Virender Singh J
1. The petitioner, who is a co-accused in Crime No. 57 of 2010 registered at Police Station Special Police Establishment (SPE) (Lokayukt), Indore
under Sections 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988 and also read with Section 120-B of the IPC, has preferred
this revision petition under Sections 397, 401 of Cr.P.C. and has also invoked extraordinary powers of this Court under Section 482 of Cr.P.C. for
quashing the aforesaid FIR and the proceedings pending against him as Special Case No.05 of 2013 before the Court of Special Judge, P.C. Act,
Indore, initiated on the basis of the aforesaid FIR.
2. The petitioner has claimed parity with co-accused Ramesh Mendola and other co-accused persons, who have been granted similar relief by this
Court vide order dated 07.04.2017 passed in Criminal Revision No.1011 of 2016 and other connected matters (Cr.R. No.952 of 2016, Cr.R. No.953 of
2016, Cr.R. No.996 of 2016, Cr.R. No.1019 of 2016, Cr.R. No.1105 of 2016, Cr.R. No.1127 of 2016 and Cr.R. No.1093 of 2016, Cr.R. No.1118 of
2016 and M.Cr.C. No.8078 of 2016). By this order, this Court quashed the FIR (No. 57/2010) and all proceedings of Special Case No.05 of 2013
initiated on the basis of this FIR qua Ramesh Mendola and directed the trial Court to examined the matter of other co-accused persons namely;
Sohanlal Parekh, Vijay Kumar Parekh, Mohanlal Parekh, Ashok Parekh, Hansaben Parekh, Vijay Kothari, Manish Sandhwi, Jagdish Dangawkar,
Rakesh Sharma, Suresh Kumar Jain, Nityanand Joshi, Seema Badjatya, who had also preferred the petitions for the same relief, in the backdrop of the
order passed by this Court in CRR No. 1011/2016. Following the direction, the learned trial Court examined the matter of aforesaid co-accused
persons and discharged them also from all the charges vide order dated 23.05.2018 passed in the proceedings of Spl. Case No. 05/2010.
3. The petitioner, who had not filed any petition earlier, later filed application before the trial Court for his discharge, but the same was dismissed by
the same order dated 23.05.2018 observing that once the charges have been framed, the trial Court has no power to drop them or to discharge the
accused. In view of the law laid down in Ratilal Bhanji Mithani Versus State of Maharashtra reported in AIR 1979 SC 94; 2007 SCC Online Calcutta
295; Hazara Singh Vs. State of Punjab 2011 SCC Online P. &H. 4021; Solanki Babulal Atmaram Vs. State of Gujarat 2013 SCC Online Gujarat
6570, there is no illegality, incorrectness or perversity in the order of the Trial Court.
4. The petitioner has also invoked inherent powers of this Court under Section 482 Cr.P.C. and seeks intervention of this Court for the same relief i.e.
quashing of FIR and proceedings of Spl. ST No. 05.13.
5. In the charge-sheet, the only allegation against the petitioner is that in the year 1991, he as Assistant Building Officer (Sahayak Shilpgya),
forwarded the file of renewal of building permission granted in the year 1990 in favour of M/s. Dhanlaxmi Chemical to his senior ignoring the note of
the then Sub-engineer Ramchandra Purohit dated 11.07.1990 that the land was allotted for industrial purpose while the permission has been obtained in
1990 for residential purpose, therefore, explanation be called for or suitable action be taken against the applicant and his senior renewed the permission
on 15.04.1991. The building permission and its renewal was granted without diversion of the land from industrial to residential, without sanction of site
plan by Town & country Planning and against the terms and conditions of the compromise between the Indore Municipal Corporation, (I.M.C.) and
M/s. Dhanlaxmi Chemical Industries.
6. Admittedly, at the time of granting building permission in the year 1990, the petitioner was not posted in the concerned Section of the I.M.C.and this
building permission was renewed by his Senior Officers. The petitioner was only a link to the chain of Officers involved in the process of renewal of
alleged building permission.
7. Learned Public Prosecutor has fairly admitted that the case of the petitioner has complete parity with the case of the aforementioned co-accused
persons, who have been granted similar relief by this Court.
8. The order dated 07.04.2017 passed by this Court in CRR No.1011 of 2016 filed by the co-accused Ramesh Mendola reads as under:
Since a common question of law is involved in these criminal revisions and misc. criminal cases, therefore, they are heard together and disposed of by
this order. For the sake of convenience the facts are borrowed from Criminal Revision No.1011/2016.
2. The petitioners named above seeking to challenge the charges framed against them vide order dated 25.5.2016, passed by the Special Judge, Indore
in Special Case No.5/2013, rejecting the application of the petitioner(s) under Section 218 of Cr.P.C., and framing charges under Sections13(1) (d)
read with Section 13(2) of the Prevention of Corruption Act, 1988 (hereinafter referred as ‘P.C. Act. 1988’) and under Sections 109, 201 and
120B, IPC.
3. In Criminal Revision No.1011/2016 and other connected cases, the core question, which arises for consideration is whether, the revisional petitioner
therein and other accused persons can be charged and tried by the Special Judge under Section 13 (1) (d) and 13 (2) of ‘P.C. Act. 1988’, 120-
B and Sections 109, 201 read with Section 120-B, IPC.
4. Facts giving rise to this criminal revisions and misc. criminal cases under Section 482, Cr.P.C, are that, in the year 1944, the then Director of
Industries, Govt. of Indore, as per the provisions of City of Indore Improvement Trust Act, 1924, leased out 8 acres of land bearing Survey No.613
(part), situated in village Sukhliya, Tehsil & District, Indore, to M/s. Himmatlal & Company (in short ‘Original lessee No.1’) for establishment of
‘Pottary industry’ for ten years w.e.f. 6.3.1944. It was subsequently renewed for a period of ten years till 6.3.1964.
5. The land in question along with some other properties of Town Improvement Trust was transferred to the Municipal Corporation, Indore. In 1965,
after expiry of renewal period, the Indore Municipal Corporation filed a suit for recovery of the possession of the said land as well as for recovery of
lease rent @ Rs.3600/- per annum vide Suit No.1/1965, which was subsequently re-numbered as CSN.2- A/1977.
6. On 21.3.1975, master plan of Indore came into existence under the provisions of M.P. Nagar Tatha Gram Nivesh Adhiniyam, 1973. As per master
plan, which came into force in 1975, the use of the land in question has been changed from ‘Industrial’ to ‘Residential purpose’.
7. Later on in the suit on 13.11.1980, a compromise application was jointly filed by the parties, which was accepted and recorded by the Second Civil
Judge, Class I, Indore and on the same day a decree was passed. As per compromise decree, out of 8 acres of land, 5 acres of land was returned to
and retained by the plaintiff â€" Indore Municipal Corporation and the remaining, 3 (three) acres of land (1,31,600 Sq. ft.) continued to remain in
possession of the defendant â€" M/s. Dhanlaxsmi Chemical Industries, to whom a lease for a period of 30 years commencing from 13.11.1980 to
12.11.2010, was granted by the Municipal Corporation, Indore. Clause n] d] [k] x] ?k] ;] j] y of the compromise decree are relevant which reads as
under :-
- 30 1500) ( )
13-11-90 ( )
2400) ( )
- - ,
,
- -
,
- ,
-
, -
- , ,
-3
-
8. On 18.11.1980, State Government also ratified and granted permission regarding action taken by the Municipal Corporation, Indore, for executing
lease deed in favour of M/s. Dhanlaxsmi Chemical Industries. Permission letter dated 18.11.1980 reads as under :-
5109/18/2/80 , 18/11/1980 ,
, ,
:- ,
8 ,
........... .........
◌ ◌
2/ 03-11-80
5 (...........
584 ) 3
3/ ......... 3
:-
1. 13-11-80 30
2. 3 1500/- 13-11-1990 2400/-
3.
◌◌◌
4.
5. 30 30-30
6.
◌
7. 15
4/ 5053/13/2/80 17/11/80
( . . )
9. In pursuance to the compromise decree and permission granted by the State Government a registered lease deed was executed in favour of M/s.
Dhanlaxmi Chemical Industries (in short ‘lessee No.2’) vide registration No.5785 dated 12.1.1981. Clause 1, 2, 3, 4 and 6 are relevant which
reads as under :-
13-11-80 30 ( ) 3 ( ) 1,500,00 ( )
13-11-1990 20
. 2400/-( )
, ,
1. ,
◌
2. , ◌
3. 30 ,
4. , ,
,
6. , ,
, 3
◌
, 3
10. On 6.11.1989, lessee No.2 applied for permission to construct a residential building (a part of the grant area as per plan submitted before the
Municipal Corporation, Indore). On 6.1.1990, Municipal Corporation, Indore, granted permission for construction of residential building. Relevant part
of the sanctioned which has been conveyed to lessee No.2 vide letter No.690, on 6.1.1990 reads as under :-
◌
- 8
. 1105 6/11/89
-
11. On 15.4.1991, the said permission was renewed by the Municipal Corporation, Indore for a period upto 14.4.1992, on the following terms and
conditions :-
-
1. . 1091 13/2/90
◌◌◌◌
2.
3.
4.
5. 6.
7. 1984
- 14 3 92
12. On 15.5.2001, lessee No.2, made an application to Indore Municipal Corporation to mention the use of land as residential colony since the lease
does not mention any use and master plan declares the area to be a residential zone, so it cannot be used for any other purpose. The lessee ready to
pay the lease rent for residential use in place of Industrial use.
13. On 4.6.1991, the Resolution No.120 dated 4.6.1991 was passed by the administration in respect of payment of annual rent. Relevant part of the
Resolution reads as under :-
2. ◌ 54 26-4-61
-
1.
6
◌◌
2.
2
.
14. On 3.6.2002, Mayor â€" in â€" Council passed a resolution No.289 permitting the use of land as ‘residential’ purpose, lease rent to be
computed as per 1990 Collector’s rate.
15. On 17.6.2002, Municipal Corporation, Indore, in terms of resolution dated 3.6.2002, passed a Resolution No.58 dated 17.6.2002 permitting the use
of land as residential on the following conditions :-
◌ ◌
2. ( )
- , 3
◌◌
1. 1990 35/- 10
3 2 1990 2003
1,19,020/- 2010
2. 2010
3.
◌◌
4.
16. On 9.1.2003, lessee No.2 has executed an agreement to sale of lease hold rights in favour of Nanda Nagar Sahakari Sakh Sanstha Maryadit,
Indore (hereinafter referred as ‘lessee No.3’) with respect to 1,21,600 Sq. fts land out of total land of 131600 (3.00 acres) at the rate of Rs. 114
per Sq. ft. amounting to total Rs.1.38 crores. On the date of the agreement, the amount of Rs.28,00,000/- by two different cheques have been paid as
a earnest money to the lessee No.2.
17. On 22.1.2003, an application was moved before the Director, Town and Country Planning for sanctioning layout plan and granting permission to
develop the land for ‘educational’ and ‘health purpose’. On 26.2.2003, lessee No.2 wrote a letter to the Municipal Corporation, Indore
that they have no objection for granting permission in favour of the lessee No.3. The lessee No.2 also gave no objection for renewal of lease period.
On 28.2.2004 again lessee No.2 applied for grant of permission for transfer of lease hold right in favour of lessee No.3. On 25.3.2004, the Municipal
Corporation, Indore has issued ‘no objection certificate’ in favour of lessee No.2 for transferring lease hold right.
18. The then Commissioner, Municipal Corporation Shri C.B. Singh, has appended his signature on 15.4.2004. Thereafter, on 29.5.2004, a registered
sale deed of lease hold right has been executed by lessee No.2 in favour of lessee No.3.
19. After execution of sale deed on 1.9.2004, the lessee No.3 has submitted an application along with the copy of the registered sale deed in the office
of Indore Municipal Corporation for mutation, which was duly considered by Mayor â€" in â€" Council on 22.9.2004 vide Resolution No.759, the
society’s mutation was accepted subject to permission of State Government. Since the multi storied building has not been purchased by the lessee
No.3 (society) and, therefore, as per Resolution No.204 dated 22.12.2000, the additional lease rent need not to be recovered from the lessee No.3
(society). By the aforesaid resolution, it has been resolved that this mutation was accepted for next 30 years period on the same lease rent. The due
permission / sanctioned from the said be taken in accordance with law. Relevant part of Annexure P/8, dated 22.9.2004, reads as under :-
58 17-6-02
,
737, 01.09◌.2004
,
, 5000
ª
204 22.12.2000
30 ,
20. The Municipal Council Committee vide Resolution No.106 dated 6.10.2004 (Annexure A/9), confirmed the Resolution No.75 dated 29.2.2004.
Para 2 and 3 of the said resolution reads as under :-
◌ ◌
2. 58 17-6-02
,
737 1-9-04
3. , , ◌
5000
204 22-12-2000
30
21. After a period of six years from the date of execution of sale deed in favour of the lessee No.3 (society) one political rival Shri Suresh Seth,
former MLA and also former minister for Urban Development filed a private complaint under Section 200 of Cr.P.C., on 27/30.3.2010 before the
court of Special Judge, along with an application under Section 156 (3) of Cr.P.C, for issuance of direction to the Economic Offences Investigation
Bureau to register FIR alleging that the petitioners therein conspired with co-accused persons concocted documents contrary to law, illegally
transferred the Government land situated at 1 â€" Pardesipura, Indore thereby causing revenue loss to the tune of crores of rupees to the State
Government. It is alleged in the complaint that the disputed land was given on lease for the purposes of Industrial use. After taking land on lease M/s.
Dhanlaxmi Chemical Industries, Indore, transferred the said land to the said Nanda nagar Sakh Sahkarita Maryadit, Indore and this has been done
illegally, without obtaining permission from the State Government and thereby committed the afore-mentioned offences. The learned Special Judge by
order dated 6.4.2010, directed on the application moved under Section 156 (3) of the Cr.P.C, to the Special Police Establishment (Lokayukt office),
Indore that if commission of cognizable offence found to have been committed then, in that case, the Special Police Establishment (for short
“SPEâ€) to proceed in the matter under the provisions of Section 156 (1) of the Cr.P.C. and to intimate the court in this regard, otherwise submit a
report on the next date. This order was challenged by filing petition under Section 482 of Cr.P.C, 1973 vide M.Cr.C.No.5042/2010 and
M.Cr.C.No.4511/2010 by one Manish Sanghvi and Ramesh Mendola. The Division Bench of this court do not find any substance in both these
petitions and dismissed the same vide order dated 4.10.2010. The order passed by the Division Bench was challenged by filing the petition (s) for
special leave to appeal (Cri) before the Apex court whereby, the Apex court on 9.5.2011 dismissed the CRLMP No(s)8872/2011, leaving the question
of law open.
22. In the year 1994-95, the petitioner in Criminal Rev.No.1011/2016 (Ramesh Mendola), was elected Municipal Councillor from ward No.12, from
1999 to 2004 and 2004 to 2009 was elected Municipal Councillor from ward No.13. In 2008-13, he was elected Member of Legislative Assembly from
Indore No.2 Vidhan Sabha.
23. On 5.8.2010, the SPE of Lokayukta, Indore registered a case No.57/2010, against the petitioner and other persons for the offence punishable
under Sections 13 (1) (d) and 13 (2) of P.C. Act read with Sections 109, 201 and 120-B, IPC and started investigation.
24. After completing the investigation, investigating officer submitted the charge â€" sheet dated 15.5.2013 before the Special Judge, Indore on
20.5.2013. The Investigating Officer found commission of offence, misuse of official position conspired to cause gain to partners / Directors of lessee
No.2 (M/s. Dhanlaxmi Chemical Industries) and causing loss to Municipal Corporation, Indore by the accused persons including the petitioner alleging
to have committed offence under Section 13 (1) (d), 13 (2) of P.C. Act, 1988 twice, 120B, IPC and Section 201 read with Section 109, IPC. The
investigating officer over all found the commission of offence by 28 accused persons including the petitioner. The charge â€" sheet records that 18
officials of Municipal Corporation, Indore, including the petitioner who was member of Corporation and also member of Mayor â€" in â€" Council at
that time in criminal conspiracy with ten persons of lessee No.2 (M/s. Dhanlaxmi Chemical Industries), caused monetary loss of Rs.1,58,21,347/- to
the Indore Municipal Corporation / State Government and extended the wrongful gain to the concerned of the same amount.
25. The petitioner is being prosecuted along with many others in the aforesaid Special Case No. 5/2013 for the alleged offences punishable under
Section 13 (1) (d) read with Section 13 (2) of the P.C. Act, 1988 r/w Sections 109, 120-B and 201, I.P.C. As per charge sheet filed by the respondent,
it is divided in 4 parts under 4 different and distinct heads as follows :-
Charge No.1
i) The first head relates to the year 1990-91, when the Officers and staff of the Building Permission Department of IMC accorded sanction on
6.1.1990 for construction of a building on a part of the land without diversion of the land by approving the map which was again renewed on
15.4.1991, without bothering for the diversion fee, thus causing a wrongful loss of State. The charge sheet has been specifically named and held
responsible the following accused :-
(1) Shri Mohanlal Parikh, (2) Smt. Hansaben parikh, (3) Shri Sohanlal Parikh, (4) Shri Ashok Kumar Parikh (5) Shri VijayKumar Parikh (6) Shri
Naginchandra Kothari,
(7) Smt. Seema Badjatya, (8) (Late ) Shri Goutam Badjatya (9) Shri Natyanand Joshi, (10) Shri K.R. Mandovara, (11) Shri Narendra Surana, (12)
ShriVimal Jain (13) Shri Rakesh Mishra, (14) (Late ) Shri J.M. Awasia (15) Shri S.K. Bais
Charge No.2
ii) The Second head relates to the year 2002 when the calculation of lease rent by the Officers of the Municipal Corporation who, according to the
charge sheet conspired together to cause wrongful loss to IMC and the State Govt,. and wrongful gain to the partners of lessee No.2. After a detailed
examination of this charge the Investigating Officer, has concluded as per charge sheet found guilty, the following accused :-
1. Shri Jagdish Dagaonkar 2. Shri Ashok Baijal
3. Shri Suresh Kumar Jain 4. Shri Dinesh Sharma
5. Shri Vijay Kothari 6. Shri Manish Sanghvi According to the petitioner the allegations as made and contained in the charge sheet there is not even a
whisper, much less any role whatsoever either attributed or deducible or inferable against the petitioner so far as the allegations contained and
described under head No. 1 & 2 of the charge sheet. Even otherwise till then the petitioner had or could have no concern with the said land or any act
relating to the said land.
Charge No.3
iii) The third head as enumerated in the charge sheet relates to the grant of no objection for sale of Lease Hold Rights to the lessee No.3 (Society) of
which the petitioner was the President (Which he has already resigned) and allegedly entering into agreement between lessee No.2 and lessee No.3
for sale of lease rights and thereby allegedly causing loss to IMC.
Charge No.4
iv) The last Charge relates to giving application by the lessee No.3 (Society) on 23.02.2004 for mutation only on the basis of agreement, while lessee
No.2 had given application on 28.02.2004 and no objection certificate was given on 25.03.2004. Here again the only role attributed to the petitioner is
restricted and confined to the moving of an application for mutation of the land in question in favour of the lessee No.3 in his capacity as President, for
the first time in the year 2001 the lessee No.3 (Society namely Nanda nagar Sakh Sahkarita Maryadit) through its President, the petitioner came into
picture when it intended to purchase the lease hold rights of the land. So far as Previous two heads of charges relating to building permission and
determination of lease rent are concerned, neither any involvement of the petitioner was possible nor was even alleged in the charge sheet. The
persons and officers who have been alleged for the above previous two heads of charges are totally different, there is long gap of time between two
sets of charges (First & Second and third & fourth ). There is no nexus, relation and continuity between them as is evident from the Charge Sheet.
V. It is submitted that the charge of criminal conspiracy u/s 120 (B) IPC is common to all the charges, except charge no. 3, as framed against the
petitioner.
26. Learned Senior counsel for the petitioner submits that he at this stage is not contesting the veracity or otherwise, of the facts alleged against him.
Taking them on their face value yet it cannot be said that a case of criminal conspiracy is made out against him as erroneously concluded by the
Learned Special Judge.
27. In respect of charge framed u/s 13 (1) (d) and 13 (2), the genesis of facts is that the petitioner did not perform his duties as described in section
25-A of the M.P. Municipal Corporation Act, 1956. Mere inaction by a corporator does neither constitute overt Act nor act of commission which
gives quorum for offence u/s 13 (1) (d) r/w/ 13 (2) and misuse of official position is must.
28. As per charge sheet there is long gap of alleged illegal acts as contained in the head No. 1 & 2 of charges and also they are having no connection
or nexus with the head No. 3 & 4 of charges. At the time of commission of alleged offences of first two heads of charges, the Petitioner for the initial
period was not even Coorporator and had no connection or concern with the land nor had even thought to enter into any transaction of the said land.
Any role of the petitioner was neither alleged nor could have been alleged. Even provisions of section 25-A of the M.P. Municipal Corporation Act
were not in existence in the statute. When at the time of commission of the alleged offences, the petitioner was not a public servant, therefore, he
could not have been prosecuted either for such alleged offences or as a public servant.
29. In the present matter the matter relating to transfer of lease hold rights has been referred by the Municipal Corporation to the Government for
grant of sanction vide letter No.107/GA dated 15.4.2005 and till date, no orders have been passed by the Government. As per terms and conditions of
lease deed, there is no provision to obtain permission from the State Government nor there is any provision under the Municipal Corporation Act, 1956
and Rules made there-under yet the Mayor-in-Council, which granted permission for mutation subject to permission of State Government. If the
transfer of lease hold rights has not been approved by the government till date, at this stage it can not be alleged that either loss has been caused to the
IMC or the petitioner has committed any offence.
30. The lease given to lessee No.2 was for a particular period, and being transferable, lessee No.2 before expiry of such period of lease was
competent and was justified also in transferring its lease hold rights and also receive consideration as may be agreed and there was no question of
causing loss to any one including State or IMC. The Corporation in any case was not entitled to claim or get the money agreed between lessee and the
transferee.
31. Even if it is presumed that lessee No.2 was not entitled to transfer it leasehold rights, even then no loss can besaid to have been caused to IMC
because in such case, IMC at the most would have been entitled to terminate the lease and recover possession.
32. The very opening sentence of charge No. 1 and 2, covering a period of more than two decades commencing from the year 1990-91 to 05/08/2010
should have been end enough indication to put any prudent judicious mind on guard if, a criminal conspiracy could have stretched, extended and
continued for such inordinately long time. The Learned Special Judge, has enumerated violations of the provisions of Sec. 80 (5) (ii), Sec. 25-A of the
M.P. Corporation Act, 1956 (for short ‘Corporation Act’) r/w/ Rule 7 of M.P. Nagar Palika Nigam (Achal Sampatti Ka Antaran) Niyam, 1994
for alleged violation of which the petitioner has been held responsible in Chapter No. 1, as dealt with in paragraphs
19 and 20 of the impugned order. If this was the illegal agreement and unlawfulness, of the criminal conspiracy is alleged, the petitioner urged that the
learned trial judge was erroneously interpreted the aforesaid provisions and arriving at the conclusion as he did. This Court in the case of Municipal
Corporation Satna V/s. Badri Prasad and Other reported in 2001 (4) M.P.H.T. 387, followed in another judgment passed by this Court in the matter of
Municipal Corporation, Bhopal V/s. Mohd. Yunus, reported in 2009 (1) M.P.L.J. 282, had categorically held that the Municipal Corporation can
convey any immovable property belonging to it without any sanction of the State Government.
33. In the Charge, it has been alleged that the Petitioner was a public servant, however, at the time of filling of charge sheet and taking cognizance, he
had ceased to be public servant and hence sanction under section 19 of P.C. Act is not required. However, since there is invocation of section 120 B
IPC and other IPC offences, the requirement of sanction under section 197 Cr.P.C. was mandatory as has been held by the Hon’ble Supreme
Court in the judgement N.K. Gangully Vs CBI reported in (2016) 2 SCC 143
34. Learned Senior counsel for the petitioner submits that, none of the elements of a criminal conspiracy, namely:(a) an object to be accomplished, (b)
a plan or scheme embodying means to accomplish that object, (c) an agreement or understanding between two or more of the accused persons
whereby they become definitely committed to cooperate for the accomplishment of the object by the means embodied in the agreement, or by any
effectual means are made out. It must necessarily be considered in the backdrop of Section 10 of the Indian Evidence Act.
35. Section 25A of Municipal Corporation Act, 1956 reads as under :-
Section 25-A. Duties of the Councillors.-
Subject to the provisions of the Act, every Councillor shall have the following duties:-
(i) to be present and take part in the meetings of the Corporation and on requirement give vote in his discrection in favour or against, on the matters
included in the agenda.
(ii) to draw the attention of the Commissioner or the head of the departments concerned, towards any loss to the Corporation property or any short
comings in any scheme or service or any work being executed by the Corporation.
36. As per Section 25A-(ii) of the Corporation Act, failure in performing the duties as prescribed in Sub- Section (i) & (ii) are not an offence under the
provision of Law.
37. It is submitted that Section 25-A of 1956 Act, firstly came into force w.e.f. 25/08/2003, hence, no person can be held liable nor can be prosecuted
for such acts, which have occurred prior to coming into force of the statutory provisions.
38. In 1994, the petitioner was not even a Councillor of Municipal Corporation, Indore, therefore, for the acts which were committed before becoming
the petitioner a Councillor of the Municipal Corporation , Indore and before coming into force of the statutory provisions of Section 25-A petitioner can
not be prosecuted for the alleged offences even with the help of aforesaid provisions of Sec. 25-A.
39. From the provisions of Sec. 25-A of the Act of 1956, it is clear that no such statutory duty was casted upon any councillor including the Petitioner
prior to 25.8.03. Secondly, the aforesaid provisions merely provided to draw attention of the Commissioner or Head of the Department concerned if
any loss or shortcoming comes to the knowledge of the Councillor and is believed by him that there is any loss or shortcoming to the Corporation. In
this Section or otherwise no Councillor has any legal authority to take any action against any person or employee on behalf of the Corporation.
Admittedly, the petitioner could not have been aware of what has happened prior to his becoming a Councillor Similararly, it is not necessary and
rather impossible for any Councillor to have knowledge of each and every act or affair of the Corporation all councillors shall be equally bound to have
such knowledge and shall be responsible and thus how a single Councillor can be targeted or prosecuted.
40. Learned Senior counsel further submitted that, there is absolutely no evidence or material on record to establish any connection or involvement of
the Petitioner, so far as granting building permission, renewal and determination of lease rent are concerned. Similarly, there is absolutely no material
or evidence on record to connect the petitioner with regard to any collusion for non â€" availability of notesheet No. 7. A bare perusal of the Note-
Sheet No. 7 would also establish that there was not order or requirement to obtain any legal opinion. The direction was given by the then Municipal
Commissioner Shri Sanjay Shukla to Mr. Jagdish Dagaonkar to himself examine the legal position and to take action at his level only. It is submitted
that there was no ground made out to frame charges and prayed for setting aside the impugned order.
41. Shri Anand Soni, learned counsel for the SPE (Lokayukt) has supported the order dated 25.5.2016, by which charge has been framed against all of
them and submitted that the then partners / Directors of lessee No.2 hatched the conspiracy with the erring officers of Indore Municipal Corporation
for getting the lease rent calculated on lower side as a result of which loss to the tune of Rs.12,49,620/- has been caused to the Indore Municipal
Corporation. The lessee No.2 has deposited the lease rent to the tune of Rs.1,19,020/- in place of Rs.13,68,640/- because as per Collector’s
guideline at the relevant point of time in the year 1990-91 Rs.40/- per sq.ft was required to be charged as lease rent meaning thereby that on the
disputed land measuring 131600 sq.ft the lease rent of Rs.13,68,640 was required to be deposited as lease rent of 13 years. In respect of transfer of
lease hold right, his arguments was that, there was no condition in lease deed in respect of sale of lease hold right. The partners / directors of lessee
No.2 were known well to the fact that lease hold rights cannot be sold, but inspite of that they have transferred the lease hold right by executing sale
deed in favour of lessee No.3. He also submitted that for the selling of lease hold right permission of the State Government was required. To support
the aforesaid he has drawn our attention to Section 80 (5) (2) of the Corporation Act, 1956 and submitted that, without permission of the State
Government lease hold rights of the property vested in the Municipal Corporation cannot be transferred or sold. In respect of conspiracy he has drawn
our attention to the decision of the Apex court in the case E.K. Chandrasenan V/s. State of Kerala reported as AIR 1995 SC 106 6and State of Tamil
Nadu V/s. J. Jailalita reported as Crime 2000 (2) Pg.
292 wherein, it has been held that for the proof of conspiracy, there can never be direct evidence since the conspiracies are always secretly planned
and in the later judgment, it has been held that, at the stage of framing charge the court can presume that, there are reasonable ground to believe the
accused was involved in the conspiracy as envisaged in Section 10 of the Evidence Act. Exercise at stage of discharge must be confined to
considering police report and documents annexed with the charge-sheet. He has also drawn our attention to the decision of the Apex court in the case
of State of U.P. V/s. Udainarayan & Anr. Reported as AIR 1999 SC 3845 wherein it has been held that in the matter of quashment of charge framed
against the accused elaborate arguments on scanning and scrutinizing the evidence is not required and submitted that there was no prima facie case
against the petitioners to quash the charges framed against them and prayed for dismissal of all these revisions and misc. criminal case filed under
Section 482 of Cr.P.C.
42. We have heard the learned counsel for the parties and perused the record.
43. Section 80 of Municipal Corporation Act, 1956 reads as under :-
“Provisions governing the disposal of municipal property or property vesting in or under the management of Corporation : -
(1) No streets, land, public places, drains or irrigation channels shall be sold, leased or otherwise alienated, save in accordance with such rules as may
be made in this behalf.-
(2) Subject to the provisions of sub-section (1)-
(a) the Commissioner may, in his discretion, grant a lease of any immovable property belonging to the Corporation, including any right of fishing or of
gathering and taking fruits, flowers and then like, of which the premium or rent, or both, as the case may be, does not exceed two hundred and fifty
rupees for any period not exceeding twelve months at a time:
Provided that every such lease granted by the Commissioner, other than the lease of the class in respect of which the Mayor-in-Council has by
resolution exempted the Commissioner from compliance with the requirements of this proviso, shall be reported by him to the Mayor-in-Council within
fifteen days after the same has been granted.
b) with the sanction of the Mayor-in-Council, the Commissioner may, by sale or otherwise grant a lease of immovable property including any such
right as aforesaid for any period not exceeding three years at a time of which the premium , or rent, or both, as the case may be, for any one year
does not exceed one thousand five hundred rupees;
(c) with the sanction of the Corporation the Commissioner may lease, sell or otherwise convey any immovable property belonging to the Corporation.
(3) The Commissioner may-
(a) in his discretion dispose of by sale, letting out on hire or otherwise any movable property belonging to the Corporation not exceeding five hundred
rupees in value;
(b) with the sanction of Mayor-in-Council dispose of by sale, letting out on hire, or otherwise any immovableproperty belonging to the Corporation not
exceeding five thousand rupees in value;
(c) with the sanction of the Corporation, sell, out on hire or otherwise convey any movable property belonging to the Corporation.
(4) The sanction of Mayor-in-Council or of the Corporation under sub-section (2) or sub-section
(3) may be given either generally for any class of cases or specially in any particular case.
(5) The foregoing provisions of this section shall apply to every disposal of property belonging to the Corporation made under, or for the purposes of
this Act:
Provided that -
(i) no property vesting in the Corporation in trust shall be leased, sold or otherwise conveyed in a manner that is likely to prejudicially effect the
purpose of the trust subject to which such property is held;
(ii) no land value of which may be prescribed shall be sold or otherwise conveyed without the previous sanction of the State Government and every
sale or other conveyance of property vesting in the Council shall be deemed to be subject to the conditions and limitations imposed by this Act or by
any other enactment for then time being inforce.â€
44. Rule 3 of M.P. Nagar Palika Nigam (Achal Sampatti Ka Antaran) Niyam, 1994 is relevant which reads as under :-
“ 3. No immovable property which yields or is capable of yielding an income shall be transferred by sale, or otherwise conveyed except to the
highest bidder at a public auction or by inviting offer in a sealed cover:
Provided that if the Corporation is of the opinion that it is not desirable to hold a public auction or to invite offers in sealed covers the Corporation may,
with the previous sanction of the State Government, effect such transfer without public auction or inviting offers in sealed covers :
Provided further that the Corporation may with the previous sanction of the State Government and for the reasons to be recorded in writing, transfer
any immovable property to a bidder other than the highest bidder:
Provided also that for any such transfer by lease a reasonable premium shall be payable at the time of granting the lease and annual rent shall also be
payable in addition during the total period of the lease.â€
45. Section 80 (5) of the Corporation Act and Rule 3 of M.P. Nagar Palika Nigam (Achal Sampati Ka Antaran) Niyam, 1994, applies in the cases
where the sale/ transfer is to be made by the Municipal Corporation. The aforesaid provisions have no application to transfer by a private owner or
lessee of his lease hold rights to other private person. Even if a transfer of leasehold rights by a lessee of the Corporation to any third person is
contrary to the terms of the lease, it is always open to the Corporation to cancel the lease and to recover the possession. By no stretch of imagination,
it can even be presumed that for getting transferred leasehold right from original lessee if he is paying any amount to the original lessee, the same can
be a loss to the Corporation. A transferee of a leasehold rights from the original lessee if applying for mutation, there is no illegality of the same can
amount to an offence because it is for the lessor (Municipal Corporation) either to accept the mutation or to refuse the mutation.
46. This court in the case of Municipal Corporation, Satna, Vs. Badri Prasad & Ors. reported as 2001 (4) MPHT 387 has held that it is not necessary
to obtain sanction of State Government in respect for which lease is created. Para 7 to 12 are relevant which reads as under :-
7. Thereupon, the appellant-Municipal Corporation, Satna, has filed this appeal which was admitted by order of this Court dated 22-4-1991, on the
following substantial question of law :--
“Whether, in the facts and circumstances of the case, the mandatory provisions contained in Section 80 (5) of the M.P. Municipal Corporation Act,
1956 gives jurisdiction to the State Govt. to reject the tender offered by the plaintiff and to order fresh auction ?â€
8. Section 80of the Municipal Corporation Act, 1956 (henceforth ‘the Act’) reads as follows :-
“80. Provisions governing the disposal of Municipal property vesting in or under the management of Corporation.-
(1) No streets, nazul lands public places, drains or irrigation channels shall be sold, leased or otherwise alienated, save in accordance with such bye-
laws as may be made in this behalf.
(2) Subject to the provisions of Sub-section (I)-
(a) the Commissioner may, in his discretion grant a lease of any immovable properly belonging to the Corporation, including any right of fishing or of
gathering and taking fruit, flowers and the like, of which the premium or rent, or both, as the case may be, does not exceed five hundred rupees for
any period and exceeding twelve months at a time :
Provided that every such lease granted by the Commissioner, other than the lease of the class in respect of which Standing Committee has by
resolution exempted the Commissioner from compliance with the requirements of this proviso, shall be reported by him to the Standing Committee
within 15 days after the same has been granted;
(b) with the sanction of the Standing Committee, the Commissioner may by sale or otherwise grant a lease of immovable property including any such
right as aforesaid, for any period not exceeding three years at a time of which the premium or rent or both, as the case may be, for any one year does
not exceed three thousand rupees;
(c) with the sanction of the Corporation the Commissioner may lease, sell or otherwise convey any immovable property belonging to the Corporation.
The Commissioner may-
(a) in his discretion dispose of by sale, letting out on hire or otherwise, any movable property belonging to the Corporation not exceeding five hundred
rupees in value;
(b) with the sanction of Standing Committee, dispose of by sale, letting out on hire, or otherwise any movable property belonging to the Corporation not
exceeding five thousand rupees in value;
(c) with the sanction of the Corporation sell, let out on hire or otherwise convey any movable property belonging to the Corporation.
(4) The sanction of the Standing Committee or of the Corporation under Sub-section (2) or Sub-section (3) may be given either generally for any class
of cases or specifically in any particular case.(5) The foregoing provisions of this section shall apply to ever)’ disposal of property belonging to the
Corporation made under or for the purpose of this Act:
Provided that-
(i) no property vesting in the Corporation in trust shall be leased, sold or otherwise conveyed in a manner that is likely to prejudicially affect the
purpose of the trust subject to which each property is held;(ii) no land exceeding twenty-five thousand rupees in value shall be sold or otherwise
conveyed without the previous sanction of the Government and every sale, or other conveyance of property vesting in the Corporation shall be
deemed to be subject to the conditions and limitations imposed by this Act or by any other enactment for the time being in force.†However, we are
concerned in this appeal with interpretation of Section 80 (5) of the Act.
9. It has been argued on behalf of the appellant that the proviso (ii) to Sub-section (5) of Section 80 of the Act provided that no land exceeding Rs.
25,000/- in value could be sold or otherwise conveyed without the sanction of the State Government and, therefore, the order of the State Government
dated 17-7-1984 refusing sanction to the auction held in favour of the respondent No. 1 was valid. The Lower Appellate Court was not right in coming
to the conclusion otherwise and on this short point this appeal deserves to be allowed.
10. As against this, the learned counsel for the respondent No. 1 argued that the said proviso (ii) to Section 80 (5) of the Act would not be applicable
to the facts of this case for the reason that there is no prohibition of leasing out the property without sanction of the State Government. The said
proviso is limited to selling of property or otherwise creating its conveyance, that is to say, it relates to absolute transfer and not a transfer by way of
lease which is partial transfer of the property in the eyes of law. It has been urged that this inference can be drawn from the proviso (i) to Sub-section
(5) of Section 80 of the Act wherein its has been said that no property vesting in the Corporation in trust shall be leased, sold or otherwise conveyed.
The word ‘leased’ in proviso (ii) has been deliberately omitted by the Legislature in order to make a distinction that the proviso (ii) to Sub-
section (5) of Section 80 of the Act is limited to conveyance which means absolute transfer of the property.
11. It appears to this Court that Section 80 of the Act is of inexhaustive section and deals with the disposal of the Municipal properly which is vested
in it or which is under its management. The section makes a distinction between two kinds of property. However, the section is not very happily
worded and, there are certain overlapping provisions. Sub-section (1) of Section 80 of the Act deals with streets, lands, public places, drains and
irrigation channels and restricts the right of the Municipal Corporation to sell, lease or otherwise alienate the suit property subject to bye-laws and
subject to Sub-sections (2), (3) and (4) of Section 80 of the Act. Then Sub-section (5) says that the aforesaid provisions shall apply to every disposal
of the properly belonging to the Municipal Corporation made under or for the purpose of the Act, subject to aforesaid two provisos. The plain meaning
of main part of Sub-section (5) of Section 80 of the Act is that every properly belonging to the Municipal Corporation shall be sold, leased or otherwise
alienated subject to Sub-sections (1), (2), (3) and (4) of Section 80 of the Act and also in accordance with bye-laws framed by the Municipal
Corporation. In this case, it is not in dispute nor any substantial question of law has been framed to the effect that while leasing out the property, if
there was any violation of any of the provisions of Subsection (1), (2), (3) or (4) of Section 80of the Act; or of any bye-law framed by the Municipal
Corporation. It is not disputed that the auction in favour of the respondent No. 1 was validly done but it had to be cancelled subsequently on account of
the fact that the State Government did not grant the sanction. It appears to this Court that the proviso (ii) restricts the powers of the Municipal
Corporation to sell or otherwise convey the property if it exceeds Rs. 25,000/-, unless the State Government accords its sanction. Such a restrictive
provision has to be strictly construed. In the proviso (ii) the word ‘leased’ has 5een omitted whereas in proviso (I) the word ‘leased’ has
been specifically used. Similarly, in Sub-section (1) of Section 80 of the Act the word ‘leased’ has been used alongwith the word
‘alienated’ to make it more comprehensive, saying that the property could be leased, sold or otherwise alienated subject to Sub-sections (2) and
(3) and also subject to bye-laws framed by the Municipal Corporation. Then the question arises why the Legislature did not use the same words in
proviso (ii) to Sub-section (5) of Section 80 of the Act. It appears to this Court that this must have been done on purpose because the proviso (ii) to
Sub-section (5) of Section 80 of the Act only applied to sale or otherwise conveyance whereby the property is absolutely transferred, and not to lease
which is only a partial transfer of an interest in the property for a period given in the lease-deed, or in the agreement to lease. Such a lease is liable to
be terminated on conditions mentioned in the lease-deed or by efflux of time. The legislature among other things, expressly restricted the grant of a
lease stating in so many words that the properly vesting in trust in Municipal Corporation cannot be leased in a manner which would adversely affect
the purpose of trust. Obviously, this proviso is applicable to that property which are vested in the Corporation and its capacity is that of a statutory
trustee. The proviso (ii) to Sub-section 5 of Section 80 of the Act, however, deals with these cases where the Municipal Corporation seeks to sell or
otherwise convey the property worth more than Rs.25,000/-. Sale is absolute transfer. The words ‘otherwise convey’ are used in the same
sense implying the transfer absolutely by modes other than sale. The words ‘sale or conveyance’ used in the aforesaid proviso can be said to he
‘a term of art’. They have specific and established meaning. It is clear that the Legislature deliberately omitted the word ‘lease’ implying
thereby that proviso (ii) to Sub-section (5) of Section 80 of the Act would not apply to a lease. Consequently, the argument of the learned counsel for
the respondent No. 1 is accepted and it is held that it is not necessary to obtain sanction of State Government in respect of property for which lease is
created. The restriction is limited to sale or absolute transfer of the property by any other mode known to law where value of the concerned property
exceeds Rs. 25,000/-.
12. For the reasons aforesaid, the substantial question framed by this Court is decided against the appellant and in favour of the respondent No. 1. The
appeal fails and it is hereby dismissed accordingly. No costs.â€
47 . In 2009 again the same view has been taken in the case of M.P. Municipal Corporation, Bhopal V/s. Mohd. Yunus, reported as [2009 (1) MPLJ
282. Relevant paras reads as under :-
“Indisputably, section 80 makes a provision governing the disposal of municipal property or property vesting in or under the management of
Corporation. Sub-section (1) of Section 80 stipulates that no streets, lands public places, drains or irrigation channels shall be sold, leased or otherwise
alienated save in accordance with such rules, as may be in this behalf. Clause (c) of sub-section (2) provides that with the sanction of the Corporation
the Commissioner may sell, lease or otherwise convey any movable property belonging to the Corporation.
Furthermore sub-section (5) of Section 80 stipulates :
“(5) The foregoing provisions of this section shall apply to every disposal of property belonging to the Corporation made under, or for the purposes
of this Act:
Provided that -
(i) no property vesting in the Corporation in trust shall be leased, sold or otherwise conveyed in a manner that is likely to prejudicially effect the
purpose of the trust subject to which such property is held;
(ii) no land value of which may be prescribed shall be sold or otherwise conveyed without the previous sanction of the State Government and every
sale or other conveyance of property vesting in the Council shall be deemed to be subject to the conditions and limitations imposed by this Act or by
any other enactment for then time being inforce.
12. This court while interpreting the aforesaid subsection (5) of Section 80 in the case of Municipal Corporation, Satna, Vs. Badri Prasad & Ors.
(supra) in para 11 observed :-
11. It appears to this court that Section 80 of the Act is of inexhaustive section and deals with the disposal of the Municipal property which is vested in
it or which is under its management. The section makes a distinction between two kinds of property. However, the section is not very happily worded
and, there are certain overlapping provisions. Sub-section (1) of section 80 of the Act deals with streets, lands, public places, drains and irrigation
channels and restricts the right of the Municipal Corporation to sell, lease or otherwise alienate the suit property subject to bye -laws and subject to
Sub-sections (2), (3) and (4) of Section 80 of the Act. Then Sub-section (5) says that the aforesaid provisions shall apply to every disposal of the
properly belonging to the Municipal Corporation made under or for the purpose of the Act, subject to aforesaid two provisos. The plain meaning of
main part of Sub-section (5) of Section 80 of the Act is that every properly belonging to the Municipal Corporation shall be sold, leased or otherwise
alienated subject to Subsections (1), (2), (3) and (4) of Section 80 of the Act and also in accordance with bye-laws framed by the Municipal
Corporation. In this case, it is not in dispute nor any substantial question of law has been framed to the effect that while leasing out the property, if
there was any violation of any of the provisions of Sub-section (1), (2), (3) or (4) of Section 80of the Act; or of any bye-law framed by the Municipal
Corporation. It is not disputed that the auction in favour of the respondent No. 1 was validly done but it had to be cancelled subsequently on account of
the fact that the State Government did not grant the sanction. It appears to this Court that the proviso (ii) restricts the powers of the Municipal
Corporation to sell or otherwise convey the property if it exceeds Rs. 25,000/-, unless the State Government accords its sanction. Such a restrictive
provision has to be strictly construed.
13. Thus, in the considered opinion of this court, and having regard to the provisions contained under section 80, there is no statutory embargo for the
Municipal Corporation to convey any immovable property belonging to the Corporation and for that no prior sanction is required from the State
Government. Even the first proviso to Rule 3 of Rules of 1994 empowers the Corporation to effect transfer without public auction or inviting offers in
sealed covers. The stand therefore, taken by the petitioner/Corporation that there is statutory bar for creating permanent lease in favour of the
respondent/decree-holder is misconceived and contrary to the provisions as laid down under section 80 and the rules made thereunder.â€
48. The first charge against all the accused persons is in violation of Section 80 (5) (ii) of the Municipal Corporation Act, 1956 read with Rule 3 of
M.P. Nagar Palika Nigam (Achal Sampatti Ka Antaran) Niyam, 1994. The contention of the learned counsel for the parties of lessee No.2 firm is that
they had only transferred the lease hold rights to the lessee No.3 (Nanda Nagar Sahakari Sakh Sanstha Maryadit, Indore). There is no prohibition in
the compromise decree dated 13.11.2000, order of the State Govt. dated 18.11.2000 and lease deed dated 12.1.1981 for transfer of lease hold rights.
Similarly Rule 3 of Rules of 1994 is for a fresh lease as held by this court in the case of Minicipal Corporation. Satna V/s. Badri Prasad and Other
(supra) and Municipal Corporation, Bhopal V/s. Mohd. Yunus (supra).
49. In respect of Section 25(A)(ii) of the Act, the contention of the directors/parties of lessee No.2 that the same will not applicable to them as none
of them were councilllor of the Municipal Corporation.
50. In respect of framing of the charges under Section 13(1) (d) and Section 13 (2) of P.C. Act and Section 120B, IPC, their contention is that from
the documents, which are the part of the charge-sheet do not show any involvement in the alleged offence. There is no provision, which stipulates that
a prior permission from the State Government is necessary in the matter of mutation or transfer of lease hold right and in absence of any statutory
provision, the circular of the State Government cannot be resorted to substantiate criminal charges. Even otherwise, the State Government has also
deleted the stipulations regarding prior permission as stipulated and as such the State Government itself has realized that there is no statutory
requirement in the said context. The allegations regarding that no prior permission was sought in the charge sheet in context to lease rent, mutation and
transfer of lease hold right do not have any force. As per Corporation Act, the State Government has no role to play in the affairs of Municipal
Corporation if not specifically mentioned in the Act.
51. In the instant case, the transfer in question was not a fresh allotment but a case of transfer of lease hold rights, which is permissible and
specifically in absence of any prohibition to transfer the lease hold right has detailed in decree dated 13.11.1980, the aforesaid rights were validly
transferred.
52. Insofar as, loss of revenue of Rs.1.38 crores (value of transfer to lease hold rights) to the State Ex-chequer is concerned, none of the provisions of
the Corporation Act, and M.P. Nagar Palika Nigam (Achal Sampati Ka Antaran Niyam, 1994 or the Transfer of Property Act, 1882, provides for
deposit of Rs.1.38 Crores to the State Ex â€" chequer.
53. In respect of lease rent, the civil court decree dated 13.11.1980, and the lease deed dated 12.1.1981 (Clause d) categorically provide for lease rent
from 30.11.1986 to 12.11.2010 and lessee No.2 have deposit amount of 1.19 lacs towards lease rent far in excess of the decree lease rent amount as
concluded by the civil Court. M.P. Nagar Palika Nigam (Achal Sampatti Ka Antaran) Niyam, 1994 or the Transfer of Property Act, 1882 provides for
deposit of Rs.1.38 crores to the State Ex-chequer.
54. In respect of lease rent, the civil court decree dated 13.11.1980, and the lease deed dated 12.1.1981 (Clause d) categorically provide for lease rent
from 30.11.1986 to 12.11.2010 and lessee No.2 have deposit amount of 1.19 lacs towards lease rent far in excess of the decree lease rent amount as
concluded by the civil Court.
55. The learned trial court has committed an error of law in not considering that lessee No.3 (Nanda Nagar Sakh Sahakari Maryadit) had merely
purchased the leasehold rights and not the ownership rights. The said society is having a membership of about 25,000 members. If by purchase of
leasehold rights any benefit is accrued, the same is accrued to the said society and not to the petitioner Thus, so far as the petitioner is is personally
concerned, it is neither alleged nor can be presumed that he has obtained any illegal benefit, much less for Municipal Corporation.
56. As per charge sheet, no offence is made out against the petitioner much less a strong suspicion for having committed any offence, even if the
entire charge- sheet with its material are taken on its face value. The present case is a case of no evidence against the Petitioner and he has been
implicated in the case of basis of surmises and conjectures.
57. The Learned Special Judge acted in excess its jurisdiction in framing the charges under section 13 (1) (d) read with section 13 (2) of Act of 1988.
The charge of misuse of official position of Corporator and Member, Mayor in Council is absolutely wrong and without any substance. There is
nothing on record or any other material, which has any connection with the petitioner from the said charge. The Petitioner happened to the President
of lessee No.3 (Nandanagar Society) and according to the objects and purposes of the society and on the strength of resolution of the members of
Society of Petitioner entered into an agreement for transfer of lease hold rights. He applied for mutation on behalf of the society on the basis of
agreement and the said mutation has not been approved till date the Society has not been leased the said land, therefore, there is no question of any
loss or use of official position, when the action alleged to be not in consonance with law as per prosecution, is yet not taken. The Court absolutely did
not apply its mind on this aspect and merely assumed a loss to Municipal Corporation whereas the loss if any (not admitted) would have accrued when
the land in question would have been leased to society.
58. There is nothing in the evidence that any special accommodation was given to the lesse No.3 (society) or lessee No.2 which could lead to any
adverse inference of conspiracy or involvement of the Petitioner to obtain alleged illegal permission. Moreover, without any evidence to connect the
transfer (assuming for arguments sake that it was illegal or unauthorized ) with any overt act or intention on the part of the Petitioner no offence can
be made out against the Petitioner.
59. In the case in hand, the land was given on lease for pottery industry in 1944 and in 1990 after statutory permission, landowner constructed
residential block over part of the area, (10000 Sq. ft.) without order of diversion whereas as per Indore Master Plan, the use of the land was changed
from Industrial to Residential, no permission is required for such diversion nor there was any contravention of provision of Section 172 of the M.P.
Land Revenue Code.
60. It is useful to refer to judgment of this court in the case of J.M. Pendse Advocate V/s. Chandra Gopal Pyaralal Mahajan, reported in 1972 Cri.L.J.
1207, where scope of public servant has been considered and explained. Para 14 is as follows :-
“14. It is thus seen that if the accused is a President or Vice-President, he can be removed by the State Government and otherwise also but if he is
a Councillor, he can be removed only by the State Government. Sanction, therefore, would be necessary for his being a Councillor. There has been no
dispute that the councillor is public servant as defined under the Municipalities Act. Section 352 of the Act says that every councillor is a public
servant within the meaning of section 21 of the IPC, I, therefore, respectfully agree with the view expressed in AIR 1964 Raj 174 and AIR 1961 Guj
57 and hold that the councillor is a public servant and can be removed only by the State Government. The President being a councillor can be removed
from his presidentship otherwise but not from his concillorship except by the State Government. Any complaint therefore, against him in the discharge
of his duties as a public servant (about which there has been no dispute) would require sanction under Section 197 of the Code of Criminal Procedure.
It is true that we may conceive of a person becoming President without being a councillor but that is not the position here. If the accused was merely
a President sanction might not have been necessary but the present case, cannot go on against the accused. Under these circumstances, the sanction
would be necessary under Section 197 of Cr.P.C. the result is the revision petition is dismissed.â€
61. As per Section 10 of the Transfer of Property Act, 1882 and terms and conditions of the lease deed dated 12.1.1981, there is no prohibition,
restraining the lessee to transfer the lease hold rights nor there is any condition in the lease deed to the fact that the lessee may transfer the lease hold
rights interest with the written permission of the Municipal Corporation, the sale deed between lessee No.2 and lessee No.3 transfer of lease hold
rights to the lessee No.3, then the lessee No.3 in absence of the evidence that the content of documents were having prohibition against assignment or
transfer the right of repurchase cannot be treated as personal.
62. The scope of interference and exercise of jurisdiction under Section 392 and 482 of Cr.P.C., 1973 is well settled. At the stage of framing of a
charge, the court is concerned not with the proof of the allegation rather it has to focus on the material and form an opinion whether there is strong
suspicion that the accused has committed offence which if put to trial, could prove his guilt. The framing of charge is not a stage, at which stage final
test of guilt is to be applied. The object of Section 397 of Cr.P.C., 1973, is to set right a patent defect or an error of jurisdiction or law or the
perversity, which is crept in the proceeding. There has to be a well founded error and it may not be appropriate for the court to scrutinize, the orders,
which upon the face of it bears a token of careful consideration and appear to be in accordance with law. The revisional jurisdiction can be invoked
where the decisions under challenge are grossly erroneous, there is no compliance with the provisions of law, the finding recorded is based on no
evidence, material evidence is ignored or judicial discretion is exercised arbitrarily or perversely.
63. There are no limits of the power of the court under Section 482 of the Code but the more power, the more care and due caution is to be exercised
in invoking these powers. The power of quashing criminal proceedings particularly, the charge framed in terms of Section 228 of the Code should be
exercised very sparingly and with circumspection and that too in the rarest of rare cases. No meticulous examination of the evidence is needed for
considering whether the case would end in conviction or not at the stage of framing of charge or quashing of charge.
64. On due consideration of the provisions of Section 25-A, Section 80 (5) (ii) of Corporation Act and Rule 3 M.P. Nagar Palika Nigam (Achal
Sampatti Ka Antaran) Niyam, 1994, so also the terms and conditions with the lease deed and permission granted by the Municipal Corporation from
time to time, we are of the view that there is no strong suspicion that petitioner has committed an offence, which if he put to trial could prove his guilt.
65. For the above mentioned reasons, we are of the considered opinion that the trial court erred in law in framing the charges by the impugned order
dated 25.5.2016. In the result, Criminal Revision No.1011/2016, is hereby allowed. The impugned order passed by the learned Special Judge, Indore in
Special Case No.5/2013 is set aside.
66. For the aforesaid reasons, we pass separate order in other connected matters and decide all other connected matters accordingly. However, no
costs.
67. A copy of this order be kept in other connected matters.
9. In view of the undisputed parity of the case of the present petitioner with the case of the co-accused persons, the order passed by this Court applies
mutatis mutandis to the case of the present petitioner, therefore, the present petition is also allowed. The impugned order dated 25.5.2016 as well as
charges framed against the petitioner are hereby set-aside. The petitioner is discharged from all the charges. His bail bond stands discharged.
10. With the aforesaid, the petition stands allowed and disposed off.
