IMPORTANT POINT
If transferor transfers land to other person, then all rights qua property stand transferred unless it is expressly or impliedly provided otherwise.

JUDGMENT

In Crl R No.26/2021, the petitioner-UT of J&K has impugned the order dated 27.03.2021 passed by the court of learned Special Judge Anti-Corruption, Udhampur (hereinafter to be referred as the “trial court”) in case, titled, “State of J&K Vs. Kunal Sharma and others” arising out of FIR No.12/2011 registered with Police Station, Vigilance Organization, Jammu, whereby the respondent-Kunal Sharma has been discharged in respect of the allegations levelled against him for the commission of the offences under Section 5(1)(d) read with Section 5(2) of J&K Prevention of Corruption Act, 2006 and Section 120-B RPC.

2. In other connected petitions, the petitioners are Hukam Chand (Girdawar), Om Parkash (Patwari) and Swarn Salaria and they have assailed the same order whereby they have been charged for the commission of offences under Section 5(1) (d) read with Section 5(2) of J&K Prevention of Corruption Act, 2006 and Section 120-B RPC.

3. In the criminal revision petition filed by the petitioner-UT of J&K, the order has been impugned on the ground that the learned trial court has failed to consider the material placed on record by the Investigating Officer in the shape of report submitted by the Naib-Tehsildar to the respondent No. 1 and the inter se communications between the Naib-Tehsildar (now dead) and the respondent No. 1.

4. In the petitions filed by Hukam Chand (Girdawar), Om Parkash (Patwari) and Swarn Salaria, the order impugned has been assailed on the ground that the attorney of petitioner-Swarn Salaria had sought permission for the sale of land only and not for the structure, as the owner of immovable property can sell the land and retain the structure existing on the sold land with himself.

5. Ms. Monika Kohli, learned senior AAG vehemently argued that in view of the inter se communication between the respondent No. 1 and the Naib-Tehsildar-Rattan Singh, it is evident that the hotel was existing on the land regarding which the revenue extract (Fard Intikhab) was issued without mentioning the super structure in the form of “Hotel White” existing on the same. She further submitted that the respondent No. 1 counter signed the said revenue extract without satisfying himself with regard to the existence of any building over it.

6. Per contra, Mr. R. P. Sapolia, learned counsel for the respondent-Kunal Sharma vehemently argued that the revenue extract (Fard Intikhab) was issued pursuant to the application filed by one Vivek Sharma with Naib-Tehsildar on 28.12.2020 and the responsibility of respondent No. 1 in terms of Circular No.502/1404 dated 01.06.2005, was only to counter-sign the Fard-Intikhab and the Patwari, Girdawar and NaibTehsildar were infact vested with responsibility to ensure that the proper revenue extract was prepared by them. He further submitted that the Tehsildar was only to countersign the revenue extract and make an endorsement “valid for one month only”.

7. Mr. G. S. Thakur and Mr. Ajay Kumar, learned counsels for the petitioners namely Hukam Chand (Girdawar), Om Parkash (Patwari) vehemently argued that the vendor/co-accused-Swarn Salaria through his attorney had only sought the permission for issuance of revenue extract for the sale of the land and no permission was sought by him for the purpose of selling the super structure existing on the land, as such, the petitioners have not committed any offence.

8. Ms. Mandeep Reen, learned counsel for the petitioner-Swaran Salaria, submitted that the owner can sell the land without selling the super structure and further if there was any shortfall in the stamp duty payable by the petitioner, then the same can be recovered from the petitioner and infact the Authority under the Stamp Act has already proceeded against the petitioner for recovery of shortfall of stamp duty and the petitioner has already filed a writ petition thereby impugning the action of the said authority for recovery of deficient stamp duty from the petitioner.

9. Ms. Monika Kohli