REPORTABLE IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 174 OF 2009 (Arising out of SLP [Criminal] No.3173 of 2006)

Surendra Kumar Bhatia … Appellant

Vs.

Kanhaiya Lal & Ors. … Respondents

[With Crl.A. No. 175/2009 [@ SLP [Crl.] No.6213/2006]

J U D G M E N T

R.V.RAVEENDRAN, J.

Leave granted. Heard counsel.

2. These appeals by special leave are preferred against the order dated

24.2.2006 passed by the Rajasthan High Court, allowing a petition filed by

respondents  1  and  2  herein,  under  section  482  of  the  Code  of  Criminal

Procedure  (‘the  Code’  for  short)  and  quashing  FIR  No.241  of  2005

registered at Jyoti Nagar Police Station, Jaipur, in so far as respondents 1 to

3 herein.

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3. One  Chauthmal  is  said  to  have  entered  into  an  agreement  of  sale

dated 11.8.1980 followed by an agreement dated 24.11.1988 agreeing to sell

20  bighas  of  land  in  Khasra  No.9  in  Sukhalpura  village  to  Shiva  Co-

operative Housing Society Ltd. (for short ‘Society’).  The said agreement is

said to have confirmed (i) that payment of the entire price of 20 bighas of

land was made by the society to Chauthmal; (ii) that possession of the land

agreed to be sold was delivered to the society; and (iii) that out of 20 bighas

agreed to be sold, 5 bighas of land stood in the name of other persons and

Chauthmal would ensure that an agreement was executed by them also in

favour of the society in regard to that extent.  

4. Some lands  in  Sukhalpura  village,  including  31  bighas  in  Khasra

No.9,  were acquired for a housing scheme floated by Rajasthan Housing

Board (for short, ‘the Board’) under preliminary notification dated 5.4.1985

and final notification dated 16.10.1985 issued under the Land Acquisition

Act,  1894  (‘Act’  for  short).  Khasra  No.9  was  shown  as  ‘Sivaya  Chak’

(government  land)  in  the  said  notification  and  possession  thereof  was

delivered to the Housing Board on 13.6.1988.

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5. Chauthmal is said to have filed a revenue suit for a declaration that

Khasra No.9 was not government land and that he was one of the owners of

the said land and for  consequential reliefs. The said suit was decreed on

10.9.1986, and was affirmed by the Revenue Board, Ajmer.  In pursuance of

it, the following five persons were shown as owners of Khasra No.9 in the

revenue records, their share being shown in brackets : Chauthmal (15/33),

Mohanlal  (2/33),  Geeta  Devi  (2/33),  Kaushaliya  Devi  (1/33)  and

Kanhaiyalal (13/33).  

6. The State Government formulated a scheme enabling the land owners

to opt for allotment of developed land equal to 15% of  acquired land in lieu

of  the  compensation  for  the   acquired  land.   The  cases  where  the  land

owners  opt  for  such  allotment,  were  to  be  considered  by  an  Allotment

Committee, to decide upon the requests after due inquiry into title and after

ascertaining that there were no claims or court-cases.

7. The  land  owners/power  of  Attorney  holders  of  Khasra  No.9

approached the Board for such allotment. One Kailash Chand who claimed

to be the successor (legatee) of Chauthmal was one of them and he claimed

allotment  of  developed  land  in  lieu  of  15  bighas  of  acquired  land.  The

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society  also  appears  to  have  filed  an  application  before  the  Board  on

21.12.2001 claiming compensation in respect of 20 bighas in Khasra No.9

on the basis of the agreement of sale. The claim of the society was rejected

on 8.7.2002.

8. On 17.7.2002 the power of attorney holders of four owners of  Khasra

No.9 (Kailash Chand, Mohanlal, Geeta Devi and Kanhaiyalal) entered into

separate agreements  with the Housing Board, consenting for allotment of

developed  land  (15%  of  the  extent  of  the  acquired  land)  in  lieu  of

compensation.   In  the  said  agreements,  the  land  owners  asserted  and

declared  that  their  respective  shares  in  the  land  were  not  subject  to  any

encumbrance and no dispute or litigation was pending in regard to the same.

After  an  inquiry,  the  Allotment  Committee  accepted  the  request  and  a

settlement  award  dated  22.7.2002  was  passed  by  the  Special  Officer  of

Rajasthan Housing Board recording the agreement to allot 15% developed

land in lieu of compensation in respect of 28 bighas 17 Biswas in Khasra

No.9 (as the remaining 2 bighas 3 Biswas out of 31 bighas notified, was

found to be under encroachment).  Pattas were issued subsequently in regard

to such allotted land.

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9. Thereafter, the members of the society filed a complaint before the

Board  claiming  that  the  society  ought  to  have  received  the  said  15%

developed land in lieu of compensation relating to the 20 bighas of acquired

land.  Some members  of  the  society,  through  a  forum known  as  Mithila

Nagar  Suraksha & Vikas  Samiti  also  made a representation  to  the Chief

Minister  on  17.10.2005  alleging  that  the  Khatedars/power  of  attorney

holders of Khasra No.9 in collusion with the Special Officer had practiced

fraud and grabbed the valuable land from the Rajasthan Housing Board. The

Chief  Minister’s  office  appears  to  have  suggested  action  on  such

representation.   In  pursuance  of  it,  the  appellant  on  behalf  of  the  Board

lodged  an  FIR  on  7.11.2005  (at  about  9.20  p.m.),  alleging  that  the

Khatedars/Power  of  Attorney  holders  of  Khasra  No.  9  had  made  false

representations to the Board, and in collusion with the Special Officer of the

Board and office bearers of the society, had fraudulently obtained allotment

pattas in the year 2002.   

10. First respondent herein who claimed to be the owner of 13 bighas in

Khasra No.9 and respondent No. 2 herein who was his attorney holder, filed

a petition under section 482 of the Code for quashing the FIR on the ground

that  the averments  made in the FIR did not  make out  a prima facie case

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against them, even if the allegations in the FIR was taken to be true.  The

High Court by the impugned order dated 24.2.2006 allowed the said petition

and quashed the FIR insofar  as  respondents  1  and 2 as  also  the  Special

Officer of the Board on the following two grounds  :

(i) The Land Acquisition Officer, when passing an award under Section

11(2)  of  the  Act  functions  as  a  “Judge” as  defined in  Section  19  of  the

Indian  Penal  Code  (‘IPC’  for  short)  and  therefore,  is  entitled  to  the

protection of section 77 IPC.  Therefore making a settlement award by the

Special  Officer  of  the  Board  granting  developed  land  in  lieu  of

compensation to the land owners could not, under any circumstances, give

rise to an offence under the penal Code.

(ii) The allegations in the FIR did not constitute an offence of cheating or

forgery punishable under Sections 420,467,468 and 471 of IPC.

11. The said order of the High Court is challenged in these two appeals

by special leave. The first is filed by the complainant namely the Deputy

Housing Commissioner of Rajasthan Housing Board. The second is filed by

‘Mithila  Nagar  Nyay Manch’  claiming to  represent   the members  of  the

society.  On the contentions urged, two questions arise for consideration:-

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(i) Whether  the  immunity  under  Section  77  IPC  is  available  to  a

Collector/Land Acquisition Officer/Special Officer who makes an award, by

way of settlement or otherwise, under the provisions of Land Acquisition

Act, 1894.  

(ii) Whether the allegations in the FIR did not constitute an offence under

sections 420, 467,468 and 471 of IPC.

Re : Question No.(i)

12. Section 77 IPC provides that nothing is an offence which is done by a

Judge when acting judicially in the exercise of any power which is, or which

in good faith he believes to be, given to him by law. Section 19 IPC defines

a ‘Judge’ as denoting not only every person who is officially designated as a

Judge, but also every person who is empowered by law to give in any legal

proceedings, civil or criminal, a definitive judgment, or a judgment which, if

not appealed against, would be definitive, or a judgment which, if confirmed

by some other authority, would be definitive, or who is one of a body of

persons  empowered  by  law  to  give  such  a  judgment.   The  question  is

whether  the  Collector  (or  any  officer  appointed  by  the  appropriate

government  or  other  acquiring  authority)  performing  functions  assigned

under the Land Acquisition Act, can be said to be a ‘Judge’ as defined in

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section 19 IPC, that  is,  a  person empowered by law to  give a definitive

judgment in a legal proceeding and acting judicially in the exercise of such

power.

13. The  findings  of  the  High  Court  that  a  Collector/Land  Acquisition

Officer making an award under Section 11(2) of the Act is entitled to the

immunity  of  a  Judge  under  section  77  IPC,  is   based  on  the  following

reasoning :   

“Once an agreed award is passed by the competent authority and that award acquires  the  status  of  an  executable  decree  under  the  law,  the  evidence which  came before  the  competent  authority  on  the  basis  of  which  such award  is  passed,  cannot  be  subjected  to  investigation  by  the  police authorities.”  

The respondents also supported the said finding by referring to the various

provisions  of  the  Act  relating  to  the  powers  exercised  by  the  Collector

(which  term  includes  not  only  the  Collector  of  a  District  or  Deputy

Commissioner,  but  any  officer  specially  appointed  by  the  appropriate

Government to perform the functions of a Collector under the Act).  Section

9 requires the Collector to cause public notice to be given stating that the

Government  intends  to  take  possession  of  land  in  pursuance  of  the

acquisition and that claims to compensation for all  interests  in such land

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may be made to him.  Section 10 empowers the Collector  to require any

such person to make a statement containing the names of persons possessing

any interest in the land and of the nature of such interest etc.  Section 11

authorizes and requires the Collector to hold an enquiry and make an award

in regard to the true area of land, the compensation which, in his opinion

should be allowed for the land, and the apportionment of the compensation

among all the persons interested in the land.  It also provides that no award

shall  be  made  by  the  Collector  without  the  previous  approval  of  the

appropriate Government  or officer  authorized by it.   Section 12 provides

that the award so made shall be final and conclusive evidence as between

the Collector and the person interested, of the true area and value of the land

and the apportionment of the compensation among the persons interested.

Section 13 empowers the Collector to adjourn the inquiry from time to time

for any cause he deems fit. Section 13A empowers the Collector to correct

any  clerical  or  arithmetical  mistakes  in  the  award  within  six  months.

Section 14 empowers the Collector for the purpose of enquiries under the

Act,  to  summon  and  enforce  the  attendance  of  witnesses,  including  the

parties interested or any of them and to compel the production of documents

by the same means and so far as may be in the same manner, as is provided

in the case of a Civil Court only or of Civil procedure Code.  Section 15

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requires the Collector to be guided by the provisions contained in Section

23 and 24 of the Act in determining the amount of compensation. Having

regard to the said provisions, it was contended that the powers and functions

exercised by the Collector under the Act were judicial  powers of a Civil

Court in rendering definitive judgments and therefore a Collector making an

award, determining the compensation is a Judge as defined in section 19

IPC.  

14. On the other hand, the appellant contended that the Land Acquisition

Officer  merely  makes  an  offer  on  behalf  of  the  Government/Acquiring

Authority  and  does  not  discharge  any  judicial  functions.  It  was  also

submitted that the award made by the Collector does not bind the claimants,

as  they  have  the  choice  of  not  accepting  the  award  and  requiring  the

Collector  to  refer  the  matter  to  the  Civil  Court  for  determination  of  the

compensation.   The appellants  pointed out  that  while Section 26 the Act

specifically provided that the award by the ‘Judge’ (Reference Court) shall

be deemed to be a decree and the statement of the grounds of such award, a

judgment, section 11 contains no such provision in regard to the awards by

Collector.

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15. The question whether the Collector/Land Acquisition Officer while

making an enquiry and award under the Act, acts in a judicial capacity or

not,  has  been  considered  in  a  series  of  judgments.  The  well  settled

principles are :   

(a) Any inquiry as to the market value of property and determination of

the  amount  of  compensation  by  the  Collector,  is  administrative  and  not

judicial in nature, even though the Collector may have power to summon

and enforce the attendance of witnesses and production of documents. In

making an award or making a reference or serving a notice, the Collector

neither  acts  in  judicial  nor  quasi  judicial  capacity  but  purely  in  an

administrative  capacity,  exercising  statutory  powers  as  an  agent  and

representative of the Government/Acquiring Authority.  

(b) The award by a Collector is merely an offer of the amount mentioned

as compensation, on behalf of the Government/Acquiring Authority to the

person/s interested. It is neither an executable decree, nor binds the owners

or persons interested in the acquired property.  

(c) The Collector does not function as a Judicial Officer who is required

to  base  his  decision  only  on  the  material  placed  in  the  enquiry  in  the

presence  of  parties,  but  functions  as  a  valuer  who  ascertains  the  market

value on material  collected  from all  sources,  personal  inspection  and his

own knowledge and experience.  

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(See the decision of the Privy Council in Ezra vs. Secretary State -1905 (32)

Indian Appeals 93, the decision of the Patna High Court in Gokul Krishna

Banerji vs. Secretary of State – AIR 1932 Pat. 134 and the decisions of this

Court  in  Raja  Harish  Chandra Raj  Singh vs.  The  Dy.  Land  Acquisition

Officer – 1962 (1) SCR 676; M/s. Boman Behram v. State of Mysore - 1974

(2) SCC 316; Mrs. Khorshed Shapoor Chenai vs. Controller of Estate Duty

– 1980 (2) SCC 1;  Sharda Devi v. State Government of Bihar - 2003 (3)

SCC 128, and  Kiran Tandon v. Allahabad Development Authority - 2004

(10) SCC 745).

16. Only  Judges  (as  defined  in  section  19  IPC)  acting  judicially  are

entitled to the protection under Section 77 IPC. The Collector is neither a

Judge  as  defined  under  Section  19  nor  does  he  act  judicially,  when

discharging any of the functions under the Act.  Therefore he is not entitled

to the protection under Section 77 IPC.  The decision of the High Court that

the FIR is to be quashed as the subject matter of the complaint related to the

action taken by the Collector/Special Officer in his capacity as a ‘Judge’ is

opposed to law and therefore, liable to be set aside.

Re : Question No. (ii)

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17. The complaint by the members of the society was in regard to the 20

bighas of land out of Khasra No. 9 in regard to which late Chauthmal is

alleged  to  have  agreed  to  sell  to  the  society  under  agreements  dated

11.8.1980 and 24.11.1988.  The members of the society gave a complaint to

the Board claiming that the compensation payable (or 15% developed land

in lieu of compensation) in respect of the said 20 bighas of land, had to be

given  to  the  society  and  not  persons  claiming  to  be  legal  heirs  of

Chauthmal.  It was also their contention that on account of collusion among

the successor of Chauthmal and his attorney holder, the Special Officer of

the Board, and the office bearers of the society, the 15% developed land was

allotted to persons who were not entitled to allotment, thereby defrauding

the society and the Board. The respondents 1 and 2 approached the High

Court pointing out that neither the society nor the members of the society, at

any point of time had made any claim in regard to the 13 bighas in Khasra

No.9, which belonged to first respondent, that the entire  complaint related

to 20 bighas agreed to be sold by Chauthmal to the society, and that as there

was no complaint of irregularity or commission of any offence in regard to

the  13  bighas  of  land  belonging  to  the  first  respondent,  there  was  no

question of involvement of first respondent or his attorney holder (second

respondent) in any offence of cheating or forgery.  It is not in dispute that

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even the suit filed by the society, that was said to be pending at the relevant

time was against Chauthmal in regard to the 20 bighas in Khasra No.9 and

that no suit or proceeding was pending in regard to the remaining 13 bighas

claimed by the first respondent. Only in January, 2003, second respondent

and some others were impleaded in the said suit relating to 20 bighas, in

pursuance of an application filed on 14.11.2002, long after respondents 1

and 2 had executed the agreement and consent award had been made. The

High Court, therefore, rightly held that the allegations in the FIR, even if

accepted as true, did not relate to the respondents 1 and 2 but to others who

had claimed to be the owners/attorney holders  in  regard to remaining 20

bighas of land.

18. Having regard  to  the  well  settled  principles  laid  down in  State  of

Haryana v. Bhajan Lal - 1992 Suppl. (1) SCC 335; Indian Oil Corporation

v. NEPC India Ltd. - 2006 (6) SCC 736; Inder Mohan Goswami v. State of

Uttaranchal - 2007 (12) SCC 1, we are of the view that the High Court was

justified in holding that the allegations even if taken at their face value did

not prima facie constitute an offence under sections 420, 467, 468 and 471

IPC, by respondents 1 and 2.

19. The leaned counsel for the appellants next submitted that even if the

quashing of the FIR qua respondents 1 and 2 was upheld, the quashing of

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the FIR against the Special Officer of the Board was unwarranted.  While

respondents 1 and 2 were concerned only with 13 bighas which was not the

subject  matter  of  the  agreement  with  the  society,  the  FIR  specifically

alleged  collusion  between  Kailash  Chand  and the  Special  Officer  of  the

Board, in regard to 20 bighas of land which was agreed to be sold to the

society by Chauthmal. In fact the writ petition filed by Kailash Chand for

quashing  the  FIR  was  rejected  by  the  High  Court.  (Civil  W.P.

No.9293/2005 decided on 23.11.2005).  As the finding of the High Court

that  the  Collector/Special  Officer  was  a  Judge  has  been  set  aside,  the

quashing of the FIR with reference to the Special Officer, cannot be upheld.

To this extent, the contention of the appellants merits acceptance and the

quashing of the FIR with reference to the then Special Officer is set aside.

The quashing of FIR as against respondents 1 and 2 will have no bearing on

the FIR in so far as the other accused with reference to the 20 bighas of

land.   Nor  anything  stated  above shall  be  construed  as  a  finding  on  the

merits.

20. The appeals are accordingly allowed in part to the extent mentioned

above.

.

……………………….J. (R V Raveendran)

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New Delhi; ……………………….J. January  30, 2009. (J M Panchal)

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