JAMMU, Apr 15: While quashing FIR registered by the Vigilance Organization in the year 1986 against Asgar Ali, the then Assistant Custodian and former PDP MLC, High Court has said that wrong or even an illegal or perverse order cannot fall within the definition of an offence under the provisions of the Prevention of Corruption Act merely because some procedural irregularities are noticed by the court.
After hearing Advocate Abhinab Sharma appearing for Asgar Ali and Deputy AG Raman Sharma appearing for the Vigilance Organization, Justice M K Hanjura observed, “no finality is attached to an order passed by the Assistant Custodian. It can be challenged before the authority designated under the Act as has been done in the instant case. The power to be exercised by the Assistant Custodian is a power vested with him under a statute and under the colour of his office he exercises the power of a civil court. Therefore, the action of the petitioner in passing an order under Section 8 of the Act would not fall within the purview of Section 5(1)(d) of Prevention of Corruption Act”.
“An order passed by the civil court which is bad or perverse would not per-se mean that its maker can be prosecuted under the provisions of the Prevention of Corruption Act. In such a case the scheme as provided and postulated under the Act has to be followed by the aggrieved person”, Justice Hanjura said.
According to the case, one Abdul Majid, son of Abdul Aziz of Chak Mohd Yar R S Pura filed an application under Section 8 of the Evacuees’ (Administration of Property) Act, 2006, on 20.02.1981 before the then Tehsildar (Assistant Custodian), Jammu namely, Mohd. Aslam, seeking restoration of the land situated at village Deeli belonging to one Allah Ditta, son of Noor Mohd and Karamfllahi, son of Fazal Din, on the ground that he is their sole heir.
Since the application was filed after a period of 35 years approximately from the date, the evacuees had left the place, therefore, the Assistant Custodian made an endorsement on the application to that effect. However, the then Custodian proceeded ahead in the application and issued a notice inviting objections from the general public and thereafter the court recorded the statements of the witnesses produced by the applicant in support of his application seeking restoration of the land.
The application came to be dismissed for non-prosecution and was consigned to records. Subsequently, the same was restored to its original number by the then Custodian namely Meharban Singh posted as Tehsildar, Agrarian Reforms, Jammu, at that moment. In the year 1983, the petitioner came to be posted as Tehsildar (Assistant Custodian) Jammu, and the application was ripe for final determination at that juncture.
The petitioner decided the application vide order dated 25.11.1983 which directed that the land be restored in favour of the applicant namely, Abdul Majid, inasmuch as no one else had opposed the application or laid any claim over the property. The petitioner passed the order on the basis of the material available on the record. However, Vigilance Organization, Jammu registered an FIR bearing No.9 of the year 1986 for the commission of an offence under Section 5(1)(d) of the Prevention of Corruption Act alleging therein that the petitioner had hatched a criminal conspiracy with the applicant namely, Abdul Majid.