Karnataka High Court
Smt Shreeroopa vs The State Of Karnataka on 13 July, 2022
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
-1-
WP No. 8905 of 2022 C/W
WP No.9183 OF 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF JULY, 2022
R
BEFORE
THE HON'BLE MR JUSTICE M.NAGAPRASANNA
WRIT PETITION NO. 8905 OF 2022 (S-RES)
C/W
WRIT PETITION NO.9183 OF 2022
IN W.P.No.8905/2022
BETWEEN:
1. SMT. SHREEROOPA,
D/O LATE G THIMMA NAIK,
AGED ABOUT 47 YEARS,
R/A NO.304, G2, 3RD STAGE, 4TH BLOCK,
BASAVESWARANAGAR,
BENGALURU - 560 079.
...PETITIONER
(BY SRI.D.R.RAVISHANKAR SENIOR ADVOCATE A/W
SMT. SIRI RAJASHEKAR, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA,
Digitally signed by REPRESENTED BY THE PRINCIPAL SECRETARY,
PADMAVATHI B K
DEPARTMENT OF PUBLIC ADMINISTRATION
Location: HIGH
COURT OF AND REFORMS (DPAR),
KARNATAKA
VIDHANASOUDHA,
-2-
WP No. 8905 of 2022 C/W
WP No.9183 OF 2022
BENGALURU - 560 001.
2. THE STATE OF KARNATAKA,
REPRESENTED THE ADDL. CHIEF SECRETARY,
DEPARTMENT OF URBAN DEVELOPMENT,
M.S.BUILDING
BENGALURU - 560 001.
3. THE COMMISSIONER,
BENGALURU DEVELOPMENT AUTHORITY,
T CHOWDAIAH ROAD,
BENGALURU - 560 020.
4. THE ANTI CORRUPTION BUREAU,
NO.49, KHANIJA BHAVAN,
RACE COURSE ROAD,
BENGALURU - 560 001.
REPRESENTED BY ITS SUPERINTENDENT OF POLICE.
...RESPONDENTS
(BY SMT.SHILPA S GOGI, HCGP FOR R1 AND R2;
SRI.B.S.SACHIN, ADVOCATE FOR R3;
SRI.P.N.MANMOHAN, ADVOCATE FOR R4)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
CALL FOR RELEVANT RECORDS; QUASH THE IMPUGNED
ORDER BEARING DATED 21.04.2022 PASSED BY THE R-1
VIDE ANNEXURE - J; GRANT AN INTERIM ORDER TO STAY
THE OPERATION AND IMPLEMENTATION OF THE
IMPUGNED ORDER BEARING DATED 21.04.2022 PASSED
-3-
WP No. 8905 of 2022 C/W
WP No.9183 OF 2022
BY THE R-1 VIDE ANNEXURE - J IN ANY FORM BY THE
RESPONDENTS.
IN W.P.No.9183/2022
BETWEEN:
1. SMT. SHREEROOPA,
D/O LATE G THIMMA NAIK,
AGED ABOUT 47 YEARS,
R/A NO.304, G2, 3RD STAGE,
4TH BLOCK, BASAVESWARANAGAR,
BENGALURU - 560 079.
...PETITIONER
(BY SRI.D.R.RAVISHANKAR, SENIOR ADVOCATE A/W
SMT. SIRI RAJASHEKAR.,ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
REPRESENTED BY THE PRINCIPAL SECRETARY
DEPARTMENT OF PUBLIC ADMINISTRATION
AND REFORMS (DPAR)
VIDHANASOUDHA
BENGALURU-560001
2. THE STATE OF KARNATAKA
REPRESENTED THE ADDL CHIEF SECRETARY
DEPARTMENT OF URBAN DEVELOPMENT,
M S BUILDING
BENGALURU-560001
3. THE COMMISSIONER,
BENGALURU DEVELOPMENT AUTHORITY,
T CHOWDAIAH ROAD,
-4-
WP No. 8905 of 2022 C/W
WP No.9183 OF 2022
BENGALURU - 560 020.
4. THE ANTI CORRUPTION BUREAU,
NO.49, KHANIJA BHAVAN,
RACE COURSE ROAD,
BENGALURU - 560 001.
REPRESENTED BY ITS SUPERINTENDENT OF POLICE.
5. SRI.M.NARAYANSWAMY,
FATHER NAME NOT KNOWN,
AGED ABOUT 49 YEARS,
NO.206, LAKSHMANAMURTHY NAGARA,
RAMAMURTHY NAGAR POST,
BENGALURU - 560 016.
...RESPONDENTS
(BY SMT.SHILPA S GOGI, HCGP FOR R1 AND R2;
SRI.SACHIN B.S., ADVOCATE FOR R3;
SRI.P.N.MANMOHAN, ADVOCATE FOR R4)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA READ WITH
SECTION 482 OF CR.P.C. PRAYING TO QUASH ANNEXURE
- L FIR IN CRIME NO.34/2022 DATED 29.04.2022
REGISTERED BY THE R-4 IN TH ENDS OF JUSTICE AND
EQUITY AND ETC.,
THESE WRIT PETITIONS COMING ON FOR
PRELIMINARY HEARING IN 'B' GROUP, THIS DAY, THE
COURT MADE THE FOLLOWING:
-5-
WP No. 8905 of 2022 C/W
WP No.9183 OF 2022
ORDER
In W.P.No.8905/2022:
The petitioner is before this Court calling in question an order dated 21.04.2022 passed by respondent No.1 according approval for conduct of investigation against the petitioner for the alleged offences punishable under the Prevention of Corruption Act, 1988 (hereinafter referred to as 'the said Act' for short).
2. Heard the learned Senior counsel, Sri. D.R. Ravi Shankar appearing for the petitioner, Smt. Shilpa S. Gogi, learned HCGP appearing for respondent Nos.1 and 2, Sri. B.S. Sachin, learned counsel appearing for respondent No.3 and Sri. P.N. Manmohan, learned counsel appearing for respondent No.4.
3. Brief facts leading to the filing of the present petition, as borne out from the pleadings, are as follows:
The petitioner is an officer of the Karnataka Administrative Service having joined the service in the -6- WP No. 8905 of 2022 C/W WP No.9183 OF 2022 year 1999 and has since then been promoted to higher echelons of office. At the relevant point in time, the petitioner was holding the post of Deputy Secretary-2 in the Bangalore Development Authority (hereinafter referred to as 'the BDA' for short). It is this that tenure of the petitioner that forms the gravamen in the lis.
4. The issue in the lis dates back to 05.10.2007 when the BDA decided to accede to the request of the members of the Scheduled Caste/Scheduled Tribes, Government for allotment of sites to totaling 46 sites, to 46 members measuring 20 x 30 feet. The list of beneficiaries, who was also included in the Government order dated 05.10.2007. In the said Government order, the name of one Hanumamma was found at Sl.No.36 to be one of the prospective allottees in terms of the decision of the Government to allot sites of the aforesaid dimension to 46 people. The communication of the Government dated 05.10.2007 is placed before the BDA and the Board resolves on 20.03.2008 in its resolution No.385/2008 to -7- WP No. 8905 of 2022 C/W WP No.9183 OF 2022 accept the Government Order dated 05.10.2007 and allot 46 sites to 46 members belonging to Scheduled Caste/Scheduled Tribes. This was accepting the agenda that was placed before the Board in resolution No.385/2008.
5. Pursuant to the said resolution, the sites were sought to be allotted on 18.07.2008. Here again, the name of Hanumamma is found at Sl.No.36. Several proceedings were drawn pursuant to the said resolution and decision emerges to allot the sites. The note sheets that are appended to the petition also notices the fact the amount of Rs.59,038/- paid by Hanumamma and like towards the allotment sought to be made by the BDA. It is after all these proceedings, an allotment letter is issued in favor of Hanumamma on 02.08.2008, by the BDA.
6. During the afore-quoted proceedings, the petitioner was not in the BDA. The petitioner, on transfer as Deputy Secretary-2, joins the BDA in the month of -8- WP No. 8905 of 2022 C/W WP No.9183 OF 2022 March 2009 and on the basis of afore-quoted proceedings, executes a lease-cum-sale agreement in favor of Hanumamma on 26.06.2009. After 26.06.2009, what transpires is, astounding silence. Later in the year 2021, complaint in the name of one M. Narayanaswamy is received by the BDA, alleging that the sale deed that was executed in furtherance of the agreement to sell, was a fraud played by Hanumamma as the allotment of the property has been made to 4 members of a single family.
7. Based upon the said complaint, the Anti - Corruption Bureau (hereinafter referred to as 'the ACB' for short) writes to the Government on 26.11.2021 seeking approval to conduct, inquiry, enquiry or investigation as obtaining under Section 17A of the said Act. The communication that was sent from the ACB to the Government was forwarded to the Commissioner, BDA seeking his opinion about the communication of the ACB for approval under Section 17A of the said Act. The Commissioner, BDA unequivocally declines the said -9- WP No. 8905 of 2022 C/W WP No.9183 OF 2022 permission sought on the ground that the allotment was in terms of the resolutions of the BDA. This communication was forwarded to the State and the competent authority accords approval/permission on 21.04.2022 on the ground that the documents were looked into and it was necessary for the matter to be investigated under Section 17A of the Act accorded. It is at that juncture, the petitioner knocks the doors of this Court in the subject petition.
8. This Court entertaining the petition grants an interim order of stay of the order of approval dated 21.04.2022 by its order dated 26.04.2022.
9. Learned Senior counsel, Sri. D.R.Ravishankar representing the petitioner would contend with vehemence that, all that the petitioner has done is execution of the registered lease-cum-sale agreement in terms of the Government Order, resolution of the BDA and the allotment of the site in favor of Hanumamma by the BDA. This cannot become an offence under the said Act for the
- 10 -
WP No. 8905 of 2022 C/W WP No.9183 OF 2022 ACB to seek approval from the hands of the Government. He would further contend that notwithstanding a clear reply by the Commissioner, BDA, the competent authority has accorded approval, which bears no application of mind, which is sine-qua-non for an order to be passed according approval under Section 17A of the said Act.
10. Learned counsel Sri.P.N. Manmohan representing respondent No.4 - ACB would submit that since the complaint was registered, they have sought approval in terms of Section 17A of the said Act and since approval was granted, the FIR is registered to conduct investigation and no fault can be found with the ACB. He would admit that the FIR came to be registered out of ignorance of the order passed in WP.No.8905/2022 as it was not communicated to the ACB. He would submit that since there is an offence indicated, they be permitted to continue the investigation and take the issue to its logical end.
- 11 -
WP No. 8905 of 2022 C/W WP No.9183 OF 2022
11. Learned HCGP, Smt. Shilpa S. Gogi for respondent Nos.1 and 2 would however seek to justify the order according approval of 24.01.2022 and would emphasize on the words "PÀÆ®APÀĵÀªÁV ¥Àj²Ã°¸À¯ÁV" to contend that, that would be enough compliance under Section 17A of the said Act and it would demonstrate application of mind on the part of the competent authority and the stage for interference at the hands of this Court is yet to arrive and would seek dismissal of the petition.
12. I have given my anxious consideration to the submissions made by the learned Senior Counsel and respective learned counsel and have perused the material on record.
13. The afore-quoted facts, though not in dispute, needs reiteration for a consideration of the issue in the lis. The Government on 05.10.2007 communicates its decision to the BDA with regard to allotment of sites of dimension
- 12 -
WP No. 8905 of 2022 C/W WP No.9183 OF 2022 20X30 feet to 46 people. The communication reads as follows:
"EAzÀ:-
¸ÀPÁðgÀzÀ ¥ÀæzsÁ£À PÁAiÀÄðzÀ²ð, £ÀUÀgÁ©ªÀÈ¢Þ E¯ÁSÉ, «PÁ¸À ¸ËzsÀ, ¨ÉAUÀ¼ÀÆgÀÄ.
EªÀjUÉ:-
DAiÀÄÄPÀÛgÀÄ, ¨ÉAUÀ¼ÀÆgÀÄ C©ªÀÈ¢Ý, ¥Áæ¢PÁgÀ, ¨ÉAUÀ¼ÀÆgÀÄ.
ªÀiÁ£ÀågÉ, «µÀAiÀÄ: PÀ£ÁðlPÀ zÀ°vÀ QæAiÀiÁ ¸À«ÄwAiÀÄ 46 ªÀÄA¢ ¸ÀzÀ¸ÀåjUÉ «±ÉõÀ ¥ÀæPÀgÀtzÀr ¤ªÉñÀªÀ£ÀÄß ºÀAaPÉ ªÀiÁqÀĪÀ §UÉÎ.
G¯ÉèÃR: ¢£ÁAPÀ 15/06/2007gÀ ¥ÀvÀæ ¸ÀASÉå:¨ÉAC¥Áæ:
DAiÀÄÄ:C«:ºÀAaPÉ:n.156:2007-08.
*** ªÉÄð£À «µÀAiÀÄPÉÌ ¸ÀA§A¢¹zÀAvÉ, G¯ÉèÃTvÀ ¥ÀvÀæzÀ PÀqÉUÉ UÀªÀÄ£À ¸É¼ÉAiÀįÁVzÉ, ²æà r.JA.wªÀÄägÁAiÀÄ¥Àà, gÁdå ¸ÀAZÁ®PÀgÀÄ, PÀ£ÁðlPÀ zÀ°vÀ QæAiÀiÁ ¸À«Äw, EªÀgÀÄ ªÀiÁ£Àå ªÀÄÄRå ªÀÄAwæAiÀĪÀjUÉ ¸À°è¹gÀĪÀ ªÀÄ£À« ªÀÄvÀÄÛ CqÀPÀUÀ¼À ¥ÀæwAiÀÄ£ÀÄß EzÀgÉÆA¢UÉ ®UÀwÛ¸À¯ÁVzÉ.
CzÀgÀAvÉ, ¥Àj²µÀÖ eÁw/¥Àj²µÀÖ ¥ÀAUÀqÀ ºÁUÀÆ EvÀgÉ DyðPÀªÁV »AzÀĽzÀ ¤ªÉñÀ£À gÀ»vÀ 46 ªÀÄA¢ ¥sÀ¯Á£ÀĨsÀ«UÀ½UÉ ¨ÉAUÀ¼ÀÆgÀÄ C©üªÀÈ¢Þ ¥Áæ¢PÁgÀ¢AzÀ 20x30 Cr C¼ÀvÉAiÀÄ ¤ªÉñÀ£ÀUÀ¼À£ÀÄß ºÀAaPÉ ªÀiÁqÀ®Ä ¸ÀPÁðgÀzÀ C£ÀĪÉÆÃzÀ£É ¤ÃqÀ¯ÁVzÉ JAzÀÄ w½¸À®Ä £Á£ÀÄ ¤zÉÃð²vÀ£ÁVzÉÝãÉ.
¤ªÀÄä £ÀA§ÄUÉAiÀÄ,"
- 13 -
WP No. 8905 of 2022 C/W WP No.9183 OF 2022 (emphasis supplied)
14. In furtherance of the communication, the Board of the BDA meets and resolves in terms of its resolution dated 24.04.2008 in its meeting held in resolution No.385/2008 accepting the Government communication dated 05.10.2007 and according approval for allotment of the said sites. The resolution of the BDA reads as follows:
"PÁAiÀÄðzÀ²ð, ¨ÉAC¥Áæ, ¨ÉAUÀ¼ÀÆgÀÄ.
¥Áæ¢üPÁgÀzÀ ¸À¨sÉAiÀÄ ¢£ÁAPÀ 24-4-2008 ªÀÄÄAzÀÆqÀ¯ÁzÀ «µÀAiÀÄ ¸ÀASÉå 385/08 ¥Áæ¢üPÁgÀzÀ ¸À¨sÉAiÀÄ ªÀÄÄAzÉ ªÀÄAr¸À¯ÁzÀ n¥ÀàtÂAiÀÄ£ÀÄß ¥Àj²Ã°¸À¯Á¬ÄvÀÄ. ZÀZÉðAiÀÄ £ÀAvÀgÀ, ¢£ÁAPÀ 5-10-2007 gÀ ¸ÀPÁðgÀzÀ DzÉñÀzÀ£ÀéAiÀÄ, ¥Áæ¢üPÁgÀzÀ n¥ÀàtÂAiÉÆA¢UÉ ®UÀwÛ¹gÀĪÀ ¥ÀnÖAiÀÄ°è£À PÀ£ÁðlPÀ zÀ°vÀ QæAiÀiÁ ¸À«ÄwAiÀÄ 46 ªÀÄA¢ ¸ÀzÀ¸ÀåjUÉ CªÀgÀ ºÉ¸Àj£À JzÀÄgÀUÀqÉ ¸ÀÆa¹gÀĪÀ ¤ªÉñÀ£ÀUÀ¼À£ÀÄß ZÁ°ÛAiÀÄ°ègÀĪÀ ¤ªÉñÀ£À ºÀAaPÉ zÀgÀªÀ£ÀÄß «¢ü¹ ªÀÄAdÆgÀÄ ªÀiÁqÀ®Ä ¤tð¬Ä¸À¯Á¬ÄvÀÄ.
¸À»-
CzsÀåPÀëgÀÄ, ¨ÉA C ¥Áæ, ¨ÉAUÀ¼ÀÆgÀÄ"
(emphasis supplied)
15. What follows is the measurement of the sites, which takes place on 18.01.2008 and identification of the properties and the beneficiaries of such properties. Here
- 14 -
WP No. 8905 of 2022 C/W WP No.9183 OF 2022 again, the name of Hanumamma figures at Sl.No.36 to be allotted a particular site and the amount also is mentioned.
36 Hanumamma 1776, 4th 151 G.B. Vokkaliga 11,000/-
W/o Nagaraj E cross, (NDH) 1st
9th Main Block
Road,
HAL 3rd
Stage,
Bangalore
- 75.
16. Proceedings were drawn before the authority and an amount of Rs.59,038/- was sought to be collected from the hands of the allottees, which can be gathered from the note sheets appended to the petition, the same read as follows:
"217.PÀArPÉ 215gÀAvÉ ¸ÀAzÁAiÀÄ ªÀiÁrgÀĪÀ ¤ªÉñÀ£ÀzÀ ªÀiË®åªÀ£ÀÄß F PɼÀUÉ ¥Àj²Ã°¸À¯ÁVzÉ.
¤ªÉñÀ£ÀzÀ 55.75 1050 gÀÆ.58538.00
«¹ÛÃtð
R.C.ªÀgÀ¢}
PÀÆ.628 gÀÆ. 300.00
Cfð ¨ÁQ ¸ÀASÉå gÀÆ. 200.00
- 15 -
WP No. 8905 of 2022 C/W
WP No.9183 OF 2022
gÀÆ.59038.00
¸ÀAzÁAiÀÄ gÀÆ.59038.00
(emphasis supplied)
17. Following the aforesaid communications, as the site is also allotted in the name of Hanumamma by the BDA, on 02.08.2008, the area, dimension and the amount paid is also indicated in the said letter of allotment and it reads as follows:
¤ªÉñÀ£ÀzÀ ¤ªÉñÀ£ÀzÀ C¼ÀvÉ ¤ªÉñÀ£ÀzÀ ªÀiË®åzÀ 60 ¢£ÀUÀ¼À ¸ÀASÉå ªÀÄvÀÄ ¸Àj ¸ÀĪÀiÁgÀÄ ZÀzÀgÀ DgÀA©üPÀ oÉêÀuÉAiÀiÁV CªÀ¢üAiÉƼÀUÁV §qÁªÀuÉAiÀÄ UÀd/ZÀzÀgÀ ¸ÀAzÁAiÀĪÁVgÀĪÀ ¥ÁªÀw¸À¨ÉÃPÁVgÀĪÀ ºÉ¸ÀgÀÄ «ÄÃlgïUÀ¼À°è ªÉƧ®UÀÄ ¨ÁQ ªÉƧ®UÀÄ ¤.¸ÀA.151 6.1019.14 «Äà ¤ªÉñÀ£ÀzÀ ªÀiË®å gÀÆ. 58,538.00 eÁÕ£À¨sÁgÀw PÉÆ.A.±ÀÄ®Ì gÀÆ. 300.00 (£ÁUÀzÉêÀ£ÀºÀ½î) MlÄÖ 55.75 ZÀ.«Äà Cfð ±ÀÄ®Ì gÀÆ. 100.00 1£Éà ¨ÁèPï £ÉÆÃA. ±ÀÄ®Ì gÀÆ. 100.00
-------------
MlÄÖ gÀÆ. 59,038.00
18. It is after all these proceedings, the petitioner enters the BDA as Deputy Secretary-2, on her posting, the petitioner performs the act of execution of lease-cum-sale agreement in furtherance of all the aforesaid
- 16 -
WP No. 8905 of 2022 C/W WP No.9183 OF 2022 communication, resolution, decision and payment of money by Hanumamma.
19. The lease-cum-sale agreement was entered into on 26.06.2009. After about 10 years, a sale deed is executed by the BDA in furtherance of lease-cum-sale agreement. This triggers the registration of a complaint by one M. Narayanaswamy to the Special Task Force, BDA on 25.11.2021 alleging that all the family members of Hanumamma have been granted a site contrary to their entitlement. This becomes the subject matter of a communication from the ACB to the competent authority seeking approval under Section 17A of the said Act. The communication was forwarded to the Commissioner, BDA seeking his opinion since the entire issue would come within the realm of the resolutions of the BDA. The communication is replied to by the Commissioner, BDA on 05.01.2022. The reply reads as follows:
"¸ÀPÁðgÀzÀ C¥ÀgÀ ªÀÄÄRåPÁAiÀÄðzÀ²ðUÀ¼ÀÄ £ÀUÀgÁ©üªÀÈ¢Þ E¯ÁSÉ
- 17 -
WP No. 8905 of 2022 C/W WP No.9183 OF 2022 «PÁ¸À ¸ËzsÀ ¨ÉAUÀ¼ÀÆgÀÄ ªÀiÁ£ÀågÉ, «µÀAiÀÄ: ²æà JA.£ÁgÁAiÀÄt¸Áé«Ä, gÀªÀgÀÄ ¸À°è¹gÀĪÀ zÀÆj£À PÀÄjvÀÄ ²æêÀÄw n.gÀÆ¥À, »A¢£À G¥ÀPÁAiÀÄðzÀ²ð-3, ©rJ, ¨ÉAUÀ¼ÀÆgÀÄ gÀªÀgÀ «gÀÄzÀÝ «ZÁgÀuÉ ºÁUÀÆ vÀ¤SÉ PÉÊUÉƼÀî®Ä ¥ÀƪÁð£ÀĪÀÄw ¤ÃqÀĪÀAvÉ PÉÆÃjgÀĪÀ §UÉÎ.
G¯ÉèÃR: ¸ÀPÁðgÀzÀ ¥ÀvÀæ ¸ÀASÉå: £ÀCE 285 ¨ÉAD¸Éà 2021 (E) ¢£ÁAPÀ:10-12-2021.
ªÉÄîÌAqÀ «µÀAiÀÄPÉÌ ¸ÀA§A¢ü¹zÀAvÉ, G¯ÉèÃTvÀ ¸ÀPÁðgÀzÀ ¥ÀvÀæzÀ°è ²æêÀÄw n.gÀÆ¥À, G¥ÀPÁAiÀÄðzÀ²ð-3 gÀªÀgÀ «gÀÄzÀÝ eÁÕ£À¨sÁgÀw 1£Éà ¨ÁèPï §qÁªÀuÉ (£ÁUÀzÉêÀ£ÀºÀ½î) AiÀÄ°è ¥ÀÄ£Àgï ªÀ¸Àw CrAiÀÄ°è ºÀAaPÉ ªÀiÁrgÀĪÀ ¤ªÉñÀ£ÀUÀ¼À ¥ÉÊQ MAzÉà PÀÄlÄA§zÀ ¸ÀzÀ¸ÀåjUÉ ¤ªÉñÀ£ÀUÀ¼À£ÀÄß ºÀAaPÉ ªÀiÁrgÀĪÀ §UÉÎ ºÁUÀÆ M§âjUÉ 2 ¤ªÉñÀ£À ºÀAaPÉ ªÀiÁrgÀĪÀ §UÉÎ ¨sÀæµÁÖZÁgÀ ¥Àæw§AzsÀPÀ PÁAiÉÄÝ 1988 gÀ PÀ®A 17(J) gÀ£ÀéAiÀÄ ¥ÀƪÁð£ÀĪÀÄw ¤ÃqÀĪÀ §UÉÎ ¥Àj²Ã°¹ ¥Áæ¢üPÁgÀzÀ C©ü¥ÁæAiÀĪÀ£ÀÄß w½¸ÀĪÀAvÉ PÉÆÃgÀ¯ÁVzÉ.
F ¥ÀæPÀgÀtzÀ PÀÄjvÀÄ ¥Àj²Ã°¸À¯ÁVgÀÄvÀÛzÉ. ²ÃªÀÄw n.gÀÆ¥À , »A¢£À G¥ÀPÁAiÀÄðzÀ²ð-3 EªÀgÀÄ ²æêÀÄw ºÀ£ÀĪÀĪÀÄä PÉÆÃA f.¹.£ÁUÀgÁeï EªÀjUÉ ¤ªÉñÀ£À ¸ÀASÉå:151 C£ÀÄß ºÀAaPÉ ªÀiÁr ºÀAaPÉ ¥ÀvÀæPÉÌ ¸À» ªÀiÁrgÀÄvÁÛgÉ. UÀÄwÛUÉ ªÀÄvÀÄÛ ªÀiÁgÁl M¥ÀàAzÀ ¥ÀvÀæPÉÌ »A¢£À G¥ÀPÁAiÀÄðzÀ²ð-2 DVzÀÝ ²æÃ. n. gÀÆ¥À EªÀgÀÄ ¸À» ªÀiÁrgÀÄvÁÛgÉ. ¸ÀPÁðgÀzÀ £ÀUÀgÁ©üªÀÈ¢Þ E¯ÁSÉAiÀÄ C¢üãÀ PÁAiÀÄðzÀ²ðAiÀĪÀjAzÀ ¹éÃPÀÈvÀªÁzÀ ¥ÀvÀæ ¸ÀASÉå:£ÀDE 35 ¨ÉA¨sÀƸÁé 2007 ¢£ÁAPÀ:05-10-2007 gÀ°è ¥Àj²µÀÖ ¥ÀAUÀqÀ eÁw/¥Àj²µÀÖ ¥ÀAUÀqÀ ºÁUÀÆ DyðPÀªÁV »AzÀĽzÀ
- 18 -
WP No. 8905 of 2022 C/W WP No.9183 OF 2022 ¤ªÉñÀ£À gÀ»vÀ 46 ¥À¯Á£ÀĨsÀ«UÀ½UÉ 20x30 Cr C¼ÀvÉAiÀÄ ¤ªÉñÀ£ÀªÀ£ÀÄß ¨ÉAUÀ¼ÀÆgÀÄ C©üªÀÈ¢Þ ¥Áæ¢üPÁgÀ¢AzÀ ºÀAaPÉ ªÀiÁqÀ®Ä ¸ÀPÁðgÀzÀ C£ÀĪÉÆÃzÀ£É ¤ÃqÀ¯ÁVzÉ JAzÀÄ w½¹ ¥À¯Á£ÀĨsÀ«UÀ¼À ¥ÀnÖAiÀÄ£ÀÄß PÀ¼ÀÄ»¸À¯ÁVvÀÄÛ. ¢£ÁAPÀ:24-04-2008 gÀAzÀÄ £ÀqÉzÀ ¥Áæ¢üPÁgÀzÀ ¸À¨sÉAiÀÄ°è «µÀAiÀÄ ¸ÀASÉå:385/2008 gÀ°è ¤ªÉñÀ£ÀUÀ¼À£ÀÄß ZÁ°ÛAiÀÄ°ègÀĪÀ zÀgÀªÀ£ÀÄß «¢ü¹ ºÀAaPÉ ªÀiÁqÀ®Ä ¤tð¬Ä¸À¯ÁVzÉ.
46 ¥À¯Á£ÀĨsÀ«UÀ¼À ¥ÀnÖAiÀÄ°è ²æêÀÄw ºÀ£ÀĪÀĪÀÄä PÉÆÃA f.¹.£ÁUÀgÁeï EªÀgÀ ºÉ¸ÀgÀÄ PÀæªÀÄ ¸ÀASÉå:36 gÀ°è EgÀÄvÀÛzÉ. ¸ÀPÁðgÀ¢AzÀ ¹éÃPÀÈvÀªÁzÀ ¥ÀvÀæ ºÁUÀÆ ¥À¯Á£ÀĨsÀ«UÀ¼À ¥ÀnÖ ºÁUÀÆ ¥Áæ¢üPÁgÀzÀ ¸À¨sÉAiÀÄ°è PÉÊUÉÆAqÀ ¤tðAiÀÄzÀ PÀÄjvÀAvÉ F ¥ÀvÀæzÉÆA¢UÉ ®UÀwÛ¹ PÀ¼ÀÄ»¸À¯ÁVzÉ.
¥Áæ¢üPÁgÀzÀ ¸À¨sÉAiÀÄ wêÀiÁð£À ªÀÄvÀÄÛ DAiÀÄÄPÀÛgÀ C£ÀĪÉÆÃzÀ£ÉAiÀÄAvÉ ²æêÀÄw ºÀ£ÀĪÀĪÀÄä PÉÆÃA f.¹.£ÁUÀgÁeï gÀªÀjUÉ ¤ªÉñÀ£À ºÀAaPÉ ¥ÀvÀæPÉÌ CA¢£À G¥ÀPÁAiÀÄðzÀ²ð-3 gÀªÀgÀÄ ¸À» ªÀiÁrgÀÄvÁÛgÉ ºÁUÀÆ UÀÄwÛUÉ ªÀÄvÀÄÛ ªÀiÁgÁl M¥ÀàAzÀ ¥ÀvÀæªÀ£ÀÄß £ÉÆAzÁ¬Ä¹PÉÆnÖgÀÄvÁÛgÉ.
ªÉÄÃ¯É w½¹zÀ CA±ÀUÀ½AzÀ ²æêÀÄw n.gÀÆ¥À, »A¢£À G¥ÀPÁAiÀÄðzÀ²ð-3 EªÀgÀÄ AiÀiÁªÀÅzÉà PÀvÀðªÀå ¯ÉÆÃ¥À J¸ÀVgÀĪÀÅzÀÄ PÀAqÀÄ §A¢gÀĪÀÅ¢®è.
DzÀÄzÀjAzÀ, ²æêÀÄw n.gÀÆ¥À, »A¢£À G¥ÀPÁAiÀÄðzÀ²ð-3 EªÀgÀ «gÀÄzÀÝ ¨sÀæµÁÖZÁgÀ ¤UÀæºÀ zÀ¼À¢AzÀ «ZÁgÀuÉ ºÁUÀÆ vÀ¤SÉ PÉÊUÉƼÀî®Ä ¨sÀæµÁÖZÁgÀ ¥Àæw§AzsÀPÀ PÁAiÉÄÝ 1988 gÀ PÀ®A 17 (J) gÀ£ÀéAiÀÄ ¥ÀƪÁð£ÀĪÀÄw ¤ÃqÀĪÀ CªÀ±ÀåPÀvÉ EgÀĪÀÅ¢®è JA§ CA±ÀªÀ£ÀÄß vÀªÀÄä CªÀUÁºÀ£ÉUÉ ¸À°è¹zÉ."
(emphasis supplied)
- 19 -
WP No. 8905 of 2022 C/W WP No.9183 OF 2022
20. The Commissioner, BDA unequivocally indicates that the allotees were allotted sites in terms of the Government order dated 05.10.2007 and the resolution passed by the BDA in terms of the resolution No.385/2008 and there was no necessity to accord approval for any prosecution against the petitioner in particular as the petitioner has only followed what had been resolved by the BDA, notwithstanding this unequivocal communication from the Commissioner, BDA, the Government accords approval under Section 17A of the said Act. Whether this act of approval would stand the scrutiny of law is what is to be considered at this juncture.
21. Section 17A of the Prevention of Corruption Act, 1988, was brought into force on 26.07.2018. Section 17A of the said Act, reads as follows:
"17-A. Enquiry or inquiry or investigation of offences relatable to recommendations made or decision taken by public servant in discharge of official functions or duties.--(1) No police officer shall conduct any enquiry or inquiry or investigation into any offence alleged to have been committed by a public servant under this
- 20 -
WP No. 8905 of 2022 C/W WP No.9183 OF 2022 Act, where the alleged offence is relatable to any recommendation made or decision taken by such public servant in discharge of his official functions or duties, without the previous approval -
(a) in the case of a person who is or was employed, at the time when the offence was alleged to have been committed, in connection with the affairs of the Union, of that Government;
(b) in the case of a person who is or was employed, at the time when the offence was alleged to have been committed, in connection with the affairs of a State, of that Government;
(c) in the case of any other person, of the authority competent to remove him from his office, at the time when the offence was alleged to have been committed:
Provided that no such approval shall be necessary for cases involving arrest of a person on the spot on the charge of accepting or attempting to accept any undue advantage for himself or for any other person:
Provided further that the concerned authority shall convey its decision under this section within a period of three months, which may, for reasons to be recorded in writing by such authority, be extended by a further period of one month."
In terms of the above extracted provision of law introduced by an amendment, no Police Officer shall conduct any enquiry or inquiry or investigation into any offence alleged to have been committed by a public
- 21 -
WP No. 8905 of 2022 C/W WP No.9183 OF 2022 servant under the Prevention of Corruption Act, where the alleged offence is relatable to any recommendation made or decisions taken by such public servant in discharge of his official functions or duties without the previous approval of the officer or authority concerned.
22. Clause (a) thereof provides that in case of public servant who is or was employed in connection with the affairs of the Union at the time when the offence alleged to have been committed, the previous approval of the Central Government shall be obtained. Clause (b) likewise provides that in case of a public servant who is or was an employee in connection with the affairs of the State at the time when the offence was alleged to have been committee, the approval of the State Government shall be obtained before proceeding. Clause (c) provides that in case of any other person who comes within the definition of public servant previous approval of the competent authority to remove him from office at the time when the offence alleged to have been committee should be
- 22 -
WP No. 8905 of 2022 C/W WP No.9183 OF 2022 obtained. The narrative hereinabove cannot but indicate that the object of the Section was to protect public servants from malicious, vexatious or baseless prosecution. However, if enquiry into the circumstances in which the alleged administrative or official act was done by the public servant or where malfeasance committed by the public servant which would involve an element of dishonesty or impropriety is to be proceeded against, the approval of the competent authority is required.
23. In my considered view Section 17A and its purport must be observed with complete strictness bearing in mind public interest and protection available to such officers against whom offences are alleged, failing which many a time it would result in a malicious prosecution. Section 17A is clearly a filter that the prosecution must pass in order to discourage or avoid vexatious prosecution, though cannot be considered as a protective shield for the guilty, but a safeguard for the innocent.
- 23 -
WP No. 8905 of 2022 C/W WP No.9183 OF 2022
24. The provision (supra) was also considered by the Apex Court in the case of YESHWANTH SINHA v. CENTRAL BUREAU OF INVESTIGATION1. The Apex Court though did not consider as to how the previous approval of the competent authority has to be taken, but considered the amendment and its importance in the following paragraphs:
"117. In terms of Section 17-A, no police officer is permitted to conduct any enquiry or inquiry or conduct investigation into any offence done by a public servant where the offence alleged is relatable to any recommendation made or decision taken by the public servant in discharge of his public functions without previous approval, inter alia, of the authority competent to remove the public servant from his office at the time when the offence was alleged to have been committed. In respect of the public servant, who is involved in this case, it is clause (c), which is applicable. Unless, therefore, there is previous approval, there could be neither inquiry or enquiry or investigation. It is in this context apposite to notice that the complaint, which has been filed by the petitioners in Writ Petition (Criminal) No. 298 of 2018, moved before the first respondent CBI, is done after Section 17-A was inserted. The 1 (2020) 2 SCC 338
- 24 -
WP No. 8905 of 2022 C/W WP No.9183 OF 2022 complaint is dated 4.10.2018. Para 5 sets out the relief which is sought in the complaint which is to register an FIR under various provisions. Paras 6 and 7 of the complaint are relevant in the context of Section 17-A, which read as follows:
"6. We are also aware that recently, Section 17-A of the Act has been brought in by way of an amendment to introduce the requirement of prior permission of the Government for investigation or inquiry under the Prevention of Corruption Act.
7. We are also aware that this will place you in the peculiar situation, of having to ask the accused himself, for permission to investigate a case against him. We realise that your hands are tied in this matter, but we request you to at least take the first step, of seeking permission of the Government under Section 17-A of the Prevention of Corruption Act for investigating this offence and under which, "the concerned authority shall convey its decision under this section within a period of three months, which may, for reasons to be recorded in writing by such authority, be extended by a further period of one month".
(emphasis supplied)
118. Therefore, the petitioners have filed the complaint fully knowing that Section 17-A constituted a bar to any inquiry or enquiry or investigation unless there was previous approval. In fact, a request is made to at least take the first step of seeking permission under Section 17- A of the 2018 Act. Writ Petition (Criminal) No. 298 of 2018 was filed on 24.10.2018 and the complaint is based on non-registration of the FIR. There is no challenge to Section 17-A. Under the law, as it stood, both on the date of filing the petition and
- 25 -
WP No. 8905 of 2022 C/W WP No.9183 OF 2022 even as of today, Section 17-A continues to be on the statute book and it constitutes a bar to any inquiry or enquiry or investigation. The petitioners themselves, in the complaint, request to seek approval in terms of Section 17-A but when it comes to the relief sought in the writ petition, there was no relief claimed in this behalf.
119. Even proceeding on the basis that on petitioners' complaint, an FIR must be registered as it purports to disclose cognizable offences and the Court must so direct, will it not be a futile exercise having regard to Section 17-A. I am, therefore, of the view that though otherwise the petitioners in Writ Petition (Criminal) No. 298 of 2018 may have made out a case, having regard to the law actually laid down in Lalita Kumari [Lalita kumari v. State of U.P., (2014) 2 SCC 1: (2014) 1 SCC (Cri) 524], and more importantly, Section 17-A of the Prevention of Corruption Act, in a review petition, the petitioners cannot succeed. However, it is my view that the judgment sought to be reviewed, would not stand in the way of the first respondent in Writ Petition (Criminal) No. 298 of 2018 from taking action on Ext. P-1, complaint in accordance with law and subject to first respondent obtaining previous approval under Section 17-A of the Prevention of Corruption Act."
The Apex Court has considered the importance of previous approval of the competent authority in the afore-extracted judgment.
- 26 -
WP No. 8905 of 2022 C/W WP No.9183 OF 2022
25. Section 17A casts an obligation of application of mind on the part of the Competent Authority in three situations. The Section makes it clear that no officer shall conduct any enquiry or inquiry or investigation without previous approval. Therefore, the approving authority will have to look into the materials, apply its mind in all the three contingencies i.e., enquiry or inquiry or investigation. Though, enquiry and inquiry are often used interchangeably, there exists a difference between the two. Etymologically, the source of both enquiry and inquiry could be the same as 'en' is derived from French and 'in' is from Latin. Inquiry has a formal and official ring to it. Enquiry is informal and can be unofficial. Enquiry could even mean, to question; Inquiry is a formal investigation; investigation is a search. Therefore, the act casts an obligation of application of mind upon the authority to consider whether approval is sought for an enquiry, inquiry or an investigation. It becomes imperative for the authority to apply its mind to what is brought
- 27 -
WP No. 8905 of 2022 C/W WP No.9183 OF 2022 before it, as application of mind is the bedrock of any order that an authority passes, failing which, it would be contrary to the principles of natural justice, as non- application of mind is in itself violative of principles of natural justice.
26. Application of mind by an authority is demonstrable only in the order that the authority makes, for the order to demonstrate application of mind by the authority, it must contain the reasons, as recording of reasons in an order is the only way that one can construe such application of mind. Reasons are live links between the mind of the decision-taker, to the controversy in question and the decision arrived at. Reason and application of mind are impregnable for an order to sustain the scrutiny of law, be it administrative or quasi judicial. Reasons in every circumstance need not be elaborate, but nevertheless should bear application of mind. The case at hand and the order impugned will have to be tested on the
- 28 -
WP No. 8905 of 2022 C/W WP No.9183 OF 2022 anvil of the mandate of the statute, the intent behind its enactment and the rule of application of mind.
27. If, on a coalesce of all the facts that are narrated hereinabove and the order that is impugned in the petition is tested on the anvil of objects and reasons of Section 17A of the said Act, it would fall foul of the same as the order except saying "PÀÆ®APÀĵÀªÁV ¥Àj²Ã°¸À¯ÁV" there is nothing indicative of the fact that it bears application of mind. Granting approval for setting the criminal law in motion cannot be a frolicsome act as is done by the State in the case at hand, as it does not even bear any semblance of application of mind. Therefore, on the ground that the order dated 21.04.2022 does not bear any application of mind, would lose its legal legs to stand and, as a result, would meet its obliteration.
28. The obliteration of the order dated 21.04.2022 would not, however, preclude or be an impediment to the State to reconsider the matter from the stage of the
- 29 -
WP No. 8905 of 2022 C/W WP No.9183 OF 2022 communication sent by the ACB, while doing so, the State would bear in mind the observations made in the course of this order with regard to the Government order and resolutions passed by the BDA and shall also bear in mind that no other person is alleged of any act despite them handling the file, which has become the bone of contention.
29. For the aforesaid reasons, the following:
ORDER i. Writ Petition is allowed-in-part.
ii. The Government Order bearing
No.CAASUE/74/KEV/2021 dated
21.04.2022 passed by respondent No.1 stands quashed.
iii. Any action taken in the aftermath of the order dated 21.04.2022, detrimental to the petitioner, as a consequence, shall stand obliterated.
- 30 -
WP No. 8905 of 2022 C/W WP No.9183 OF 2022 iv. Liberty is reserved to the State to accord approval under Section 17A of the Prevention of Corruption Act, 1988 if need be, and while doing so, shall bear in mind the observations made in the course of this order.
In W.P.No.9183/2022:
In this writ petition, the allegations against the petitioner are identical to the companion petition i.e., W.P.No.8905/2022. However, in this case, FIR has already been registered in Crime No.34/2022.
For the reasons rendered in W.P.8905/2022 and also the admitted fact that the FIR came to be registered without the knowledge of the interim order granted in W.P.No.8905/2022 and the fact that the order granting approval under Section 17A of the said Act, which is quashed, in the aforesaid writ petition, as a matter of form and consequence. The FIR so registered in Crime
- 31 -
WP No. 8905 of 2022 C/W WP No.9183 OF 2022 No.34/2022, impugned in this petition also stands quashed.
Sd/-
JUDGE SJK