K.K. Mathur vs State on 3 March, 2017

[Cites 22, Cited by 0]

Rajasthan High Court - Jodhpur

K.K. Mathur vs State on 3 March, 2017

1. The petitioners have preferred separate misc.petitions for quashing of FIR Nos.108/2016, 109/2016, 110/2016 and 111/2016 lodged at Police Station, CPS ACB, Jaipur for offences under Sections 13(1)(C)(D) & 13(2) of the Prevention of Corruption Act and Sections 193, 420, 409 and 120B IPC. As the offences alleged in all the FIRs relate to the Jodhpur Development Authority (hereinafter referred to as 'the JDA'), its Chairman and officers, the present misc.petitions were heard together and are being disposed by this common order.

2. It is contended by counsel for petitioner-Rajendra Singh Solanki that petitioner-Rajendra Singh Solanki was the Chairman of the JDA. He has been roped in the FIR due to political rivalry. It is also contended that the powers of the Chairman are given under the Jodhpur Development Authority Act, 2009 (hereinafter referred to as 'the Act/JDA Act') and the petitioner has not flouted any of the powers assigned to him under the Act.

3. It is further contended by counsel for the petitioner that the JDA is an autonomous body and is free to decide as to where the development is to be made in accordance with the need of the society. It is also contended that the JDA is competent to transfer any fund from one project to another, as per the requirement. It is further contended that all actions have been done in pursuance of the Board Resolutions and the allegation in the FIR that the (5 of 18) [ CRLMP-3783/2016] Resolutions were added after the Board Meeting is not correct. On this point, it is urged that the minutes of the Board Meeting have been approved in the subsequent Board Meeting, and since the minutes have been approved, it is amply clear that the Resolutions were passed in the Board Meeting.

4. With regard to the financial autonomy, it is contended that the JDA has financial autonomy. The JDA is free to decide as to how much amount is to be spent in a particular development activity. It is also contended that in all the FIRs, the petitioner has been made an accused just because he was the Chairman of the JDA and was appointed during the Congress regime, and after the BJP Government took over, he submitted his resignation, and whatever action has been initiated is because of the political vendetta. The prosecution has been instituted maliciously with ulterior motive for wreaking vengeance.

5. With regard to rise in the expenditure for certain development activities, it is contended that on the demand made by the residents, Parshads and MLAs, the JDA approves more fund for development activities, which is done in accordance with the procedure laid down under the Act. It is also contended that from the FIR, it is not revealed as to what monetary loss was caused to the JDA or the State, or what monetary gain was provided to the contractors. It is further contended that the Board initially sanctioned budget of Rs.250 crores, which, it is alleged, was raised. But in fact, only Rs.107 crores was spent. Therefore, the JDA has not even spent the budget initially sanctioned.

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6. Counsel for petitioner-K.K.Mathur, in addition to the arguments advanced by counsel for Rajendra Singh Solanki, has argued that petitioner-K.K.Mathur was posted as Director (Technical) and as per the provisions of the Act, he was required to follow the instructions issued by the Board. Non-compliance of the instructions would result into a departmental enquiry, and therefore, whatever was done by him, was in pursuance of the directions given by the Board. It is also contended that the officers have protection under Section 73 of the JDA Act.

7. In support of his submissions, counsel for petitioner- K.K.Mathur has placed reliance on Himmat Singh Vs. State of Rajasthan, 1982 WLN (UC) 518, wherein it was held that if there was no material that overseer was responsible for identifying labourers receiving payments, the overseer could not be held responsible for making payments of the disputed amounts.

8. It is contended that the procedural lacuna would not tantamount to an offence under the Prevention of Corruption Act. In this regard, reliance has been placed on C.K.Jaffer Sharief Vs. State, 2013 CRI.L.J. 341.

9. Counsel appearing for petitioners-Smt.Santosh Choudhary and other Engineers have stated that there is no allegation with regard to unlawful gain against them, and whatever shifting of work has been done, has been done on directions of the Board and the Engineers as such, are not responsible and the proceedings initiated against them is abuse of the process of court. It is contended that more than 30 persons (7 of 18) [ CRLMP-3783/2016] have been arrayed as accused in this case.

10. Learned Additional Advocate General appearing for the State has contended that in the Board Meeting dated 13.08.2013, only 15 matters were kept before the Board but after the Board Meeting, 39 Resolutions were added at the behest of the Chairman without obtaining any plans or details and the amount was inflated as per the wish of the contractors.

11. As an example, it was cited that Rs.1.47 crores was sanctioned for playground at Mandore. The amount was increased by Rs.2 crores for rock cutting, whereas there is no rock at the site. Another illustration cited is with regard to Kaga Samshan Ghat where the work order was issued in October, 2013 for Rs.45,00,000/-, which was revised to Rs.1 crore in September, 2013, that is, even prior to issuance of the main work order.

12. It is also contended by the learned Additional Advocate General that Director (Technical) being Head, is liable to point out the infirmities in the plan. The attention of this Court has also been drawn towards the work sanctioned for five different works at the same premises with different names at Roop Nagar. Work for Rs.45,00,000/- was started at Roop Nagar Community Centre, which was shifted to Khatik Samaj Samshan Ghat, where already Community Hall was being made and for which the budget of Rs.33,00,000/- was sanctioned, which was later increased to Rs.93,00,000/-. After shifting the work from Roop Nagar to Khatik Samaj Samshan Ghat, the amount of Rs.45,00,000/- was increased to Rs.1.19 crore within two days. There was no estimate (8 of 18) [ CRLMP-3783/2016] whatsoever and since separate sanction was there for Khatik Samaj Samshan Ghat, there was no justification for shifting the amount fixed for Roop Nagar Work. It is contended that the contractor stopped the work at Khatik Samaj Shamshan Ghat and the same contractor was given the work transferred from Roop Nagar Community Centre. Therefore, to provide benefit to the contractors, the accused connived amongst themselves.

13. The attention of this Court has also been drawn towards a road contract, which was initially sanctioned for road at Jhalamand Navdurga Nagar measuring 8 kms. It is contended that at the site, only 1.2 km. stretch was available for making the road, but a budget of Rs.1.40 crore was sanctioned and on 13.08.2013, the amount was increased by Rs.1 crore. It is contended that the measurement book for Jhalamand Navdurga Nagar was submitted and Rs.1.25 crore was paid, whereas at Jhalamand Navdurga Nagar, no road was constructed, and at the site, only 800 metres gravel was found.

14. The contention that the budget was shifted to other place, was vehemently denied and it was stated that since the amount has been paid as per measurement book of Jhalamand Navdurga Nagar, it has to be inferred that the road was constructed there, where actually no road was constructed.

15. It is also contended by the learned Additional Advocate General that the statement under Section 164 Cr.P.C. of Bhanwar Singh has been recorded, who has stated that the minutes were added after the Meeting dated 13.08.2013, which goes to show (9 of 18) [ CRLMP-3783/2016] that the agenda items were added after the Board Meeting, and therefore, the Board Resolution did not have any sanctity of law.

16. The attention of this Court has also been drawn towards the Meeting dated 03.10.2012, wherein the members of the Board expressed their displeasure on non-submission of the proposal for increase in expenditure without conducting technical survey, and it was mentioned that it is the duty of the Director (Technical) to make recommendation.

17. It is further contended by the learned Additional Advocate General that after the enactment of the Rajasthan Transparency Public Procurement Act, 2012 (hereinafter referred to as 'the RTPP Act of 2012'), Section 42 of which makes interference with procurement process as an offence punishable within five years' imprisonment and fine extending to Rs.50,00,000/- and the same being made applicable to the authorities, shifting of money from one project to another without inviting new tenders / objections tantamount to commission of an offence under Section 42 of 'the RTPP Act', and the protection provided under Section 73 of the JDA Act would not be available, as Section 73 only provides immunity to the persons, who have done an act lawfully in good faith and with due care and attention.

18. It is further contended that the scope of entertaining the misc.petition for quashing of the FIR is very limited as held in State of Haryana & Ors. Vs. Ch.Bhajan Lal & Ors.,1992 Supp.(1) SCC 335.

19. I have considered the rival contentions of the parties.

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20. The scope of Section 482 Cr.P.C. is very limited and if the FIR discloses commission of a cognizable offence, the Court can only quash the proceedings if the case falls within the categories as laid down by the Apex Court in State of Haryana & Ors. Vs. Ch.Bhajan Lal & Ors. (supra). Sub para (5) & (7) of Para 105 of the said judgment being relevant for the purpose of present petitions is reproduced hereunder:

"5. Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.

7. Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."

21. In Gurumukhdas Vs. State of Rajasthan, 2016 0 Supreme (Raj.) 1086, the Rajasthan High Court has held that it is the statutory right of the police to investigate, where FIR discloses commission of offence, and in such cases, FIR should not be quashed.

22. In Vinod Raghuvanshi Vs. Ajay Arora and Ors., (2013) 10 SCC 581, it was held that while considering the case for quashing a criminal proceeding, the Court should not "kill a still born child" and an appropriate prosecution should not be stifled, unless there are compelling circumstances to do so.

23. In N. Soundaram Vs. P.K. Pounraj, (2014) 10 SCC 616, the Apex court held that the power under Section 482 Cr.P.C.

(11 of 18) [ CRLMP-3783/2016] has to be exercised sparingly and cautiously to prevent abuse of the process of any court and to secure the ends of justice. It is only when no offence is made out that the High Court would be justified in quashing the proceedings under Section 482 Cr.P.C.

24. In Himmat Singh Vs. State of Rajasthan (supra), the Rajasthan High Court held that when there was no material against a particular person, FIR can be quashed qua that person.

25. In the backdrop of the judgments cited at the Bar, I am of the firm view that FIR disclosing a cognizable offence can be quashed only if it is manifestly attended with malafide and instituted maliciously with ulterior motive for wreaking vengeance. If FIR discloses commission of a cognizable offence, then the same should not be quashed, as it is the primary duty of the police to investigate the offence.

26. Reverting to the facts of this case and the various FIRs that have been lodged with regard to the Chairman and officers posted in JDA, suffice to say that during the tenure of the present petitioner-Rajendra Singh Solanki as Chairman of the JDA, certain development works were started and within a short span, the project cost was increased from 100 to 550 times. As per the investigation done so far, no estimate, demand or spade work was done to arrive at the inflated figure.

27. It is also apparent that the works sanctioned for a particular place was not done at that place and the payment was made to the contractors showing the work to be done at the original place. Undoubtedly, the JDA is a statutory Authority and (12 of 18) [ CRLMP-3783/2016] has to work in accordance with the JDA Act, but it is equally true that the money, which is to be spent is public money, and therefore, the officers posted there are under legal obligation to discharge their duty in accordance with law.

28. Section 73 of the JDA Act gives immunity to the Authority in respect of anything lawfully and in good faith and with due care and attention done under the Act. Whether the act was lawfully done, in good faith and with due care and attention, is to be adjudged only after due investigation is done by the Anti Corruption Bureau.

29. Chapter VII of the JDA Act deals with Projects and Schemes. Section 39 of the Act makes a provision with regard to making and contents of Projects and Schemes. Section 40 of the Act authorizes the Authority to resolve and declare its intention to prepare a project or scheme. Section 43 of the Act authorizes the Authority to modify the scheme, but the same can be done only by notification published in the Official Gazette and the Official Gazette should contain a declaration that the project or scheme approved under sub-section (4) of Section 40 is withdrawn. As per sub-section (2) of Section 43, if the Authority, after approval of any project or scheme considers it necessary to make certain modifications therein, which do not materially alter the character of the project and scheme, it may make suitable modifications.

30. The transferring of money from one scheme to another could therefore be done as per the Act, only after an Official Gazette is published declaring the scheme earlier issued as (13 of 18) [ CRLMP-3783/2016] withdrawn. No Gazette notification was published by the Authority before withdrawing any project and the money was sought to be transferred from one scheme to another without any legal authority.

31. In the present case in hand, a Board Meeting was held on 13.08.2013, and as per the allegations in the FIR, only 15 agenda items were kept in the Board Meeting. But when the minutes of the meeting were prepared, the agenda items were increased from 15 to 54, and 39 new agenda items were added without putting the same before the Board Meeting.

32. The Anti Corruption Bureau, during the investigation, has recorded the statement of Bhanwar Singh under Section 164 Cr.P.C., who has stated that the agenda items were increased after the Board Meeting at the behest of the Chairman. He has also deposed that the agenda items were added after 5 to 7 days of the Board Meeting. The statement recorded under Section 164 Cr.P.C. supports the allegation in the FIR that the agenda items were added after the Board Meeting, and the matters which were not discussed in the Board Meeting were also added as Resolutions approved by the Board.

33. As per the investigation done so far, the agenda items which were added after the Board Meeting pertained to increase in the estimate of the development work undertaken by the JDA. These estimates were increased from 100% to 550% without there being any estimate or demand, and were made at the whims of the officers. While increasing the estimate amount, the (14 of 18) [ CRLMP-3783/2016] draft project or scheme was not prepared in accordance with Section 39 of the Act, and the amount sought for a particular scheme, was diverted to some other scheme. The amount was also enhanced for certain development work, even after the work was transferred to some other site, on one occasion, even prior to the approval of the main development project.

34. The contention of counsel for the petitioner that the Board in its next meeting approved the agenda items of the earlier meeting, and therefore, it should be assumed that all the agenda items were approved by the Board, do not appeal to this Court, for the reason that in the meeting, the first agenda item is regarding approval of the minutes of the earlier Board Meeting. It cannot at this stage be inferred that all the agenda items were brought to the notice of the members of the Board. Moreover when the matters were not discussed at the Board Meeting, there was no justification for the Chairman to incorporate the Resolutions without discussion.

35. The contention of counsel for the petitioners that the JDA is an autonomous body and is free to deal with its funds, cannot be disputed. But at the same time, the funds do not belong to the Chairman or the Officers, as it is public money and the petitioners being in custody of public money, are under legal obligation to account for the same, and merely because they have been permitted by the Act to allocate the fund as per their wish, they do not get the power to make payments to the contractors without work being carried out.

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36. The glaring example in this regard is the construction of a road, which was approved at Jhalamand Navdurga Nagar. The initial length of the road was stated to be 8 kms. in the estimate, and accordingly, budget of Rs.1.40 crore was sanctioned. From the investigation done so far, it is revealed that on site, only 1.2 km. stretch was available for construction of a road. For the same road at Jhalamand Navdurga Nagar, the budget was increased by Rs.1 crore in the Board Meeting dated 13.08.2013. On site, no road was constructed, but the measurement book mentioned construction of the road at Jhalamand Navdurga Nagar and Rs.1.25 crore was paid to the contractors. All the persons involved in making plans, approving the amount, asking for more money and approving the measurement book are thus responsible.

37. The contention of counsel for petitioner-Rajendra Singh Solanki that the petitioner demitted the office on 08.12.2013, and therefore, even if any payment has been made on account of construction of the road at Jhalamand Navdurga Nagar, Rajendra Singh Solanki is not responsible, do not have appeal to this Court because initially when the budget was sanctioned for the road at Jhalamand Navdurga Nagar, the same was done during the tenure of Rajendra Singh Solanki, and subsequently, when the budget was increased by Rs.1 crore on 13.08.2013, at that time also, Rajendra Singh Solanki was the Chairman of the JDA.

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38. The other contention of counsel for the petitioners is that development works have been stopped by the new government and out of the original sanction of Rs.250 crores, only Rs.107 crores have been spent, as a result of which development of Jodhpur is affected. The above contention holds no ground as far as deciding the present misc.petitions is concerned, as it is policy decision of the government.

39. The contention of counsel for the petitioners that money allocated for a particular project was shifted to other project, as per the demand of the public representatives and no new tender was invited, as the Authority was competent to get the work done from the contractor at the rate, on which the tenders were earlier approved. The said contention is also not acceptable, since for every development project, a plan has to be approved, the cost has to be calculated and a separate tender has to be invited. The transferring of money from one project to another and increasing the amount and giving the contract to the same contractor were all acts, which were done dehors the power of the Authority.

40. The judgments relied upon by counsel for petitioner- K.K.Mathur also do not have any applicability to the facts of this case, as involvement of the Director (Technical) is made out from perusal of the FIR and he cannot claim protection only on the ground that he was complying with the directions of the Board as it has also come to the notice that for the same site, second tender was invited and the tender was approved by K.K.Mathur.

(17 of 18) [ CRLMP-3783/2016] The estimate was signed by some of the petitioners.

41. Yet another allegation in the FIR is that the estimate was purposely kept below Rs.50,00,000/-, so as to give benefit to certain categories of contractors. As per the provisions prevailing in the JDA, for project upto Rs.15,00,000/- D Class Category of contractors, for project upto Rs.50,00,000/- C Class Category of contractors, for project upto Rs.1.5 crore B Class Category of contractors and for project upto Rs.3 crores A Class Category of contractors can place their bids. The contention of counsel for the petitioners that even if the contract amount was kept below Rs.50,00,000/-, there was no restriction on B Class Category of contractors to compete with C Class Category of contractors do not have any force, as viewing it from other angle, that is, if the contract would have been properly estimated initially, the contract would be more than Rs.50,00,000/-, and therefore, C Class Category of contractors could not have bidded for the same. Giving the contract to C Class Category of contractors and thereafter increasing the budget estimate above Rs.50,00,000/- was clearly an act to give benefit to C Class Category of contractors. As per sub-clause (b) of Section 42 of the RTPP Act, whoever interferes with the procurement process with the intention of causing any unfair disadvantage for any prospective bidder or bidder is guilty. At this stage, since this matter is under investigation, the preliminary report on the basis of which the FIR has been lodged and the ground that the estimate was kept low to give benefit to a particular class of contractors cannot be said to (18 of 18) [ CRLMP-3783/2016] be improbable.

42. From the discussions made hereinabove, it is apparent that these are not the cases where the Anti Corruption Bureau is proceeding against the petitioners malafide with ulterior motive for wreaking vengeance.

43. In view of the law laid down in State of Haryana & Ors. Vs. Ch.Bhajan Lal & Ors., Gurumukhdas Vs. State of Rajasthan, Vinod Raghuvanshi Vs. Ajay Arora and Ors. and N. Soundaram Vs. P.K. Pounraj (supra), no case is made out for quashing the first information reports.

44. Consequently, the present misc.petitions are dismissed. The stay applications also stand disposed.

(PANKAJ BHANDARI)J. Skant/-

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Rajasthan High Court - Jodhpur