JUDGMENT
M.K. Mittal, J.
1. Application has been filed under Section 482 Cr.P.C. for quashing the criminal case No. 1704 of 2001 State v. Saroj and Ors. under Section 420 IPC, P.S. Chandaus, District Aligarh pending in the Court of Addl. Civil Judge, (J.D.) Aligarh.
2. Heard Sri Gautam Chaudhary, learned Counsel for the applicant learned A.G.A. and perused the record.
3. In this matter, notices were issued to opposite party No. 2 and 3 which have been served on them. No counter affidavit has been tiled by any of the opposite parties.
4. The brief facts are that opposite party No. 2 who was posted as Assistant Consolidation Officer, Tehsil Kher, District Aligarh lodged a first information report against the applicant on 26.4.2001 at 6.20 p.m. alleging that the applicants on the basis of resolution dated 19.4.1986 of Land Management Committee and in collusion with the officers and officials of the consolidation and revenue department obtained the order of mutation from Consolidation Officer Sadar, Aligarh on 5.5.1998 in respect of Gram Samaj Land situate in Mauja Jalakaseru, Tehsil Gawana, District Aligarh. Mutation was also done in their names, although the applicants belong to the general caste and were not eligible in view of the long list of landless labourers belonging to the Scheduled Caste etc. In this manner, they encroached upon the right of the Scheduled Caste landless labourers and also damaged the Gram Samaj property. On the basis of this report, a case was registered and after investigation charge sheet was submitted against the applicants. Learned Magistrate took cognizance and directed to summon the accused persons by order dated 7.7.2005.
5. The contention of the applicants is that the Land Management Committee had passed a resolution recommending the allotment of land in favour of the applicant and the same was approved on 10.10.1986. Thereafter by order dated 5.5.1998 passed by the Consolidation officer, mutation was directed to be affected in their names. Against that order objections were filed before the Settlement Officer Consolidation and he allowed the objection by order dated 3.5.2001. A revision No. 172/139 was filed against the order dated 3.5.2001 before the Deputy Director of Consolidation and he by order dated 7.6.2003 dismissed the revision. Thereafter applicants filed a writ petition No. 29461 of 2003 and by order dated 16.7.2003 operation of the impugned orders dated 3.5.2001 and 7.6.2003 was stayed. The Deputy Director of Consolidation while dismissing the revision on 7.6.2003 had also observed that the matter was already pending before the Collector and according to his order the parties could take legal action in the competent Court. The Additional Collector, Administration, Aligarh by order dated 22.1.2004 held that the Land Management Committee had passed the valid resolution and same was approved on 10.10.1986 and the complaint was made after 17-18 years on 9.5.2003. He also held that resolution was passed in favour of 71 persons and out of them mutation was done in favour of 35 persons. Against this order a revision No. 96/2004 was filed before the Assistant Commissioner, Agra Region, Agra and he by order dated 24.2.2005 partly allowed the revision and remanded the matter to the Collector. Against that order the applicants filed Civil Misc. Writ Petition No. 46405 of 2005 and by order dated 7.7.2005 the operation of the impugned order dated 24.2.2005 has been stayed. It appears that this writ petition is still pending and it shows that the question whether the allotment was legal or not is still subjudice.
6. Learned Counsel for the applicants has contended that the collector is competent authority under Section 198(4) of U.P. Z.A. & L.R. Act to see whether the allotment of the Gram Samaj Land has been properly made or not and that the Assistant Consolidation Officer had no occasion or authority to lodge any first information report against the applicants.
7. Section 198(4) of U.P. Z.A. & L.R. Act provides that Collector may of his own motion and shall on the application of any person aggrieved by an allotment of land inquire in the manner prescribed into such allotment and if he is satisfied that the allotment is irregular, he may cancel the allotment and the lease, if any. Sub-section (7) of the aforesaid Section provides the consequence that shall ensue in case allotment or lease is cancelled under Sub-section (4).
8. In the circumstances of the case, Consolidation Officer had directed for mutation of the names of the applicants by-order dated 5.5.1998. The objection filed before the Settlement Officer against that order was decided on 3.5.2001. The first information report was lodged by Assistant Consolidation Officer on 26.4.2001. The copy of this report has been filed as annexure No. 2 by the applicants. There is no mention in this report as to under what authority or order the Assistant Consolidation Officer was competent to lodge this report. According to the allegations as made in the report, applicants had obtained mutation order from the Consolidation Officer in collusion with the officers of the consolidation and revenue department by producing the photocopy of the resolution dated 19.4.1986 i.e. they had played fraud on the consolidation Court
9. In the circumstances, if any complaint was required to be filed, it could be filed by the Settlement Officer or any Court/Officer senior to him and not by the Assistant Consolidation Officer. Therefore in my opinion, the contention as raised by the learned Counsel for the applicants that the Assistant Consolidation Officer had no authority to file this first information report, is correct. Therefore the report being without any right the criminal proceeding cannot continue on the basis thereof. Moreover as mentioned above, the fact whether the allotment is legal or not is still subjudice and has to be decided in the writ petition No. 46405 of 2005. In case it is found that allotments are not legal, the collector can take necessary action as permissible under law.
10. With this observation, application is allowed and the criminal proceedings in case No. 1704 of 2001 State v. Saroj and Ors. Under Section 420 IPC, P.S. Chandaus, District Aligarh pending in the Court of Addl. Civil Judge (J.D.), Aligarh are hereby quashed.