Kerala High Court
M.S. Balasubramaniyan vs State Of Kerala on 4 June, 2010
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.HARILAL
THURSDAY, THE 3RD DAYOF OCTOBER 2013/11TH ASWINA, 1935
Crl.Rev.Pet.No. 1961 of 2013 ()
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V.C. NO.19/2010 OF COURT OF ENQUIRY COMMISSIONER AND SPECIAL JUDGE,
THRISSUR.
.......
PETITIONER/COMPLAINANT:
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M.S. BALASUBRAMANIYAN, AGED 42 YEARS,
S/O.KRISHNA IYER, HOUSE NO.29/450,
KUNNATHU LANE, THIRUVAMBADI,
THRISSUR-680 001.
BY ADV. SRI.B.RAMACHANDRAN.
RESPONDENTS/STATE AND ACCUSED:
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1. STATE OF KERALA,
REPRESENTED BY DEPUTY SUPERINTENDENT OF POLICE,
VIGILANCE AND ANTI-CORRUPTION BUREAU,
THRISSUR-680 001.
2. P. REMANI, AGED 57 YEARS,
D/O.JANAKIAMMA, SECRETARY,
COCHIN DEVASWOM BOARD,
THRISSUR-680 001.
3. U. GOVINDANKUTTY, AGED 57 YEARS,
(FATHER'S NAME NOT KNOWN TO THE PETITIONER),
DEPUTY COMMISSIONER, COCHIN DEVASWOM BOARD,
THRISSUR-680 001.
4. RAJENDRA PRASAD, AGED 50 YEARS,
FATHER'S NAME NOT KNOWN TO THE PETITIONER),
DEPUTY SECRETARY, COCHIN DEVASWOM BOARD,
THRISSUR-680 001.
5. SHYMOL C.VASU, AGED 42 YEARS,
FATHER'S NAME NOT KNOWN TO THE PETITIONER),
LAW OFFICER, COCHIN DEVASWOM BOARD,
THRISSUR-680 001.
6. RAJALAKSHMY,AGED 54 YEARS,
FATHER'S NAME NOT KNOWN TO THE PETITIONER),
THRISSUR GROUP ASSISTANT COMMISSIONER,
COCHIN DEVASWOM BOARD, THRISSUR-680 001.
7. MOHANAN.P.,
AGE AND FATHER'S NAME NOT KNOWN TO THE PETITIONER),
DEVASWOM SPECIAL TAHSILDAR,
DEVASWOM QUARTERS, VADAKECHIRA, THRISSUR-680 020.
Crl.Rev.Pet.No. 1961 of 2013
8. SHEEJA, AGED 38 YEARS,
W/O.ANIL KUMAR, FORMER DEVASWOM OFFICER,
POONKUNNAM DEVASWOM, COCHIN DEVASWOM BOARD,
THRISSUR-680 001.
9. BIJU P.B.,
(AGE AND FATHER'S NAME NOT KNOWN TO THE PETITIONER),
DEVASWOM OFFICER, POONKUNNAM DEVASWOM,
THRISSUR-680 020.
10. T.G. RAVEENDRANATH, AGED 59 YEARS,
S/O.GOVINDAN EZHUTHACHAN,
FORMER DEVASWOM BOARD PRESIDENT,
THATTAMPARAMBIL HOUSE, MOORKANIKKARA,
THRISSUR-680 751.
11. K.K. MOHANAN, AGED 62 YEARS,
FATHER'S NAME NOT KNOWN TO THE PETITIONER),
FORMER MEMBER, COCHIN DEVASWOM BOARD,
KALLELI HOUSE, NJARANTHURUTHU,
TRIPUNITHURA, ERNAKULAM-682 301.
12. RUKUMANI AMMA, AGED 69 YEARS,
(FATHER'S NAME NOT KNOWN TO THE PETITIONER),
FORMER MEMBER, COCHIN DEVASWOM BOARD,
MAINAGAM HOUSE, NEAR DEVI NURSING HOME,
TRIPUNITHURA, ERNAKULAM-682 301.
13. MOHANAN. V.A., AGED 59 YEARS,
(FATHER'S NAME NOT KNOWN TO THE PETITIONER),
FORMER DEVASWOM SPECIAL TAHSILDAR,
VATTOLIPARAMBIL HOUSE, MUPLIYAM, THRISSUR-680 021.
14. ANIL KUMAR, AGED 40 YEARS,
(FATHER'S NAME NOT KNOWN TO THE PETITIONER),
DEVASWOM SURVEYOR,
OFFICE OF THE DEVASWOM SPECIAL TAHSILDAR,
DEVASWOM QUARTERS, VADAKKECHIRA,
THRISSUR-680 020.
15. SUBRAMANIYAN, S/O.RAMAN NAMBOODIRI,
(AGE NOT KNOWN TO THE PETITIONER),
MAMPAULLI MANA, KUNNATH LANE,
THRISSUR-680 001.
R1 BY PUBLIC PROSECUTOR MR.LIJU V.STEPHEN.
THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION
ON 03-10-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
rs.
Crl.Rev.Pet.No. 1961 of 2013
APPENDIX
PETITIONER'S ANNEXURES:-
ANNEXURE A1 COPY OF THE PROPERTY REGISTER PREPARED BY
INTERNAL AUDIT OFFICER, COCHIN DEVASWOM BOARD
DATED 04/06/2010.
ANNEXURE A2 COPY OF THE COMPLAINT DATED 25/08/2009 NUMBERED
AS 545/2009 OF THE PETITIONER.
ANNEXURE A3 COPY OF THE ORDER DATED 09/09/2009 IN CMP. NO.545/2009.
ANNEXURE A4 COPY OF THE QUICK VERIFICATION REPORT
DATED 29/12/2009 OF DEPUTY SUPERINTENDENT,
VIGILANCE AND ANTI-CORRUPTION BUREAU, THRISSUR.
ANNEXURE A5 COPY OF THE LETTER DATED 10/03/2010 OF THE
DIRECTOR, VIGILANCE AND ANTI-CORRUPTION BUREAU.
ANNEXURE A6 COPY OF THE COMMON ORDER DATED 05/05/2010 IN
CMP. NO.545/2009 AND CMP. NO.554/2010.
ANNEXURE A7 COPY OF THE REPORT NO.70/2011 DATED 12/04/2011.
ANNEXURE A8 COPY OF THE FACTUAL REPORT DATED 31/03/2012
FILED BY DEPUTY SUPERINTENDENT, VIGILANCE
AND ANTI-CORRUPTION BUREAU, THRISSUR.
ANNEXURE A9 COPY OF THE FINAL REPORT DATED 15/12/2012.
ANNEXURE A10 COPY OF THE OBJECTION DATED 23/02/2013 FILED
BY THE PETITION.
ANNEXURE A11 COPY OF THE ORDER DATED 20/07/2013 IN V.C. NO.19/2010.
RESPONDENT'S ANNEXURES:- NIL.
//TRUE COPY//
P.A. TO JUDGE
rs.
K.HARILAL, J.
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CRL.R.P.NO.1961 OF 2013
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Dated this the 3rd day of October, 2013
ORDER
The Revision Petitioner is the complainant in VC No.19 of 2010 on the files of the Enquiry Commissioner and Special Judge, Thrissur. The above case was registered on the direction of the Enquiry Commissioner and Special Judge Thrissur on 09/09/2009 in Crl.M.P.No. 545 of 2009 filed by the de facto complainant. That was a complaint against 14 counter petitioners, of which counter petitioners 1 to 13 are functionaries of Cochin Devaswom Board including its former president, members, special Tahsildar and Surveyor etc. The 14th counter petitioner is a private person against whom allegation of encroachment into Devaswom land are alleged by the complainant. Going by the complaint it is seen that the complainant claims that he moved the court for a common cause with the noble intention of preserving the Devaswom land which is under encroachment of private individuals like 14th counter CRL.R.P.NO.1961 OF 2013 2 petitioner. According to him, Kurukulam Kottaram temple which is under the Administrative control of the Poonkunnam Devaswom under Cochin Devaswom Board owns 90 cents of land in survey No.1552/2-3-4. But, the counter petitioners have not given appropriate attention for preserving the property. Though numerous encroachments were reported, the functionaries of Devaswom Board failed to act against such illegalities; but having facilitated the trespassers. The property situated in Thrissur town may fetch Rs.15 Lakhs per cent. Now various persons have encroached the property and reduced the portions of the same into their possession and subsequently, they have made several transactions under several documents. The specific allegation against the counter petitioners 1-13 is that the counter petitioners who are duty bound to abate such encroachment by taking a proper action have not taken any action and thereby they failed to prevent such illegalities; whereas they have taken a stand promoting the interest of the CRL.R.P.NO.1961 OF 2013 3 encroachers so as to put up buildings and apartments in the property. Thus the counter petitioners have committed the offence punishable under Section 13(1)(d) of the Prevention of Corruption Act, 1988. On receipt of the complaint, an investigation under Section 156(3) was ordered and after the investigation the investigating officers filed a refer report stating that no offence has been made out against the counter petitioners. The final report was challenged by the complainant by filing a detailed objection. Thereafter, the Revision Petitioner had been given an opportunity to address at the Bar, on the final report, in view of his objection. After hearing, the learned Magistrate accepted the final report and closed the proceedings. This order is under challenge in this Revision Petition.
2. The learned counsel for the Revision Petitioner submits that the impugned order is illegal, unsustainable and liable to be interfered under the revisional jurisdiction of this Court. Inspite of the clear indication of dereliction CRL.R.P.NO.1961 OF 2013 4 of duty unfolded by Annexure A4 and A5, the refer report was filed for dropping prosecution and thereby the respondents escaped from the clutches of law. The court below ought to have rejected the refer report and proceeded to prosecute the respondents/counter Petitioners. The learned counsel further submits that the respondents 2 to 14 who are duty bound to abate the encroachments have not only failed to prevent it but closed their eyes which resulted in encroachers demolishing the old structures in the temple property and constructing the building, even flats and apartments in the property. Thus the act allegedly committed by the respondents 2 to 14 discloses a criminal misconduct which is liable to be prosecuted under Section 13(1)(d) read with 13(2) of the Prevention of Corruption Act.
3. In view of the submission at the Bar, the only question to be considered is whether there is any illegality of impropriety in the impugned order accepting the refer report. Put it differently, the question is whether the CRL.R.P.NO.1961 OF 2013 5 allegations in the complaint as well as the evidence unearthed in the investigation under 156 (3) disclose the offence under Section 13(1)(d) of the Prevention of Corruption Act.
4. Going by the impugned order it could be seen that the specific allegation raised against the respondents is that the properties of the Devaswom Board have been encroached by several encroachers including the 14th respondent and thereafter they illegally made several transactions in favour of subsequent purchasers and also made huge constructions including flats. But the respondents 2 to 13 who are legally bound to takes steps to preserve property of the Devaswom have not taken any steps against the encroachers and instead of it, they have taken a stand promoting the interest of encroachers. They are also trying to mask such illegal activities of the encroachers.
5. In this context it is profitable to have a look at Section 13(1)(d) of the Prevention of Corruption Act. CRL.R.P.NO.1961 OF 2013 6 Section 13(1)(d) reads as follows. " A person is said to commit a criminal misconduct if he by illegal or corrupt means, obtain for himself or for any other person any pecuniary advantage or valuable thing or doing the same thing by abusing his position, or doing the same thing without any public interest." Going by the Section it is seen that an act with dishonest intention to obtain for himself or for any other person any valuable thing or pecuniary advantage is a statutory requirement to attract offence under Section 13(1)(d). It is true that the pecuniary advantage or valuable thing need not to be obtained by the public servant; but if he causes to obtain such valuable thing or pecuniary advantage by any other person by his act with that dishonest intention is also sufficient to attract the said offence. But here, going by the complaint itself I am of the opinion that even if the allegations are taken at its face value and accepted that do not disclose an offence under Section13(1)(d) of the Prevention of Corruption Act. A public servant may CRL.R.P.NO.1961 OF 2013 7 commit several wrongs for various reasons. He may commit a wrong by negligence, by carelessness or callousness or with the lack of knowledge or law or procedure, which may amount to the dereliction of duty. Thus so all wrongs committed by a public servant while discharge of his duty will not come under the offence under Section 13 (1)(d) unless an act with dishonest intention to obtain for himself or for any other person any pecuniary advantage or valuable thing or obtains for any person such things without public interest, is made out.
6. Going by the impugned order, it is seen that the final report shows that no document is available to find out the exact extend of land owned by the Kurukulam Kottaram. The only existing document is the 'Thanathu Register' which shows that the Kottaram has 90 cents of land, 66 cents of land in survey No.1552/2 and 24 cents of land in survey No.1552/3. But there is no corresponding village records to show that Kurukulam CRL.R.P.NO.1961 OF 2013 8 Kottaram has so much extend of land as claimed by the complainant in the complaint. The village records only shows the 28.5 cents of land, 3 cents in survey No. 2849, 24 cents in survey No.1552/3, 0.5 cent in 1552/7 and one cent in survey No.1552/8 in the possession of the Kurukulam Kottaram. Thus, the final report shows that there is no document in existence to prove that the Punkunnam Devaswom owns 90 cents of property in survey No.1552/2,3,4 as claimed by the complainant.
7. Another allegation against the respondents is that they have not taken steps to curb encroachment and also to proceed against those who have already encroached the Devaswom property. It is reported in the final report that the officer competent to eject illegal occupation is the Special Tahsildar, Cochin Devaswom Board and in investigation, it is revealed that the he has already initiated proceedings for ejecting the encroachments. Then 14th respondent moved the High Court with a writ petition and obtained an order for CRL.R.P.NO.1961 OF 2013 9 hearing him against the order of Special Tahsildar. Later, he was heard, Special Tahsildar passed an order rejecting his plea. Against that order he moved RDO with an appeal. After the dismissal of the appeal, a revision has been filed before the District Collector and that Revision is now pending. According to the DYSP, now the matter is pending before the District Collector and that dispute is civil in nature. It is also found out in investigation that those encroachments were not recent encroachment and the encroachments were made long years back.
8. Thus the investigation shows that there is no material to make out a prima facie case that the respondents with a dishonest intention by correct or illegal means or by abusing their position as public servants acted to obtain for himself or any other person any pecuniary advantage or valuable thing or acted without public interest. In the above contest, even if the allegations are accepted at its face value, it can be said that the respondents were negligent in discharging their CRL.R.P.NO.1961 OF 2013 10 duty or they committed the dereliction of duty. Needless to say, this will not come under Section 13(1)(d) of the Prevention of Corruption Act 1988. There is no illegality or impropriety in the impugned order. I do not find any perversity in the appreciation of the final report. I make it clear that the above findings are made on the basis of the averments in the present complaint and final report made thereunder only.
This Revision Petition is dismissed.
Sd/-K.HARILAL JUDGE MJL