY, THE 6TH DAY OF JULY 2012/15TH ASHADHA 1934

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Bail Appl..No. 2572 of 2012 ()

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CRIME NO.458/2007 OF VANCHIYOOR POLICE STATION, THIRUVANANTHAPURAM.

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APPLICANT/ACCUSED NO.2:

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D.P.MAHESHWARI, AGED 63 YEARS PRESIDENT (SOUTH INDIAN ESTATES) JAY SHREE TEA & INDUSTRIES LTD. HAVING ITS REGISTERED & HEAD OFFICE AT INDUSTRY HOUSE, 15TH FLOOR, 10 CAMAC STREET KOLKATA. (RESIDING AT HOUSE NO.10, CAMAC STREET KOLKATA).

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BY ADVS.SRI.P.VIJAYA BHANU (SR.) SRI.VIPIN NARAYAN

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RESPONDENT(S)/COMPLAINANT:

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STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM.

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BY DIRECTOR GENERAL OF PROSECUTION SRI. ASAF ALI

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THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 06-07-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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tss

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N.K. BALAKRISHNAN, J.

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B.A. No: 2572 of 2012

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Dated this the 6^th day of July, 2012

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O R D E R

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The petitioner is the 2^nd accused in Crime No: 458/2007 of Vanchiyoor Police Station, Thiruvananthapuram. The offences alleged are under sections 120-B, 420, 465, 467, 468 and 471 r/w 34 of IPC. Apprehending arrest, the petitioner approached this Court for anticipatory bail.

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The petitioner is stated to be the President of 'Jay

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Shree Tea & Industries Ltd.', a public limited Company having its registered office at Kolkata. It is stated that the said company was having in its possession an estate by name 'Merchinston Estate' having an extent of 707.23 acres situated in Thenoor Village, Nedumangadu Taluk. The said property originally belonged to Mr. Richard John Arther Moore. From him the petitioner's Company purchased the said property in the year 1954. It is stated that the Company thereafter sold the said estate to M/s.Southern

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Field Ventures Private Limited, of which one Mr.Xavi Mano Mathew has been the Managing Director. That document was executed in the year 2005. It is alleged that Mr.Xavi Mano Mathew, who purchased the property in 2005, sold a portion of that estate to I.S.R.O.

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It was contended by the respondent that the property in question was actually notified as 'Ecologically Fragile Land', as per which it stood vested with the Government from 01.05.2000. Since the property stood vested with the Government and as it is 'Ecologically Fragile Land', the sale deed executed by Mr.Xavi Mano Mathew in favour of I.S.R.O. was actually the result of a conspiracy hatched among Mr.Xavi Mano Mathew, the petitioner herein, and the officials of I.S.R.O.

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It is argued by the learned senior counsel appearing for the petitioner that the case was first investigated by the local police and they filed a report

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before the Court referring the case as 'Mistake of Fact'. Thereafter, the State Police Chief ordered constitution of a special team to re-investigate the case and during reinvestigation, the petitioner herein was directed to appear before the Police to be questioned with regard to matters involved in this case.

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The petitioner also admits the fact that originally an extent of 268.72 hectares (equivalent to 664.021 acres) was notified as Ecologically Fragile Land. The ordinance subsequently lapsed. Thereafter, the Act 'Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Act, 2003' was enacted. Thus, in the writ petition filed by the petitioner's Company, this Court directed the Company to approach the Ecologically Fragile Land Committee constituted under the Act. It was then the Company sold the estate to M/s. Southern Field Ventures Private Ltd., of which Mr. Xavi Mano Mathew was the Managing Director. It

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is stated that Mr. Xavi Mano Mathew, thereafter, approached the Ecological Fragile Land Committee. The Ecological Fragile Land Committee was stated to have investigated the matter and submitted a report in the year 2007 holding that only 24.409 hectares (equivalent to 60.3159 acres) alone is E.F.L. The rest of the land was directed to be restored to M/s. Southern Field Ventures Private Ltd.

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Annexure X letter by the Chairman, Taluk Land Board, Nedumangad, who is the investigating officer would show that originally the total land held by Merchinston Estate was assessed by the Taluk Land Board as 707.23 acres. It was stated that as per that Order, 141.34 acres was directed to be surrendered to the Government as excess land. It was further stated that out of the said land 60.22.00 acres of land was taken over by the forest department as vested forest. It was stated that, as ordered that much extent of land was taken possession by the

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Authorised Officer. But as against the order of the Taluk Land Board the Company filed CRP No:2346/1984 before this Court. As per order dated 26.07.1988 the Taluk Land Board was directed to re-assess the extent of land owned by the Company and the extent of the property allowed to be held by the Company. It was reported as per Annexure X letter that an Order was passed by the Taluk Land Board on 20.06.1991 as B6/75164/88/TLB/NDD reopening the ceiling case. The total land held by Merchinston Estate/Company was re-assessed as 706.46.051 acres as against 707.23 acres. Hence, draft statement was sent individually to the parties, provisionally assessing 160.99.132 acres to be the excess land to be surrendered to the Government. Again the petitioner in that proceedings, namely the Company, requested for Survey record. The Survey record was not available. It was directed to be resurveyed. But it was stated that final detailed sketch was

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not received. It is surprising to note that, as has been disclosed in Annexure X letter, the case was once posted to 14.01.2000. It was stated that again suo motu the case was taken up under section 85(7) of KLR Act.

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Whatever that be though notice was stated to have been issued on 02.05.2000, posting the case for appearance of the representatives of Merchinston Estate and the other Company on 27.05.2000, thereafter there was no progress at all in the Land Board proceedings. More than 12 years have elapsed. It is not known what is the legal hurdle in the disposal of the Taluk Land Board case, re-assessing the total extent of land and the extent of land, if any, to be surrendered by the Company. The Director General of Prosecution would submit that the petitioner herein and Mr.Xavi Mano Mathew representing the Merchinston Estate are not appearing for the Taluk Land Board proceedings. Even if it is so, still it is surprising how a case could be

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pending for more than a decade.

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Annexure IX is the order passed by the Revenue

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Divisional Officer on 03.10.2007 as per which the mutation effected pursuant to the assignment in favour of Mr.Xavi Mano Mathew and other person was held invalid. The mutation effected was thus cancelled by the R.D.O. The learned Director General of Prosecution would submit that as per Ordinance No:8 of 2000 namely the Kerala Forest (Vesting and Managerment of Ecologically Fragile Lands) came into force with effect from 02.06.2000. As per the provisions of that ordinance, the Ecologically Fragile Land stood vested with the Government. There was no notification or order de-notifying or divesting the possession of the Government on such land and that there was no automatic re-possession of the land by the parties concerned. Simply because for a particular period the ordinance or the Act was not in force does not mean that

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the land once vested with the Government would simply revert back to the parties concerned, the learned Director General of Prosecution submits. It is further submitted that when the Taluk Land Board declares what was the excess land which was to be surrendered by the Company and out of which what was the portion of the land declared as Ecologically Fragile Land, those factors cannot be suppressed by the Company while executing a sale deed assigning the property including the Ecologically Fragile Land. Therefore, according to the learned Director General of Prosecution, even if the Company is entitled to execute a sale deed in favour of the third party assigning their right title and interest over the land held by them, that cannot create a better title in favour of the assignee as the vesting of the land with the Government had taken place by virtue of the provisions contained in the ordinance.

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The learned Director General of Prosecution

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submits that the contention that this petitioner had no role in the transaction or that he was not a party to the criminal conspiracy cannot be accepted at all, for, the petitioner was well aware of the fact that the Taluk Land Board had once directed the petitioner to surrender a particular extent of excess land and that this Court, in the revision petition, remanded the matter to re-assess the exact excess of land to be surrendered. The contention that the petitioner had liberty to surrender any part of the land within the total extent of land held by the Company and so it cannot be said that there was criminal conspiracy in the matter of assignment also, according to the prosecution, cannot be accepted. It is also pointed out that several notices were sent to the petitioner to appear before the investigating officer so as to collect details regarding transactions and other aspects. The petitioner cannot sit at Kolkata and say

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that he cannot be asked to appear before the investigating officer only shows indifference, if not, impudence of the petitioner, the prosecution contends. It is also pointed out by the prosecution that, though the crime was registered about 5 years back, the investigation could not be completed only because of the non co-operation by the petitioner. It is submitted by the learned senior counsel that the petitioner is prepared to co-operate with the investigating officer. According to the prosecution, custodial interrogation is required to elicit all matters connected with the conspiracy of 'cheating' alleged by the prosecution.

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It is true that if the property belonged to the vendors on the strength of a valid document of title, then, even if the Ceiling proceeding were/are pending, it can be contented that the ultimate assignee would be bound by the final order passed in the Ceiling case and so it cannot be said that there was any forgery or creation of fraudulent

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documents to cheat the Government. Similarly, even if any document of assignment is executed, if actually the property is declared as Ecologically Fragile Land, then in spite of the assignment deed the property can be proceeded with ignoring the assignment deed pending litigation. If the vendor had valid title to the property, the vendee can enjoy the property subject to the liability or encumbrance the property carries with it.

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It is also pointed out on behalf of the Prosecution that this petitioner and Mr. Xavi Mano Mathew, who were respondents before the R.D.O. in Annexure IX proceedings, were found to have got the transfer of registry (mutation) in the revenue records done with the help of the Village Officer without identifying the land and without verifying the revenue records. The learned senior counsel submits that in any event it cannot be said that the documents were forged by this petitioner or that he caused or facilitated the

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commission of any such forgery. The petitioner contends that even if false recitals are incorporated in a document of assignment, so long as the vendor had title to the property, it cannot be said that there was any sort of forgery. Even if the recitals in the documents were intended to cheat the Government, it cannot be said that the offences under sections 465, 467, 468 and 471 of IPC would apply, the learned senior counsel rightly submits. There is force in that submission. But it may not be proper for this Court to enter a finding regarding the same at this stage. The prosecution contends that the main allegation is that there is a criminal conspiracy in order to cheat the Government by executing documents. It is further contended that the petitioner could have co-operated with the investigation for which he could have appeared before the investigating officer. But that was not done.

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The learned D.G.P. would submit that the main

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contention advanced by the prosecution is that there was dishonest concealment of facts, while the sale deed was executed on 30.03.2005 with regard to the proceedings which were pending before the Taluk Land Board and other litigations pertaining to that property and so it can be found that there was a deliberate attempt to cheat the Government of Kerala.

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It is pointed out that ordinance No.6/2000 became lapsed on 17.07.2001. The learned D.G.P. submitted that the Forest (Vesting and Management of Ecologically Fragile Lands) Act, 2003 (Kerala Act 21 of 2003), though was published on 08.05.2005, came into force retrospectively with effect from 02.06.2000. The petitioner contends that since the Act actually came into force on 08.06.2005, the provisions of the Act cannot affect the sale deed executed on 30.03.2005, when the Act was not in force. The learned senior counsel for the petitioner submits that even without

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going into that aspect, the petitioner can contend that the area covered by the document does not come within the definition of Ecologically Fragile Lands under the said E.F.L. Act. It is pointed out that plantations like tea, rubber, pepper, coconut, aracanut and cashew plantations are out of the definition of 'Ecologically Fragile Lands' as per Act 21 of 2003. In support of that contention, the decision of this Court in Advocate P.Rehim V. Binoy Viswam and others [2008(3) ILR 457] has also been relied upon. The land covered by the registered sale deed mentioned in this case was part of a tea estate and so the petitioner contends that the land in question does not come under “Ecologically Fragile Lands”.

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It is also argued that the declarant can exercise the option under the K.L.R. Act to surrender any portion of the land if it is free from encumbrance or other liabilities and which is not an E.F.L., even if E.F.L. Act is made

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applicable to any portion of the disputed land.

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In view of what is stated above, this petition is disposed of as stated below.

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The petitioner is granted three weeks time to appear before the Investigating Officer. After interrogation the petitioner shall be produced before the learned Magistrate. When the petitioner applies for bail, the learned Magistrate will dispose of the same in accordance with law, but after hearing the learned APP. The application shall be disposed of, as far as possible, on the same day.

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Sd/-

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N.K. BALAKRISHNAN, JUDGE

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//True Copy//

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P.A. to Judge

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jjj

D.P.Maheshwari v. State of Kerala

Case brief

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D.P.Maheshwari v. State of Kerala

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