The High Court · 2024

Legal Reasoning

3. The background facts of the case are that the V.G.R. Case No.29 of 2003 was initiated against one Nilamani

Decision

Tripathy and others disposed of before the learned Special Court (Vigilance)., Cuttack and a confiscation proceeding was initiated vide C.C. No. 02 of 2016 pending before the learned Authorized Officer Special Court, Cuttack. While the matter stood thus one Basudev Majhi moved an Petition before the learned C.J.M-Cum-Special Judge (Vigilance)., Cuttack in the said V.G.R. Case No.29 of 2003, U/s. 457 of Cr.P.C. praying for release of his property seized in connection with the said V.G.R. Case No.29 of 2003 which is a lease hold land granted in favour of the Petitioner namely Basudev Majhi by the G.A. Department, // 2 // Government of Odisha. According to the Petitioner, the said land is no way involved in the case as dealt with in the said V.G.R. Case No.29 of 2003 and as such the property seized to be released in his favour.

4. The learned court vide impugned order dated 16.11.2010 disposed of the Petition with the following order:-

4. Perused letter No.-CA(NP) 61/98 of the Govt. of Orissa, G.A. Department addressed to the present petitioner communicated vide Memo No.2820 dated 04.03.09 through Joint Secretary to Govt. intimated to the present petitioner that the plot in question and construction over the same being under purview of investigation as Benami property of the accused, conversion of the said land is hold up till disposal of the above vigilance case, C. D. and Statements of witnesses reveal the present accused is in the habit of acquiring properties in the names of his other relations out of the money acquired in corrupt ways. He has constructed a double stored building on the case land after obtaining power of attorney from the present petitioner in the name of his brother-in- law Debadutta Satpathy. He is in possession of both movable and immovable properties worth Rupees one crore 17 lakh 31 thousand and 619 against his income of Rs.61 lakhs 40 thousand. Investigation further reveals he is in possession of D.A. to the tune of rupees one crore 2 lakhs 92 thousand and // 3 // 619 i.e. 248% of his own source of his income in the name of his family members and relatives which he could not subsequently account for.

5. Under the premises, I find the file in question relating to the very land belonging to the present accused under Benami transaction in the name of the present petitioner is having nexus with the offence committed by the accused as public Servant, Charge sheet being already filed, case being ripe for hearing by the competent court in the facts and circumstances, I hold it improper to allow the prayer of the Petitioner.

5. Being aggrieved by the aforesaid order, the Petitioner moved in the present revision, inter alia, on the ground that the impugned order passed by the learned Magistrate is palpably wrong, erroneous and illegal and that the learned Magistrate has failed to apply his judicial mind while considering the application filed U/s.457 Cr.P.C and has committed a grave error both in fact and law in as much as the Petitioner has no nexus with the said Sakuntala Tripathy with regard to the lease hold land entangled in the V.G.R. Case No.29 of 2003. According to the Petitioner, the land in question was leased out in fovour of the Petitioner way back in the year 1992 where as the Vigilance Case was initiated in the year 2003 and as such the question of any Benami transaction and investment is out and out false and the assertion of the vigilance police ought not have been accepted by the learned court below // 4 // that landed the learned court in an erroneous conclusion in rejecting the application filed U/s.457 Cr.P.C. The further contentions of the learned counsel for the Petitioner in the revision is that accepting the plea of the vigilance that the so called Power of Attorney was executed in the name of Debadutta Satpathy, brother of Smt. Usharani Satpathy, third wife of Sri Nilamani Tripathy, the Petitioner never executed any power of attorney in favour of the accused in the said V.G.R. Case and the land has not been transacted in favour of the said accused at any point of time. It is also the contentions of the Petitioner that he being a public figure has played absolute honesty in his public life and is suffering from various ailments and because of the legal necessity desires to sell the property in question and he filed the application for permission before the Government which was turned down as the vigilance police is in seisin over the matter wherein the document in question with regard to the property has been seized from the G.A. Department, Government of Odisha and he is not able to sell the property in favour of the third party.

6. It is submitted by Mr. Das, the learned counsel appearing from the State Vigilance that the Petitioner has no locus standi to agitate the matter before this Court in the present revision. According to Mr. Das first of all the Petitioner lease has expired who was the Petitioner before the trial court. He further submitted that the Petitioners in the present are claiming to be the legal heirs of the original Petitioner Basudev Majhi and are no way connected with // 5 // the Vigilance Case so as to give them a cause to get the seized documents released in their favour since the document in question has not been seized from their possession. He also submitted that the impugned order passed by the learned court below is legal and justified and the present Petition is not maintainable.

7. Heard the submissions of the Parties and perused the decision relied upon the by the learned counsel Mr. Panda in the matter of Keshar Singh Vrs. State of Bihar besides the relevant provision U/s.457 of the Code of Criminal Procedure. The simple question required herein to answer while considering the application is that whether the Petitioners have any right over the property, the documents whereof has been seized in connection with V.G.R. Case No.29 of 2003. Admittedly, the property in question allegedly taken as the subject matter in the said VGR Case is a lease hold property granted in favour of the father of the Petitioners. After the death of Basudev Majhi, the leasee, the original Petitioner herein, has not been sub- leased in their favour. Consequently, they are not entitled to bring the present Petition at the very first place as no right accrued in their favour pertaining to the land in question, in any manner what so ever, the document whereof has allegedly been seized in the V.G.R. Case. Further, the documents have not been seized from the possession of late Basudev Majhi and admittedly been seized from the G.A. Department, Government of Odisha. As rightly held by the learned trial court, it is the Joint Secretary to Government // 6 // under the G.A. Department who intimated the father of the Petitioner about the reason the property in question is the subject matter of investigation of Vigilance Case above noted in the manner that the same has been taken as a property in Benami transaction of the accused and accordingly handed over the documents to the Vigilance. From the records of the vigilance it reveals that the accused in the said Vigilance Case who was in the habit of acquiring properties in the names of his relations out of the money acquired by him in corrupt practices constructed a double storage building in the case land after obtaining Power of Attorney from the Petitioner in the name of his brother-in-law namely Debadutta Satpathy and is in possession of both the moveable and immovable properties and as such the property has a direct nexus in connection with the disproportionate asset case initiated in the name of the said accused in the V.G.R. Case No.29 of 2003 and as such could not have been released in favour of the Petitioner. To be more specific, neither the said Basudev Majhi had any cause before the court to claim the property for its release nor do the Petitioners in the present as they have absolutely no semblance of right over the same in any manner what so ever. More so, they never stepped in to the shoe of the said Basudeb Majhi, after his death as lessee or sub lessee in respect to the case land and as such they have absolutely no locus standi to agitate the matter as the LRs treating themselves as substitutes of the principal // 7 // Petitioner. The facts in the decisions referred to in the case is completely distinguishable from the fact in the present in the manner that in the said case the property claimed in the said DA proceeding stood recorded in the name of the Petitioners who claimed its retrieval after the death of the accused. Further, the father of the Petitioners was the accused in the case. In the present, the father of the Petitioners is himself not the accused but a third party. Further the property in question was not seized from his possession or that of the Petitioners. Consequently, the ratio of the decision cannot be applied in the present case to the advantage of the Petitioners.

8. In view of the discussion as above is no illegality or infirmity is found in the order impugned. The CRLREV is accordingly dismissed being devoid of merit. Judge (Chittaranjan Dash) Bijay Signature Not Verified Digitally Signed Signed by: BIJAY KETAN SAHOO Reason: Authentication Location: HIGH COURT OF ORISSA Date: 10-Apr-2024 18:57:59