Karnataka High Court
K.V. Amarnath vs The Director, Central Bureau Of ... on 18 December, 1998
Equivalent citations: 1999CRILJ1558, 1999(4)KARLJ247
Author: R.P. Sethi
Bench: R.P. Sethi, Mohamed Anwar
ORDER R.P. Sethi, C.J.
1. Without impleading him as party respondent but alleging corruption, favouritism and nepotism against Sri H.D. Devegowda, former Prime Minister of India, the petitioner herein has attempted to ignite the process of law by invoking action under Articles 226 and 227 of the Constitution of India, apparently under the patent name of Public Interest Litigation. Prayer has been made for issuance of a writ of mandamus directing the respondents to register a criminal case in the matter of offences allegedly committed by former Prime Minister and his family members which are stated to be punishable under the provisions of the Prevention of Corruption Act and the Penal Code. The jurisdiction of the Court has been invoked for the alleged failure of the respondents to take any action on the memorandum at Annexure-A submitted by the petitioner on 10-12-1996 when Shri H.D. Devegowda had become the Prime Minister. The omission on the part of the respondent to take action is alleged to be non-performance of their statutory obligations. Powers of the Court for issuance of appropriate directions have been prayed in the name and furtherance of cause of justice and equity and for strengthening the rule of law.
2. The petitioner claims to be a social worker and a life member of Karnataka a Bhrashtachara Virodhi Vedike committed consistently in exposing the authorities for their misdeeds and colossal corrupt practices of responsible political leaders and public servants in the country. Sri H.D. Devegowda is alleged to have become a member of the State Assembly for the first time in the year 1962 when he owned 3 acres of dry land in Survey No. 13 of Hardanahalli Village. Misusing his power as a MLA, the said Sri Devegowda is alleged to have indulged in the illegal acts of land grabbing by getting several Government lands granted to him and to his relations. It is conceded that he was continuously elected as a MLA till the year 1989. He became a Minister in the Cabinet of Sri Ramakrishna Hegde in the year 1983 and continued as such till the year 1988. He became the member of the Parliament in the year 1991. It is submitted that during the long period when he was holding public offices, Sri Devegowda had acquired properties disproportionate to his known sources of income in his name and in the names of his sons, daughters, daughters-in-law and other relations. The petitioner states to have submitted a complaint dated 10-12-1996 at Annexure-A to the respondent 1 with prayer for registering a case and taking appropriate action. No action is reported to have been taken by respondent 1 allegedly on account of the influence of Sri Devegowda who is stated to be the Prime Minister of India at the relevant time. After he ceased to be the Prime Minister, the petitioner claims to have sent another complaint to the successor of respondent 1 for taking appropriate action but with no response. It is alleged that the allegations detailed in the complaint are of serious nature showing the commission of cognizable offences. The petitioner has furnished the details of properties alleged to be owned and possessed by the said Sri H.D. Devegowda and his four sons who are also stated to be holding public offices. The properties are claimed to be in the names of the aforesaid persons or in the names of their relations and friends. The details of such property furnished by the petitioner are as under:--
I. A palatial house with ground and first floor bearing No. 137/1, Palace Upper Orchards, Sadashivanagar, Bangalore. The measurement of this site is 129' x 179'. The value of this building most conservatively arrived at by recognised and registered property assessors is around Rs. 3.5 to 4 crores. Copy of the sanctioned plan accorded by the Municipal Authorities of Bangalore is enclosed and marked as Annexure-G. (Properties valued about Rs. 4 crores).
II. A plot of land within Kamehahalli Village, Halekote Hobli, Holenarasipura Taluk, Hass an District, having an area of 20 acres in Sy. No. 68. This stands in the name of H.D. Devegowda and his aunt Nanjamma, wife of Subbegowda, paternal uncle. The entire extent of this land is serviced by supply of water from Hemavathi Reservoir Project. The approximate value is to the tune of Rs. 20 lakhs at the rock bottom rate. The record of rights of this property is enclosed herewith and marked as Annexure-H. (Properties valued about Rs. 25 lakhs).
III. A plot of land measuring 11.22 acres in the limits of Mare-gowdanahalli, Holenarasipur taluk, Hassan District in Sy. No. 153 got in the name of Chennamma, wife of H.D. Devegowda marked as Annexure-J (Properties valued about Rs. 40 lakhs.) IV. In the limits of Maragowdenahalli, Sy. No. 152, an area of 12.27 acres has been acquired in the name of H.D. Ramesh the fourth son of Shri H.D. Devegowda vide Annexure-K (Properties valued about Rs. 48 lakhs,) V. Similarly another plot of land of an area of 8 acres in Sy. No. 44 of Padavalahippe Village, Holenarasipur Taluk, is acquired in the name of Chennamma, wife of Sri H.D. Devegowda vide Annexure-L. (Properties valued about Rs. 40 lakhs).
VI. A similar plot of land having an area of 5.37 acres in Sy. No. 43 of Padavalahippe Village has been acquired in the name of Chennamma, wife of H.D. Devegowda vide Annexure-M. (Properties valued about Rs. 30 lakhs.) VII. In a neighbouring Sy. No. 29 of Hardur Village, an area of 5.20 acres has been acquired in the name of H.D. Revanna - vide Annexure-N. (Properties valued about Rs. 25 lakhs.) VIII. In another Sy. No. 28 of same Hardur Village, 2.30 acres has been acquired in the name of H.D. Revanna vide Annexures-0 and O1. (Properties valued about Rs. 12 lakhs.) IX. In the same Village limits of Sy. No. 29, 4.30 acres was acquired in the name of H.D. Revanna vide Annexure-P. (Properties valued about Rs. 20 lakhs.) X. In the same Village limits in Sy. No. 14, an area of 3.28 acres has been acquired in the name of H.D. Revanna vide Annexures-Q and Ql. (Properties valued about Rs. 16 lakhs.) According to the petitioner the aforesaid persons are to be prosecuted for acquiring 130 acres of land. The lush green farm house stated to have been built at a huge cost is claimed to be a show-piece of the area attracting universal attention of the entire district. Sri Devegowda is further alleged to have illegally acquired huge area of 40 acres of gomal land in Sy. No. 1 in the name of his brothers. It is further alleged that he has got 20 acres of land in Sy. No. 63 allotted in the name of his uncle. Land measuring 5 acres in Sy. No. 217/4 of Hariharapura Village, Halekote Hobli, Holenarasipura Taluk is stated to have been purchased from one Sri Ninge Gowda and land measuring 2.33 acres in Chakenahalli from Mijra Mohammed Tique in the name of Sri Devegowda and his wife respectively. An area of 2.30 acres in Sy. Nos. 149/1, 249/2, 153/2 and 261/4 is alleged to have been acquired in violation of the provisions of the Land Reforms Rules and the Act, where a huge cinema theatre under the name "Channambika" is stated to have been constructed. Another huge BCC building valuing about Rs. 50 lakhs is also alleged to be under construction nearby the aforesaid theatre. Similarly land bearing 2.12 acres in Sy. No. 253 situated in some municipal limits is stated to have been acquired from one Sri Narasimha Sbetty despite the fact that the aforesaid land was meant for agricultural purposes and was got converted illegally. Site No. 17/3 is stated to have been acquired in the name of Sri H.D. Kumara Swamy, Site No. 353/1 in the name of Smt, H.D. Shailaja, his daughter from the City Improvement Trust Board, Mysore in the year 1984. In addition, Sites Nos. 108, 201, 33/J, 1799, 910, 1800, 119/B, 726/H, 355/5, 1195, 1798, 1030, 143/G, 149/H, 149/G, 143/F, 211 and 726/G and a dozen and odd more sites are alleged to have been acquired by him in the names of his close relations regarding which Smt. Shantha Kumari Devaraj, the then Divisional Commissioner, Mysore is stated to have conducted enquiry at the instance of the Government and submitted her report dated 17-1-1991 holding that Sri Devegowda was guilty of cognizable malfeasance in getting land to himself and his family members. Sri Devegowda is further accused of having acquired sites in the names of Smt. Puttamma, sister, H.B. Suresh, a student (brother-in-law), H.J. Vishwanath, nephew, H.J. Nalini - niece, Pramila-niece, Susheelamma, wife's brother and others by putting official pressure and influence in his capacity as a Minister in the State Government. The said Sri Devegowda is charged of having acquired further following items of properties.-
1. 'Nikhil Petrol Bunk' at Padmanabhanagar, Bangalore.
2. Another petrol bunk at Kengeri.
3. Mylareshwara Petrol Bunk at Mysore-Hassan Road.
4. Another petrol bunk at Hassan Industrial Estate.
A petrol bunk of the IOC was got allotted in the discretionary quota to Smt. Anitha, his daughter-in-law. The site on which the petrol bunk is operating measures 140' x 60' where a huge BCC building is stated to have been constructed. Another huge BCC building bearing No. 1275 on Puttalingaiah Road, Padmanabhanagar, Bangalore City is stated to have been acquired in the name of his fourth son namely Sri Dr. Ra-mesh. Another building, few metres away from the petrol bunk and a nursing home in the name of Smt. H.D. Anusuya is also alleged to have been acquired illegally. Another two storeyed building bearing No. 12 is alleged to have been acquired in the name of Sri H.D. Balakrishnagowda who is a Deputy Commissioner and relative of the said Sri Devegowda. About 200 metres away from that building another two storeyed BCC building located in No. 73 of C.J. Venkatadasa Road is alleged to have been acquired by him in the name of his second daughter. In the same vicinity another posh building bearing No. 41/70 is stated to have been acquired in the name of Smt. Savithri, his sister-in-law. Another building is stated to be under construction at Site No. 286, 2nd Main in J.P. Nagar, 3rd Phase facing the mini forest planted with Nilgiri trees. This construction is alleged to be carried on by Sri H.D. Kumaraswamy, his son. Another site in J.P. Nagar locality is stated to have been acquired in the name of Sri H.D. Revanna, his son and a Minister. Such land is alleged to have been acquired by putting pressure on the J.P. Nagar Club. Another petrol bunk is also alleged to have been procured by asserting influence upon the then Petroleum Minister Captain Sathish Sharma. This allotment is claimed to have been manipulated in the name of Kumari Sangeetha, the younger sister of the sister-in-law of Sri H.D. Devegowda. He is accused of having acquired huge properties at Hassan town, the details of which have been stated as under:--
(i) Urban site bearing No. AR 163 (New No. 271) at Hassan relating to Khata No. 282 measuring 90' x 93' was purchased for Rs. 9.80 lakhs from a mysterious lady called Mary (popularly as mysterious Mary) in the name of Smt. Rathnamma, wife of Sri H.D. Puttaswamy. Sri H.D. Puttaswamy referred to is none other than the brother-in-law (wife's younger brother). Sri H.D. Puttaswamy hails from Hiralli Village, Hassan Taluk and a petty agriculturist having no holding worth reckoning. His agricultural income is hardly anything and they are in a state of hand to mouth existence. The site mentioned above is a prime property located on National Highway in the commercial hub and heart of the town whose local value is estimated to be nothing short of Rs, a crore and 25 lakhs. The said prime land is undervalued by 125 times below the present value and evaded stamp duty to the tune of several lakhs for purposes of sale deed. It is further very relevant to point out that this urban area which was formerly a burial ground for Christians and as such had to remain as public property without any alienation to private persons. The authorities of Church of South India had been given this land to the supervision of husband of Mary to look after burial arrangements. Sri H.D. Devegowda aided and abetted by H.D. Puttaswamy brought to bear pressure on the surviving wife of the said deceased caretaker namely Ignacious alias Agnews, wife of William Markose and her son Joseph Sebastin alias Babu to sell the said land. The local registration and Municipal and Revenue authorities have colluded as silent participants in this nefarious deal. The documents relating to these are enclosed and marked as Annexure-AA.
(ii) A MIG house B.No. 27 AR 329 located at Karnataka Housing Board colony at Hassan for the amount prescribed by KHB in the name of the same lady Rathnamma, wife of Sri H.D. Puttaswamy, brother-in-law of Sri H.D. Devegowda.
(iii) One more KHB MIG house B.No. 59, AR No. 327 was acquired in the name of Sri H.D. Puttaswamy, brother-in-law of H.D. Devegowda. The KHB records would confirm these acts as the petitioner is pleading his inability to have access to these records in view of the fact the present incumbent KHB President Sri H.D. Devegowda, L.R. Shivaramegowda believed to be a distant relative is the first subordinate of Sri H.D. Revanna, the present Housing Minister and son of H.D. Devegowda.
(iv) In yet another instance of manipulated grabbing relates to acquisition by purchase of a huge extent of 10 acres in the urban area located in Sy. Nos. 64/25, 64/24 and 69/10 situated within the peripheries of the District headquarters town of Hassan. This is a prime property around which a new extension is fast developing. The approximate value of this valuable property is nothing short of Rs. 1.00 crore. The acquisition is made ostensibly in the name of Sri H.D. Puttaswamy, the trusted brother-in-law of H.D. Devegowda and maternal uncle of Sri Revanna, the second son of H.D. Devegowda.
(v) Yet another acquisition by purchase of a huge house property facing the Sandalkota, on the Apoorva Hotel road, belonging to one late D.C. Anantha Swamy for Rs. 8 lakhs again in the same name of trusted brother-in-law Sri H.D. Puttaswamy.
(vi) One more acquisition by purchase in the name of Sri H.D. Puttaswaniy, brother-in-law of H.D. Devegowda relates to house from one Shri Suresh, a Junior Grade Officer in the Indian Bank at Hassan.
(vii) One more acquisition by purchase in the name of Sri C. Ravichandra, nephew of H.D. Devegowda is Sy. No. 155 at Maragondanahalli having an area of 2.10 acres for Rs. 1.30 lakhs. The relevant sale deeds dated 24-4-1997 are enclosed and marked as Annexure-BB.
Another landed property is stated to have been developed into an agricultural farm in Bidadi in the name of Smt. Savitramma, w/o late Hanumegowda. Various other properties within the limits of Katagonahalli, Ramanagar Taluk are stated to have been usurped by exercising political pressure upon the poor harijans. He is also accused of possessing moveable properties in the shape of luxury cars, trucks, tractors and family house-hold jewellery, etc., valued at Rs. 1 crore. 30 to 40 acres of arable dry land in the limit of Egatipura Village is also stated to have been acquired by illegal means. Petitioner further claims to have received information regarding acquisition and usurpation of 100 acres of land near Kollur, Dakshina Kannada District, next to Mookair bika Temple. He is alleged to have managed to stumble into a few documents, which according to the petitioner throw a flood of revealing evidence in regard to the state of poverty and economic helplessness during the days of yore. In support of the allegations made in the petition, some documents have also been produced.
3. In their objections, respondents 1 and 3 have submitted that the averments made in the petitioner's contention that he had filed a complaint on 10-12-1996 was not within their knowledge. However, the complaint dated 12-7-1997 is admitted to have been received which was processed by the CBI. As the matter pertained to the former Prime Minister, the same was referred to the Government on 12-8-1997 seeking instructions, in conformity with the then prevailing conditions. In the absence of appropriate directions from the Government of India, the respondent 1 could not take any step with regard to the aforesaid complaint. The aforesaid respondents have contended that they were not aware of the details of the properties held by Sri Devegowda and his family members. They also claimed not to be aware of the activities of acquisition of land by Sri Devegowda and his family members at different times. They are also not aware about the alleged enquiry conducted by Smt. Shanthakumari Devaraj and her report. With regard to the allotment of petrol bunk to Smt. T.S. Anitha, w/o Sri H.D. Kuma-raswaray on the recommendations of Sri H.D. Devegowda, the matter is stated to have been dealt with by the Hon'ble High Court of Delhi in CWP No. 4003 of 1995 without giving any directions to the CBI for investigation. The allotment of petrol bunk is stated to have been cancelled by the High Court of Delhi. The CBI has submitted that it was facing a huge shortage of manpower and was not in a position to register all the cases and investigate them. They have further contended that if this Court directs the CBI to take up the investigation, in that event the directions should also be issued to the Government of Karnataka to provide 1 DCP, 3 Inspectors with experience of having worked or working in Karnataka Lokayukta, to be selected by the CBI on temporary attachment basis, with facility of vehicle and accommodation, for speedy completion of investigation.
4. In the statement of objections filed on behalf of respondent 2, State of Karnataka, it is submitted that the allegations made in the petition were vague, ambiguous and incorrect. It is further submitted that the allegations of the petitioner that the investigating agency of the State Government could not have made a fair investigation was not correct. It is contended that the prayers made in the writ petition cannot be granted in law as declared by the Supreme Court in various pronouncements. The settled law according to the said respondent is that the petitioner cannot seek writs for prosecution of a person or persons. The writ petition being misconceived is claimed to be not maintainable and liable to be dismissed.
5. We have heard the arguments of the learned Counsel appearing for the parties at length and perused the record including the documents produced by the petitioner. The learned Advocate General appearing for the respondents has submitted that the writ petition was not maintainable for non-joinder of necessary parties as according to him no directions can be issued against the respondents in the absence of the Union of India and the persons sought to be prosecuted for the offences alleged to have been committed by them. It is contended that in the absence of the aforesaid persons, it is not possible to ascertain the correctness or otherwise of the bald allegations made by the petitioner. The prayer of the petitioner for issuance of a writ of mandamus is claimed to be misconceived both on facts and under law. It is submitted that in the absence of the existence of a right and a corresponding obligation upon the respondents, no such writ can be issued. It is argued that the present writ petition is motivated and filed at the instance of the political rivals of Sri H.D. Devegowda. The writ petition is claimed to be one in the series of such mala fide petitions filed against the aforesaid Sri Devegowda. The present petition is prayed to be dismissed as being not maintainable in view of the general principles of res judicata particularly constructive res judicata. It is pointed out that other writ petitions claiming similar reliefs had already been dismissed by this Court. The details of such writ petitions being W.P. No. 15287 of 1998, W.P. No. 7259 of 1993, W.P. No. 14281 of 1996, W.P. No. 17333 of 1996, W.P. No. 16465 of 1996 and W.P. No. 18794 of 1997. It is further claimed that the writ appeals bearing No. 5943 of 1997, No. 6974 of 1996 and 7903 of 1996 filed against some order passed in W.P. No. 14281 of 1996 have already been dismissed. The present writ petition is further claimed to be mala fide inasmuch as the same was chosen to be filed at a time when Sri Devegowda had ceased to be the Prime Minister of India. It is further contended that as the petitions have been filed after a prolonged and unexplained delay, the same deserves dismissal. Otherwise the allegations made in the petition are stated to be general, vague, ambiguous, contradictory and unfounded not even prima fade, supported by reliable evidence. The petitioner is stated to have ignored even to mention the dates when the properties detailed by him are alleged to have been wrongfully acquired by the family members of Sri H.D. Devegowda. None of the allegations made in the petition disclose the commission of any cognizable offence, much less an offence under the Prevention of Corruption Act.
6. Principles incorporated under Order 1 of the CPC pertaining to joining of the parties are generally applicable to the writ petitions also. It is therefore mandatory that all persons who are likely to be affected by the order passed in the petition should be impleaded as parties in the proceedings. Admittedly, such persons are necessary parties against whom relief is sought and in whose absence no effective decisions can be rendered by the Court. In the absence of a necessary party the petition is liable to be dismissed particularly when despite objection the petitioner does not take any steps to implead such party as a party in the proceedings. In cases where it is found that the necessary parties are large in number, the Court in its discretion can permit such parties to be impleaded in a representative capacity. In the instant case the respondents have levelled serious allegations of corruption and other acts of malfeasance and nonfeasance against Sri H.D. Devegowda and the members of his family without impleading any one of them as party respondent in the case. Reference is made to various properties allegedly illegally acquired to be registered against all such persons which is likely to not only adversely affect their proprietory rights but also their reputation, respect and regard which they enjoy in the society on account of the constitutional positions held by one of them. There is no gainsay that mere presentation of a case of alleged misappropriation, fraud and corruption would expose the aforesaid persons in the society and they would be subjected to not only mere harassment of investigation but suffer the agony and mental torture of being publicly exposed with respect to a matter admittedly not favoured by a common man in the society. The aforesaid persons would thus incur the wrath of law without even compliance of basic principles of natural justice. We are of the opinion that under the circumstances prevalent in the society, the allegations made in the petition, the manner and method under which the present writ petition has been initiated and the effect of the likely orders sought to be passed leaves no doubt for us to hold that Sri Devegowda and his family members are the necessary parties and even if all of them are not impleaded as such, one of them should have been impleaded as a party in the representative capacity to assist the Court in finding out the truth about the allegations made against them. Despite the objections raised by the respondents during the arguments spread over a number of days, the petitioner has neither prayed nor taken any step to implead any one of such persons to be a party respondent in the case. The present petition, therefore, cannot proceed in the absence of necessary parties.
7. It may further be noticed that the complaint at Annexure-A is shown to have been filed with the respondent 1, admittedly a representative of the Union of India. The respondents 1 and 3 have specifically stated in their objections that without specific orders from the Union of India they were not in a position to initiate any action against the persons sought to be prosecuted. In a case where an employee of the Railways who was removed from service filed a writ petition in the High Court against the General Manager without impleading the Union of India as party respondent, the writ petition was dismissed only on the ground of not impleading Union of India as a party respondent in the case. The employee approached the Hon'ble Supreme Court by way of special leave which was granted to determine as to whether the Union of India was a necessary party in that case or not. It was argued on behalf of the employee that the General Manager being the authority to hear the matters regarding removal was the only appropriate party. Reliance was placed upon Hari Vishnu v Ahmad Syed and Observer Publications (Private) Limited v Railway Board . After observing that the appellant before the Court was a servant of the Union and had been removed from the service of the Union Government, the Court held:--
"Mr. Shankar, for the respondent-Board urges that the railway platforms where the ban has been imposed are the private property of the Railway administration and no one has a right to question its decisions. Railway platforms are as much private property as any other highway in the town and this shield against the attack made by the petitioner cannot be availed of".
There is, therefore, substance in the submission of the Advocate General regarding non-impleading the necessary parties, rendering the petition liable to be rejected. However, as we have heard the detailed arguments on merits, we do not propose to dismiss this petition merely on this technical ground.
8. In order to succeed in seeking the directions issued in the form of mandamus, the petitioner is under an obligation to show the existence of conditions precedent to the issuance of such a command. The existence of a legal right in favour of the petitioner and a corresponding legal duty upon the respondent is the basis for invoking the jurisdiction of this Court for the issuance of writ of mandamus. The duty enjoined upon the respondents as contemplated for the purpose of the issuance of a writ of mandamus may be either imposed by the Constitution, or a statute or by rules or by orders having the force of law. However, for the enforcement of the contractual obligations no writ of mandamus can be issued. Mandamus does not lie to enforce departmental manuals and instructions not having any statutory force. The writ of mandamus is of very ancient origin acknowledged to be dating back to the time of Edward II, the ruler of England.
9. A Division Bench of Allahabad High Court in Purshottam Dass Tandon and Others v State of Uttar Pradesh, while tracing the history and dealing with the object and principles of writ of mandamus held:--
"Relief of mandamus is granted where no other remedy is available. 'The order of mandamus is an order of a most extensive nature'. It was introduced, to prevent disorder from a failure of justice'. Abuse of discretion is abominable to our system of law. One of the primary purposes of Courts entrusted with responsibility of enforcing Constitution is to control and remedy the injustice arising out of intentional act or accidental omission resulting at times in depressing deficiency and frustrating government policy, the success or failure of which largely depends on honesty and sincerity of its officials. The Courts by controlling or remedying abuse of discretion do not assume power for themselves but effect salutary restraint to promote cause of justice and maintain rule of law. Even in England theory of prerogative power has been exploded and law's arms to reach into its sphere has been accepted. Lord Dublin in Chandler v D.P.P., (1964) AC 163, Lord Denning in Laker Airways Limited v Department of Trade, (1977) QB 643. To argue therefore, that this Court even if it finds injustice arising due to illegal exercise of power or omission to act in accordance with law should refrain from granting relief because of time asking this Court to convert itself into lamentable spectator and not to discharge its role and adjust the law by striking balance between efficient government and protection of citizen against mismanagement by its officials. Expense of jurisdiction and depth of power exercised by this Court under Article 226 can be measured by yardstick of justice and equity only. Mere delay should not be stumbling block in exercise of writ jurisdiction. Inaction must be associated with carelessness, something like negligence or remiss-ness, to convert slackness into laches and disentitle a person from approaching this Court in its extraordinary jurisdiction. But where distance in time is linked with negotiation, representation and its consideration, the argument of passage of time stands diluted. Further even though reduction of area, grant of fresh lease as far as possible to one acre, was in contemplation in 1965 but no clear cut policy was spelt out and when subsequent orders were issued no such restriction was placed. Till 1976 renewal or grant of fresh lease was reiterated on terms and condition mentioned in 1959-60. In Yogeshwar Jaiswal v State Transport Appellate Tribunal, , it was held, 'delay in performance of statutory duty amounts to continuation of process of law and has to be remedied by the Court particularly when the public interest suffers thereby'. In Sri Chandra v State of U.P., , a direction was issued after 26 years since there was inordinate delay in passing orders by State Government under Section 68-D of Motor Vehicles Act'. Even under Law of Limitation the right is not lost. It is the remedy which becomes barred. Therefore, unless something becomes impossible of performance it cannot be refused because of passage of time specially when opposite parties were themselves instrumental to it either because of inaction of passing orders or omission to issue notice. As seen earlier renewal of leases even today either for the entire area or on terms and conditions mentioned in 1959 and 1960 does not present any difficulty. Moreover, the delay was because of negotiations. Renewal or granting fresh leases having been decided by the government in 1959 and reiterated even in 1976 the terms and conditions for the grant of fresh lease could justifiably be a matter of deliberation. Time taken in negotiations or deliberation cannot be considered as delay resulting in laches so as to disentitle the petitioners from seeking the relief of mandamus. Lessees cannot be put to disadvantage when the government kept the doors open for negotiation".
10. The Supreme Court in State of Madhya Pradesh v G.C. Mandawar, held that mandamus could be granted only when there existed a right in the applicant to compel the performance of some duty cast upon the opponent. No writ of mandamus can be issued to direct the authority not to give effect to any provision of law. Generally, where there has been any breach of any rule framed and an order issued under the Act, and the remedy for such breach is provided under the Act itself, no command can be issued by the Court in exercise of a writ jurisdiction merely on the ground of commission of irregularity, It is only after the authority empowered to act under the statute fails to perform the duty, that an applicant can move the High Court for mandamus showing that the officer concerned had conducted in a manner which was against the provisions of law or had failed to exercise the jurisdiction vested in him. It has to be remembered that the issuance of writs under Article 226 of the Constitution is always in the discretion of the Court and can be issued only after proof of existence of the conditions precedent which are necessary for issuance of such writs, on being satisfied that the person approaching the Court had no ulterior motive or object. The applicant approaching the Court for the grant of discretionary relief has to show that he has come to the Court with clean hands, clean image, clean heart and clean objective.
11. In order to ascertain as to whether respondent 1 was obliged to register the case on the basis of the complaint at Annexure-A as prayed for by the petitioner, a reference to some provisions of the Delhi Special Police Establishment Act, 1946 (hereinafter called the DSPE' Act) is necessary. The aforesaid Act was enacted for the purposes of setting up a police staff for the purpose of investigation of offences of bribery and corruption originally for the Union Territory of Delhi which was thereafter extended to the other Union Territories. The application of the Act is now made to various States of the country by notifications issued in terms of Sections 3 and 5 of the said Act. The police force under the Act has been constituted in terms of Section 2 thereof. Section 3 authorises the Central Government to, by notification, specify the offences or class of offences which can be investigated by the police force under the DSPE Act. The Central Government by an order can extend to an area in a State, not being a Union Territory the powers of jurisdiction of the members of the DSPE popularly known as the CBI for the investigation of any offence or class of offences specified in the notification issued under Section 3. When by an order issued under sub-section (1) of Section 3 the powers and jurisdiction of members of the said police force is extended to any such area, a member thereof is authorised, subject to any order which the Central Government may make in that behalf, to discharge the functions of a police officer in that area and while discharging such functions, the said police officer is deemed to be a member of the police force of that area vested with the powers, functions and privileges as also subject to the liabilities of a police officer belonging to that police force. Where any such order under sub-section is made in relation to an area, then, without prejudice to the provisions of sub-section (2), any number of the said police force above the rank of Sub-Inspector is authorised, subject to the orders of the Central Government to exercise the powers of the officer-in-charge of a police station in that area and when so exercising such powers the Police Officer has to be deemed to be an officer-in-charge of a police station discharging the functions over such an area within the limits of his station. It is worth noticing that nothing contained in Section 5 can be deemed to enable any member of the said police force to exercise powers and jurisdiction in any area in a State, not being a Union Territory or a Railway area, without the consent of the Government of that State. Assuming that the DSPE has been extended to the State of Karnataka and that the offences alleged against the persons named herein above are such offences which have been notified under Section 3 of the said Act, it has to be legally presumed that the Police Officer as contemplated by sub-section (3) of Section 4 be deemed to be an officer-in-charge of a police station discharging the functions as such. The Director, Central Bureau of Investigation is admittedly not an officer-in-charge of a police station for any area in the State of Karnataka. The said Director is the administrative head of the police force. No statutory powers are conferred upon such police officer under the DSPE Act authorising him to either register a case or to investigate with respect to the offences reported to him. For initiating action under the said Act, the procedure prescribed under the Code of Criminal Procedure has to be complied with and resorted to. Chapter XII of the said code deals with the information to police and their powers to investigate. Any person interested to set in motion the criminal law has the authority to report the information relating to the commission of cognizable offences to an officer-in-charge of a police station who is obliged to reduce the same into writing and take follow up action as provided under Sections 154, 155, 156 and 157 of the Cr. P.C. A report made to a person other than an officer-in-charge of a police station cannot be treated as 'first information report' and at the best be termed to be a representation or information for the knowledge of the concerned superior officer. Without entering into controversy as to whether the resort to the provisions of the DSPE could be had without the consent of the State Government, the fate of the present petition can be disposed of only on this ground that the petitioner is proved to have failed to report the commission of alleged cognizable offences to the officer-in-charge of a police station as is mandated under Section 154 of the Cr. P.C. read with Sections 3 and 5 of the DSPE Act. In the absence, of a statutory obligation or duty, the respondent 1 was not bound to take any action upon complaint at Annexure-A and this Court cannot issue a mandamus to the said respondent as the petitioner has failed to satisfy the Court regarding the existence of conditions precedent for invoking the jurisdiction of the Court under Article 226 for issuance of a command in the form of a mandamus. The petitioner if really interested in the prosecution of the persons named by him in the application could have proceeded against them under Chapter XV of the Cr. P.C. by filing a complaint before a Magistrate of competent jurisdiction who could have either taken the action himself or referred the matter to the concerned police for further investigation.
12. Where in a case the petitioner had contended that he had furnished necessary information before the high officers bringing to their notice the commission of cognizable offences by a doctor and as no action had been taken be moved the High Court under Article 226 of the Constitution to take steps as required under law by issuing a writ of mandamus for the registration of the FIR, the High Court refused to entertain the writ petition and giving directions as prayed. Not satisfied with the order of the Delhi High Court the petitioner/complainant took up the matter before the Supreme Court by way of SLP. The Apex Court dealt with the case and held:--
"The Code of Criminal Procedure, 1973 (for short, 'the code') prescribes the procedure to investigate into the cognizable offences defined under the Code. In respect of cognizable offence. Chapter XII of the Code prescribes the procedure: information to the police and their powers to investigate the cognizable offence. Sub-section (1) of Section 154 envisages that:
"Every information relating to the commission of a cognizable offence, if given orally to an officer-in-charge of a police station, shall be reduced to writing by him or under his direction, and be read over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behair.
On such information being received and reduced to writing, the officer-in-charge of the police station has been empowered under Section 156 to investigate into the cognizable cases. The procedure for investigation has been given under Section 157 of the Code, the details of which are not material. After conducting the investigation prescribed in the manner envisaged in Chapter XII, charge-sheet shall be submitted to the Court having jurisdiction to take cognizance of the offence. Section 173 envisages that:
"(1) Every investigation under this Chapter shall be completed without unnecessary delay.
(2) As soon as it is completed, the officer-in-charge of the police station shall forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the State Government giving details therein. Upon receipt of the report, the Court under Section 190 is empowered to take cognizance of the offence. Under Section 173(8), the Investigating Officer has power to make further investigation into the offence".
When the information is laid with the police but no action in that behalf is taken, the complainant is given power under Section 190 read with Section 200 of the Code to lay the complaint before the Magistrate having jurisdiction to take cognizance of the offence and the Magistrate is required to enquire into the complaint as provided in Chapter XV of the Code. In case the Magistrate after recording evidence finds a prima fade case, instead of issuing process to the accused, he is empowered to direct the police concerned to investigate into the offence under Chapter XII of the Code and to submit a report. If he finds that the complaint does not disclose any offence to take further action, he is empowered to dismiss the complaint under Section 203 of the Code. In case, he finds that the complaint/evidence recorded prima facie discloses an offence, he is empowered to take cognizance of the offence and would issue process to the accused.
In this case, the petitioner had not adopted either of the procedure provided under the Code. As a consequence, without availing of the above procedure, the petitioner is not entitled to approach the High Court by filing a writ petition and seeking a direction to conduct an investigation by the CBI which is not required to investigate into all or every offence. The High Court, therefore, though for different reasons, was justified in refusing to grant the relief as sought for".
(All India Institute of Medical Sciences Employees' Union v Union of India).
13. It is worth noticing that after the proclamation of the Central Vigilance Commission Ordinance, 1988 followed by an Act of the Parliament, the position regarding registration of a case and investigation by the force under the DSPE has undergone a sea change. The petitioner has admittedly not resorted to any remedy under the said Ordinance/Act. The failure on the part of the petitioner to have resort to the legal remedies provided under law justifies the argument of the respondent that the present petition is actuated by political considerations intended to tarnish the image of the persons named in Annexure-A, one of whom has been the Prime Minister of India and is presently a national leader of an opposition party. The prayer made for the issuance of writ of mandamus is totally misconceived as we are satisfied that the petitioner has not shown the existence of any conditions precedent for the issuance of such a writ.
14. We find substance in the submission of the learned Advocate General that the present petition was liable to be dismissed in view of the applicability of the general principles of res judicata particularly constructive res judicata. The settled position of law is that even though the strict principles of res judicata as provided under Section 11 of the CPC may not be applicable but the general principles of res judicata are applicable to the writ petitions filed under Articles 32 and 226. The doctrine of res judicata has been acknowledged to be applicable to judicial proceedings being based upon the rule of conclusiveness of the judgments. The principle is aimed to prevent entertaining successive superfluous petitions. The principle of res judicata is founded on equity, justice and good conscience. While dealing with the scope of rule of res judicata in its applicability to the writ proceedings, the Supreme Court in Daryo and Others v State of Uttar Pradesh and Others, held:
"9. Is the rule of res judicata merely a technical rule or is it based on high public policy? If the rule of res judicata itself embodies a principle of public policy which in turn is an essential part of the rule of law then the objection that the rule cannot he invoked where fundamental rights are in question may loose much of its validity. Now, the rule of res judicata as indicated in Section 11 of the Code of Civil Procedure has no doubt some technical aspects, for instance the rule of constructive res judicata may be said to be technical; but the basis on which the said rule rests is founded on considerations of public policy. It is in the interest of the public at large that a finality should attach to the binding decisions pronounced by Courts of competent jurisdiction, and it is also in the public interest that individuals should not be vexed twice over with the same kind of litigation. If these two principles form the foundation of the general rule of res judicata they cannot be treated as irrelevant or inadmissible even in dealing with fundamental rights in petitions filed under Article 32.
10. In considering the essential elements of res judicata one inevitably harks back to the judgment of Sir William B. Hale in the leading Duchess of Kingston's case, 2 Smith Lead Gas. 13th Edition, pages 644 and 645. Said Sir William B. Hale "from the variety of cases relative to judgments being given in evidence in civil suits, these two deductions seem to follow as generally true: First, that the judgment of a Court of concurrent jurisdiction, directly upon the point, is as a plea, a bar, or as evidence, conclusive between the same parties, upon the same matter, directly in question in another Court; Secondly, that the judgment of a Court of exclusive jurisdiction, directly upon the point, is in like manner conclusive upon the same matter, between the same parties, coming incidentally in question in another Court for a different purpose". As has been observed by Halsbury, "the doctrine of res judicata, is not a technical doctrine applicable only to records; it is a fundamental doctrine of all Courts that there must be an end of litigation". Halsbury's Laws of England, 3rd Edition, Volume 15, paragraph 357, page 185. Halsbury also adds that the doctrine applies equally in all Courts, and it is immaterial in what Court the former proceeding was taken, provided only that it was a Court of competent jurisdiction, or what for the proceeding took, provided it was really for the same cause", (page 187, paragraph 362). "Res judicata", it is observed in Corpus Juris, "is a rule of universal law pervading every well regulated system of jurisprudence, and is put upon two grounds, embodied in various maxims of the common law, the one, public policy and necessity, which makes it to the interest of the State that there should be an end to litigation -- interest republicae ut sit finis litium; the other, the hardship on the individual that he should be vexed twice for the same cause-- nemo debet bis vexari pro una et eadem causa", Corpus Juris, Volume 34, page 743. In this sense the recognised basis of the rule of res judicata is different from that of technical estoppel. "Estoppel rests on equitable principles and res judicata rests on maxims which are taken from the Roman Law", Ibid page 745. Therefore, the argument that res judicata is a technical rule and as such is irrelevant in dealing with petitions under Article 32 cannot be accepted.
11. The same question can be considered from another point of view. If a judgment has been pronounced by a Court of competent jurisdiction it is binding between the parties unless it is reversed or modified by appeal, revision or other procedure prescribed by law. Therefore, if a judgment has been pronounced by the High Court in a writ petition filed by a party rejecting his prayer for the issue of an appropriate writ on the ground either that he had no fundamental right as pleaded by him or there has been no contravention of the right provided or that the contravention is justified by the Constitution itself. The binding character of judgments pronounced by Courts of competent jurisdiction is itself an essential part of the law, and the rule of law obviously is the basis of the administration of justice on which the Constitution lays so much emphasis. As Halsbury has observed "subject to appeal and to being amended or set aside a judgment is conclusive as between the parties and their privies, and is conclusive evidence against all the world of its existence, date and legal consequences" --Halsbury's Laws of England, 3rd Edition, Volume 22, page 780, paragraph 1660. Similar is the statement of the law in Corpus Juris: "the doctrine of estoppel by judgment does not rest on any superior authority of the Court rendering the judgment, and a judgment of one Court is a bar to an action between the same parties for the same cause in the same Court or in another Court, whether the latter has concurrent or other jurisdiction. The rule is subject to the limitation that the judgment in the former action must have been rendered by a Court or tribunal of competent jurisdiction", Corpus Juris Secundum, Vol. 50 (Judgments), page 603. "It is, however, essential that there should have been a judicial determination of rights in controversy with a final decision thereon", ibid page 608. In other words, an original petition for a writ under Article 32 cannot take the place of an appeal against the order passed by the High Court in the petition filed before it under Article 226. There can be little doubt that the jurisdiction of this Court to entertain applications under Article 32 which are original cannot be confused or mistaken or used for the appellate jurisdiction of this Court which alone can be invoked for correcting errors in the decisions of High Courts pronounced in writ petitions under Article 226. Thus, on general considerations of public policy there seems to be no reason why the rule of res judicata should be treated as inadmissible or irrelevant in dealing with petitions filed under Article 32 of the Constitution. It is true that the general rule can be invoked only in cases where a dispute between the parties has been referred to a Court of competent jurisdiction, there has been a contest between the parties before the Court, a fair opportunity has been given to both of them to prove their case, and at the end the Court has pronounced its judgment or decision. Such a decision pronounced by a Court of competent jurisdiction is binding between the parties unless it is modified or reversed by adopting a procedure prescribed by the Constitution. In our opinion, therefore, the plea that the general rule of res judicata should not be allowed to be invoked cannot be sustal a.
12. This Court had occasion to consider the application of the rule of res judicata to a petition filed under Article 32 in M.S.M. Sharma v Dr. Shree Krishna Sinha, . In that case the petitioner had moved this Court under Article 32 and claimed an appropriate writ against the Chairman and the Members of the Committee of Privileges of the State Legislative Assembly. The said petition was dismissed. Subsequently, he filed another substantially for the same relief and substantially on the same allegations. One of the points which then arose for the decision of this Court was whether the second petition was competent, and this Court held that it was not because of the rule of res judicata. It is true that the earlier decision on which res judicata was pleaded was a decision of this Court in a petition filed under Article 32 and in that sense the background of the dispute was different, because the judgment on which the plea was based was a judgment of this Court and not of any High Court. Even so, this decision affords assistance in determining the point before us. In upholding the plea of res judicata this Court observed that the question determined by the previous decision of this Court cannot be reopened in the present case and must govern the rights and obligations of the parties which are substantially the same. In support of this decision Sinha, C.J., who spoke for the Court referred to the earlier decision of this Court in Raj Lakshmi Dasi v Banamali Sen, , and observed that the principle underlying res judicata is applicable in respect of a question which has been raised and decided after full contest, even though the first Tribunal which decided the matter may have no jurisdiction to try the subsequent suit and even though the subject-matter of the dispute was not exactly the same in the two proceedings. We may add incidentally that the Court which tried the earlier proceedings in the case of Raj Lakshmi Dasi, , was a Court of exclusive jurisdiction. Thus, this decision establishes the principle that the rule of res judicata can be invoked even against a petition filed under Article 32.
13. We may at this state refer to some of the earlier decisions of this Court where the present problem was posed but not finally or definitely answered. In Janardan Reddy v State of Hyderabad, , it appeared that against the decision of the High Court a petition for special leave had been filed but the same had been rejected and this was followed by petitions under Article 32. These petitions were in fact entertained though on the merits they were dismissed and in doing so it was observed by Fazl Ali, J., who delivered the judgment of the Court, that "it may, however, be observed that in this case we have not considered it necessary to decide whether an application under Article 32 is maintainable after a similar application under Article 226 is dismissed by the High Court and we reserve our opinion on that question". To the same effect are the observations made by Mukherjee, J., as he then was in Qasim Razvi v State of Hyderabad, .
14. On the other hand, in Bhagubhai Dullabhbhai v District Magistrate, Thana, , the decision of the High Court was treated as binding between the parties when it was observed by reference to the said proceedings that "but that is a closed chapter so far as the Courts including this Court also are concerned inasmuch as the petitioner's conviction stands confirmed as a result of the refusal of this Court to grant him special leave to appeal from the judgment of the Bombay High Court". In other words, these observations seem to suggest that the majority view was that if an order of conviction and sentence passed by the High Court would be binding on the convicted person and cannot be assailed subsequently by him in a proceeding taken under Article 32 when it appeared that this Court had refused special leave to the said convicted person to appeal against the said order of conviction".
15. The Apex Court in Lal Chand (dead) by L.Rs and Others v Radha Krishan, held that Section 11 of the CPC was not exhaustive and the principle which modified that section can be extended to cases which do not fall strictly within the letter of the law. The principle of res judicata is conceived in the larger public interest which requires that all litigation must, sooner than later, come to an end. The rule is intended not only to prevent a new decision but also to prevent a new investigation keeping in view the larger interests of the society that the same person is not subjected to harassment again and again in various proceedings upon the same question. In various pronouncements the Apex Court has held that even a legislative decision would be as much res judicata as a Court's decision and such decision will not cease to be res judicata merely because the view of the law on which it was passed ceased to represent the Court of law owing to a latter judicial decision or legislative enactment. Rule of constructive res judicata as envisaged by explanation IV to Section 11 of the CPC has also been held to be equally applicable to the writ proceedings upon the same considerations as have been found attracted in the application of the principles of general res judicata. Where a petition under Article 226 of the Constitution is considered on merits as contested matter and dismissed by the High Court, the decision announced in such petition is binding on the parties unless modified or reversed in an appeal or other appropriate proceedings under the Constitution. Such a principle can be equally applicable to the writ petitions filed in public interest and in that event the petitioner in the earlier case would be deemed to be a party in the subsequent proceedings as earlier such writ petition has to be deemed to be a petition filed in a representative capacity. The Supreme Court in Devilal Modi v Sales Tax Officer, Ratlam and Others, held that even in the matter of enforcement of fundamental rights, the principle of res judicata cannot be ignored. The question of constructive res judicata was held to be an artificial form of res judicata enacted by Section 11 of the CPC. The Court further held:--
"As we have already mentioned, though the Courts dealing with the questions of the infringement of fundamental rights must consistently endeavour to sustain the said rights and should strike down their unconstitutional invasion, it would not be right to ignore the principle of res judicata altogether in dealing with writ petitions filed by citizens alleging the contravention of their fundamental rights. Considerations of public policy cannot be ignored in such cases, and the basic doctrine that judgments pronounced by this Court are binding and must be regarded as final between the parties in respect of matters covered by them, must receive due consideration".
Again in State of Uttar Pradesh v Nawab Hussain, the Apex Court held that the plea though not raised in the earlier petition but found on fact that could well have been raised, attracted the applicability of the constructive res judicata. In this regard the Court held:--
"The principle of estoppel per res judicata is a rule of evidence. As has been stated in Marginson v Blackburn Borough Council, (1939)2 KB 426 at page 437, it may be said to be "the broader rule of evidence which prohibits the reassertion of a cause of action". This doctrine is based on two theories: (i) the finality and conclusiveness of judicial decisions for the final termination of disputes in the general interest of community as a matter of public policy and (ii) the interest of the individual that he should be protected from multiplication of litigation. It therefore serves not only a public but also a private purpose by obstructing the reopening of matters which have once been adjudicated upon. It is thus not permissible to obtain a second judgment for the same civil relief on the same cause of action, for otherwise the spirit of contentiousness may give rise to conflicting judgments of equal authority, lead to multiplicity of actions and bring the administration of justice into disrepute. It is the cause of action which gives rise to an action, and that is why it is necessary for the Courts to recognise that a cause of action which results in a judgment must lose its identity and vitality and merge in the judgment when pronounced. It cannot therefore survive the judgment, or give rise to another cause of action on the same facts. This is what is known as the general principle of res judicata.
4. But it may be that the same set of facts may give rise to two or more causes of action. If in such a case a person is allowed to choose and sue upon one cause of action at one time and to reserve the other for subsequent litigation, that would aggravate the burden of litigation. Courts have therefore treated such a course of action as an abuse of its process and Somervell L.J., has answered it as follows in Greenhalgh v Mallard, (1947)2 All ER 255 at page 257:
"I think that on the authorities to which I will refer it would be accurate to say that res judicata for this purpose is not confined to the issues which the Court is actually asked to decide, but that it covers issues or facts which are so clearly part of the subject-matter of the litigation and so clearly could have been raised that it would be an abuse of the process of the Court to allow a new proceeding to be started in respect of them".
This is therefore another and an equally necessary and efficacious aspect of the same principle, for it helps in raising the bar of res judicata by suitably construing the general principle of subduing a cantankerous litigant. That is why this other rule has sometimes been referred to as constructive res judicata which in reality, is an aspect or amplification of the general principle".
This Court in Manipur Vasant Kini v Union of India, to which one of us (Mohamed Anwar, J.) was a party held that a decision referred in the previous litigation filed as public interest litigation would operate as res judicata and binding precedent to the subsequent litigation, also filed in public interest.
To the same effect are the judgments reported in V.K. Kulkarni v State of Mysore and Another; 1974 Lab. IC 275 (Ker.); Raja Jagannath Baksh Singh v State of Uttar Pradesh and Another; Jagannath Prasad v Collector, Bilaspur; M.S.M. Sharma v Dr. Shree Krishna Sinha and Others.
16. One Sri Surender Babu who claimed to be a practising Advocate filed writ petition (Surender Babu v H.D. Devegowda and Others), against Sri H.D. Devegowda, his wife Smt. Channamma, his sons Sri. H.D. Revanna, Sri H.D. Kumaraswamy, Sri H.D. Ramesh and four others named therein alleging against them the misuse of power, nepotism and favouritism. It was submitted that the 3rd respondent therein, namely Sri H.D. Devegowda when he was the Minister for P.W.D. and Irrigation had committed irregularities in grants and purchases involving his family members. He had prayed for the issuance of the writ of mandamus directing the State of Karnataka to initiate action on the basis of the report dated 17-1-1991 submitted by Shanthakumari Devaraj, the then Deputy Commissioner, Mysore Division and to direct the resumption of the excess lands and the illegally transferred lands in favour of respondents 3 to 11 in that writ petition. It was further prayed that a direction be issued for initiating legal action against the respondents therein and the officers responsible for the illegal grants and transfers of the lands. The writ petition was dismissed by the learned Single Judge vide his order dated 8-7-1996. The learned Judge found that nothing was produced before him to substantiate or to make out even prima facie that any irregularity had been committed. After referring to the report relied upon by the petitioner, the learned Single Judge held:
"The above discussion will show that out of the twenty items listed in the report, there is no ground to entertain any petition to direct initiation of any action. This leaves Sl. No. 6 in the report, relating to the grant dated 18-8-1982 said to have been made in favour of fourth respondent. Even though this grant is also nearly fourteen years old, it cannot be put in the category of grants which are more than thirty years old. The decision of this Court in the earlier petition (W.P. No. 7259 of 1993) is also of no assistance as it is per incuriam in regard to this item is concerned as that decision had proceeded on the basis that all the grants complained of are more than thirty years or of the period 1970-80. Hence, in so far as Sl. No. 6 is concerned, notice will have to be issued to fourth respondent regarding issue of rule. In regard to other items in the report dated 17-1-1991 no case is made out to issue rule nisi and the petition (prayers a, b and d) will have to be rejected in limine in regard to those items".
17. In the case of G. Puttaswamy Gowda v H.D. Devegowda and Others, a writ petition was filed by one Sri G. Puttaswamy Gowda against his admittedly political rival namely Sri H.D. Devegowda, praying therein for quashing the order at Annexure-E by which the Governor of Karnataka had declined to accord sanction under Section 6 of the Prevention of Corruption Act to prosecute Sri H.D. Devegowda. In that petition it was alleged that Sri H.D. Devegowda during his tenure as Minister for Public Works had indulged in series of acts of malpractice amounting to criminal misconduct and thus was liable to be prosecuted under Sections 161, 164 and 165 of the Indian Penal Code coupled with sub-sections (2) and (3) of Section 5 of the Prevention of Corruption Act. Allegations with respect to the holding of enquiry by the COD and Smt. Shantakumari Devaraj, the then Deputy Commissioner, Mysore were mentioned therein. The substance of the allegations made in the present petition was identical though the details of all the properties now mentioned in this petition were not submitted. The said petition was dismissed as withdrawn on 24-11-1995 without reserving any liberty to file a fresh petition.
18. In the case of K. Suryanarayana Rao and Others v H.D. Devegowda and Others, praying therein for action against the respondents including Sri H.D. Devegowda and the members of his family. Various allegations regarding the illegalities committed in the grant of land detailed in Annexures-A1 to A31 therein were levelled against Sri H.D. Devegowda and other members of his family. Official respondents were alleged to have been actually influenced by the said Sri H.D. Devegowda resulting in alleged illegal transactions in favour of his family members. The revenue authorities were stated to have acted in clear violation of law with respect to the grant of land. Reference was also made to the report of the Deputy Commissioner, Mysore Division referred to herein earlier which according to the petitioner showed that Sri H.D. Devegowda had allegedly committed the illegalities. The said petition was dismissed by this Court on 12-3-1993. No appeal is shown to have been filed against the order dismissing the writ petition. Besides holding that the petitioner therein had no locus standi to file the writ petition, it was held:--
"Even if the respondents 1 to 5 are to take any action for cancellation of lands granted to respondents 6 to 11 during the year 1963-64, 1970-80, it could not be done beyond the period of three years from the date of grant, as per Section 56 of the Land Revenue Act. In this case it is after a lapse of 30 years of the grant of lands in favour of respondents 6 to 11, the petitioners seek the Government to take action for cancellation of the same under the guise of redressing the public grievance. The petitioners have not shown any specific injury caused to them or any legal wrong or injury caused to a determinate class of persons. It is apparent from the records that at the instance of another political rival Mr. Puttaswamy Gowda who was a Congress M.L.A. action was proposed to be taken against 10th respondent and initiate action to cancel the land granted in favour of respondents 6 to 11 during the year 1963-64 and 1970-80. It is a clear case of rivalry between two political persons".
19. In the case of H.N. Janardhan v H.D. Devegowda and Others, a writ petition filed against Sri H.D. Devegowda and others by one Sri H.N. Janardhan praying therein to direct the Central Bureau of Investigation to prosecute the respondents in the aforesaid petition including Sri H.D. Devegowda for having misused the public funds for their personal gains and thereby causing pecuniary loss of Rs. 8.5 crores to the State exchequer. It was further prayed that report of Commission of Enquiry submitted by Mr. Justice M. Sadanand Swamy be implemented. Prayer was also made for launching criminal prosecution against respondents 4 to 10 which included Sri H.D. Devegowda also. It was contended that in his report submitted on 31-7-1989 Hon'ble Justice M. Sadanand Swamy had held the respondents therein including Sri H.D. Devegowda responsible for irregularities resulting in huge monetary loss to the State. The report was sought to be implemented within the stipulated period. The said writ petition was dismissed by the learned Single Judge vide his order dated 29-7-1997. Writ Appeal No. 5943 of 1997 has been filed against the order of the learned Single Judge, which is pending adjudication and is being separately disposed of.
20. In the case of Ramamurthy v H.D. Devegowda and Others, a writ petition was filed against Sri H.D. Devegowda by one Sri Ramamurthy praying for issuance of direction to the respondent State to initiate action on the basis of the report of the Superintendent of Police, COD, Bangalore dated 13-5-1988 at Annexure-A. The said writ petition was dismissed by the learned Single Judge vide his order dated 9-6-1996. The learned Single Judge dealt with all the allegations made in the report and held on facts that respondent 2 therein, namely, Sri H.D. Devegowda was not in any way connected with the allegations made. Aggrieved by the order of the learned Single Judge, Writ Appeal No. 6974 of 1996 was filed which has also been dismissed by this Court vide order passed today.
21. In the case of Surendra Babu v State of Karnataka and Others, W.P. No. 16465 of 1996 was filed by one Sri Surendra Babu impleading Sri H.D. Devegowda as respondent 2 therein with a prayer for issuance of direction against the State of Karnataka for initiating further action against respondent 2 therein pursuant to the report of the Lokayukta dated 28-5-1988 after obtaining due sanction from the competent authority. In that petition reference was made to the allegations made by one Sri Puttaswamy Gowda who had, as earlier noticed, filed W.P. No. 15287 of 1988 which was dismissed on 24-11-1995 with the submission that as upon the allegations made by Sri Puttaswamy Gowda, the Lokayukta had directed the enquiry against respondent 2 and submitted a report on 28-5-1988 holding him guilty of offences punishable under Section 5(2) of Prevention of Corruption Act. Respondent 2 was alleged to have amassed wealth by illegal means by misusing his position of being a Minister in successive Governments. During the pendency of the petition the petitioner therein filed an application for raising certain additional grounds which were allowed. The learned Judge referred to the report of the Lokayukta and found that in the said report the following allegations made by Sri G. Puttaswamy Gowda against Sri H.D. Devegowda were considered.
"Allegation I
(i) Allotment of sites by the CITB at the behest of the respondent in favour of his relatives numbering 49 although they were not eligible for such allotment.
(ii) The appointment by the respondent of his henchmen as engineers to the CITB for having house-sites allotted illegally to the former's relatives and supporters.
(iii) Allotment of sites by the CITB at the respondent's behest to his relatives at prices lower than those charged from others similarly situated.
Allegation II
(i) A huge cinema theatre valued at more than one crore of rupees was constructed by the respondent at Holenarsipur without spending a single pie from his own pocket. The entire cost was borne by Government contractors who also used materials and employees belonging to the P.W.D. in the construction thereof.
(ii) The respondent purchased Survey No. 249/1 in Holenarasipur within the period of 15 years during which it could not be transferred to him under the law.
(iii) Survey Nos. 249 and 253 in Holenarasipur had been acquired by the Government for Integrated Urban Development Programme (IUDP) but the respondent managed a release thereof from acquisition.
(iv) The respondent encroached upon land belonging to the Government and measuring 54 feet x 400 feet which he included in the cinema site.
Allegation III
(i) Inam land bearing Survey No. 152 was purchased by the respondent in contravention of the law.
(ii) Survey Nos. 43 and 44 were illegally purchased by Shri H.D. Revanna, son of the respondent.
(iii) The son and the sister-in-law of the respondent purchased lands at Bidadi in contravention of law.
(iv) Survey Nos. 28 and 29 were mortgaged by the respondent and his son with the Primary Land Development Bank.
(v) Buildings were constructed and improvements to his property were made by the respondent at a total cost of Rs. 21,35,000/-.
(vi) Survey No. 14 was purchased by the respondent's son from one Shri G.N. Ramaswamy in contravention of law.
(vii) The respondent acquired a film industry and a transport business".
Thereafter the learned Judge noted the report of the Lokayukta and found:--
"Allegation I, relates to three matters; allegation II relates to four matters; and allegation III relates to seven matters. After an exhaustive consideration of the matter, the Lokayukta held in his Report that except in regard to one item (allotment of one site forming part of item (i) of allegation II that is, in regard to items (ii) and (iii) of allegation I, items (i) to (iv) of allegation II and items (i) to (vii) of allegation III no case has been made out at all. Even in regard to item (i) of allegation I which related to irregular allotment of 49 sites by CITE Mysore at the behest of the 2nd respondent in favour of his relatives, the Lokayukta found that in regard to one site only, that is Site No. 555/V allotted to Smt. Savithri a case was made out and in regard to 48 sites no case was made out. The Lokayukta opined that by getting a site allotted to his sister-in-law, the 2nd respondent committed an offence punishable under Section 5(2) of the Prevention of Corruption Act, 1947".
The Governor is reported to have considered the said report and before taking any further action sent a copy of the same to Sri H.D. Devegowda for his comments.
Thereafter upon consideration of the report in detail the Governor concluded:--
"From the material on record, it does not appear that the site allotted to Smt. Savithri at Mysore was to compensate her for the use of her money by the Janata Party. As explained by Shri Devegowda, he had only requested Shri Puttaiah, the Chairman, CITB, Mysore to allot a site to her if possible. This does not amount to an offence coming within the ambit of clause (d) of sub-section (1) of Section 5 of the Prevention of Corruption Act.
Careful reading of Sections 161, 164 and 165 of Indian Penal Code and Section 5(2) and (3) of the Prevention of Corruption Act, 1947, are not attracted to the facts of this case, in view of the material brought on record and in view of what is stated above. Thus having considered all aspects of the matter, I am satisfied that no case is made out for according sanction under Section 6 of the Prevention of Corruption Act, 1947, to prosecute Shri H.D. Devegowda".
The writ petition was dismissed by the learned Single Judge holding:--
"The above narration will disclose that G. Puttaswamy Gowda sought permission of the Governor to prosecute the 2nd respondent under the Prevention of Corruption Act, 1947 and the Governor obtained a report from the Lokayukta and on the basis of the report examined the matter and found that no case was made out and thereafter refused to accord sanction. That is, there was an application for sanction, consideration of such an application and the rejection of the application for sanction, by the Governor. The matter therefore ended on 1-10-1988. There is nothing pending thereafter, either before the Government, or the Chief Minister or the Lokayukta. Hence, the question of directing either the Government or the Chief Minister to take action on the Report does not arise.
The petitioner has erroneously proceeded on the basis that the Report of the Lokayukta was a result of a complaint made to the Chief Minister (Government) and that complaint had been referred to Lokayukta and after investigation Lokayukta submitted a report to the Chief Minister for his consideration under Section 12(3) and the report is pending action with Chief Minister under Section 12(4). The report (Annexure-A) is submitted to the Governor in connection with a reference made by the Governor in connection with an application made by G. Puttaswamy Gowda for sanction to prosecute the 2nd respondent. The Governor having considered the report and found that no case was made out and consequently refused to accord sanction, nothing more remains to be done. It would thus be seen that no action is called for by the first respondent or by the Chief Minister".
It appears that no appeal was filed against the order of the learned Single Judge which has attained finality.
22. It is therefore evident that the present writ petition is a continuation of the series of the successive accusations made against Sri H.D. Devegowda. Despite dismissal of the earlier petitions, the present petition has been filed in the name of the petitioner almost on identical grounds. No allegation has been made with respect to the alleged acquisition of property which could be alleged to have been acquired after the filing of the aforesaid writ petitions. In other words the allegations regarding acquiring property by illegal means were within the knowledge of the petitioner and others which were not brought to the notice of the Court at the time the earlier writ petitions were disposed of. The forum of this Court cannot be permitted to be utilised for ulterior purposes despite adjudication of the pleas raised by the litigant and adjudicated by the competent Court of jurisdiction. While taking a pragmatic and progressive action in furtherance of the case of justice and the rule of law, this Court is not expected to succumb to the public pressures which are found to be politically motivated. Emotions, however strong they may be cannot be a substitute of the larger interests of the society, in the process of dispensation of justice though claimed in public interest.
23. We are therefore satisfied that the present writ petition is barred under the general principles of res judicata including the constructive res judicata. Even on facts we do not find any substance in the submissions made on behalf of the petitioner requiring issuance of directions as prayed. Apparently, the allegations made are vague and ambiguous and highly exaggerated. In the absence of specific allegations prima facie showing the commission of some cognizable offence, no direction can be issued for investigation and consequential prosecution of a person not a party in the proceedings. Criminal prosecution cannot he permitted to be initiated and continued if it is otherwise barred under some statutory provision. It is true that corruption in a civilised society is a disease like cancer, which if not detected in time is sure to malignise the polity of a country leading to disastrous consequences. Corruption is opposed to democracy and social order being not only anti-people but aimed and targeted against them. It affects the economy and destroys the cultural heritage. Unless nipped in the bud at the earliest, it is likely to cause turbulence shaking the democratic system. It is also true the menace of corruption, particularly the political corruption has enormously increased in our political system which has been exposed by the judicial incisions conducted from time to time notwithstanding the position and status of the person guilty of such corruption. However, in the name of alleged corruption no citizen can be permitted to harass a person by successive but unsuccessful judicial proceedings. The institution of the judiciary cannot be permitted to be utilised for the benefit of politicians. This Court in K.V. Amarnath and Another v State of Karnataka and Others, held:--
"The institution of the judiciary cannot and should not be permitted to be utilized by the politicians for the purposes of enforcement or propagation of their policies or put in obstacles in the enforcement of the policies of their political opponents. Simplicitor matter of policies, being of political nature, can be taken to the public at large for the purposes of getting their verdict. In such matters, the constitutional Courts may decline to interfere unless it is found that the constitutional violations were of such nature which required action notwithstanding that the person igniting the Court has a vested interest. In such a case, while exercising the jurisdiction, it can be held and declared by the Court that the action was being taken, prosecuted and concluded by the Court under its power vesting in it under Articles 226 and 227 of the Constitution and that such person initiating the jurisdiction be not given any credit which may wrongly be utilized by him for his political purposes or used against his opponents to harm them in their public and political life. Under the normal circumstances, political rivals should not be permitted to file cases in profusion under the well recognized and patent name of PIL".
Now we feel that it is not coincidence that Sri G. Puttaswamy Gowda was a petitioner in that case filed against the persons including Sri H.D. Devegowda, the former Prime Minister and Sri J.H. Patel, the present Chief Minister of Karnataka. It was specifically held that Sri G. Puttaswamy Gowda had approached the Court with mala fide intentions for inflicting his personal grievance and political vengeance. Directing deletion of his name from the array of petitioners, the petitioner herein was permitted to continue with the writ proceedings. However, in this case we feel that the petitioner has not approached the Court with clean hands, clean heart and clean objectives and has tried to ignite the process of writ jurisdiction of this Court after the failure of many successive earlier petitions filed against Sri H.D. Devegowda and his family members for the grant of similar relief as prayed in this petition. Such unsuccessful petitions included Sri G. Puttaswamy Gowda's petition also.
24. Even on merits no case is made out for directing the registration of an FIR and investigation thereafter with respect to the allegations made in the petition which have already been noticed as vague and ambiguous. To attract the provisions of the Prevention of Corruption Act, the petitioner has to show that the alleged accused was a public servant and had taken gratification other than the legal remuneration in respect of an official act. Such person can be directed to be prosecuted if it is shown that he, being a public servant, accepted or obtained or agreed to accept or admitted to obtain for himself, or for any other person, any valuable thing without consideration or for a consideration which he knew to be inadequate from any person whom he knew to have been or to be likely to be concerned in any proceedings or business transacted or about to be transacted by such public servant or having any connection with the official functions of himself or of any public servant to whom he was subordinate or from any person whom he knew to be interested in or related so concerned. From the facts narrated in the petition it transpires that Sri H.D. Devegowda was a Minister in the State of Karnataka from the year 1983-1988. He became a member of the Parliament in 1991 and was Chief Minister from December 1994 to May 1996. He became the Prime Minister of India on 1-6-1996 and continued to hold the said position for a period of 10 months. The petitioner is therefore obliged to show that the properties referred to in the petition were acquired by said Sri H.D. Devegowda during the aforesaid periods by adopting means and resorting to activities as are contemplated under Chapter III of the Prevention of Corruption Act, 1988. Before analysing the individual allegations made by the petitioner it has to be kept in mind that most of such acquisitions had attained finality on account of the dismissal of various petitions and writ appeals as noticed earlier particularly the items of properties which were the subject-matter of the enquiry conducted by the COD, the Deputy Commissioner, Mysore and the Lokayukta.
25. To show that Sri H.D. Devegowda had acquired a palatial house, the value of which has been assessed to be around Rs. 3.5 to 4 crores, located at Upper Palace Orchards, Sadashivanagar, Bangalore, the petitioner has relied upon modified plan of proposed residential flats belonging to the said Sri H.D. Devegowda, at Annexure-G. The modified proposed plan cannot be made the basis of holding the acquisition of property by illegal means nor can it be taken that its value was the same as stated by the petitioner. The said site plan appears to have been sanctioned on 4-12-1979 when admittedly Sri H.D. Devegowda was neither a Minister nor an M.P. nor C.M or Prime Minister. The petitioner has also not furnished any particulars regarding as to from whom the site of the house was allegedly usurped and the means adopted for such usurpation. No investigating agency worth the name or a Court of law can initiate any action on the basis of the vague, ambiguous and unfounded allegations made in this behalf by the petitioner.
26. The allegations made and noticed in this judgment in para II(ii), the petitioner has relied upon Annexure-H which is Form No. 19 showing the transfer of leasehold rights in favour of Sri H.D. Devegowda on the basis of the letter of the Deputy Commissioner, Hassan dated 16-3-1963 in consequence of the application filed by him. The lease appears to have been granted for a period of 15 years only. The aforesaid acquisition can also not be regarded as acquisition of property by illegal means because admittedly at the relevant time Sri H.D. Devegowda was not holding any of the post as noticed while dealing with respect to the acquisition of the property allegedly in the form of palatial house. The petitioner has also not referred to any documents or reason to value the aforesaid property at Rs. 20 lakhs. The allotment of the land by way of lease is also not shown to be in violation of any provision of law applicable in the case. The acquisition of the aforesaid property valued by the petitioner at Rs. 25 lakhs allegedly by illegal means is not supported by any record or evidence and appears to be the result of the figment of the imagination of the petitioner.
27. To support the allegations noted in para II(iii) the petitioner has relied upon Annexure-J which is Form No. 6 pertaining to the index of land, wherein the land comprising Survey No. 153 bearing 11.22 acres is shown as Government waste land. The aforesaid land is shown to have been entered in the name of Kadri Gowda, s/o Desi Gowda, Giddamma, w/o Marigowda and Channamma, w/o Sri H.D. Devegowda by way of sale apparently made by one Ismail Sab. No date is mentioned with respect to any of the entries but an endorsement made on the first page of the aforesaid annexures shows that the entries had been made vide order passed by the Deputy Commissioner on 30-6-1978, admittedly when the said Sri Devegowda was not holding any public office and was not a public servant within the meaning of the Prevention of Corruption Act. It is also not clear as to what extent the land is owned by the wife of the aforesaid Sri H.D. Devegowda. Entries made in the revenue record does not in any way support the allegations of the petitioner as made in the writ petition. Form No. 5 (Record of Rights) attached with Annexure-J only refers to the mutation register number being 20 of 1962 without specifying the date of purchase of the land by Smt. Channamma.
28. Annexure-K has been produced to show that land comprising Survey No. 152 allegedly measuring 12.27 acres was a Government mam land and one Maragondanahally was in possession of the same. The said property is shown to have been granted in favour of Suryanarayana s/o Venkataramannaiah vide order dated 30-6-1975. The aforesaid Annexure does not prove the allegation of the petitioner that the land mentioned in para II(iv) of this judgment was acquired by Sri H.D. Ramesh, the 4th son of Sri H.D. Devegowda by any illegal means or at the instance of his father during the period he was a public servant within the meaning of the provision of the Prevention of Corruption Act.
29. The land measuring 8 acres in Survey No. 44 as noticed in para II(v) of this judgment is shown to be Government gomal land in the index of land Form No. 6 at Annexure-L which appears to have been transferred to Sri H.D. Revanna and Smt. Channamma vide No. ND 645 of 1980-81. The transfer of the gomal land in favour of the aforesaid persons apparently appears to have been made prior to Sri H.D, Devegowda becoming the Minister in the State of Karnataka. Otherwise also the petitioner has not referred to any provision of law to substantiate his allegation that the aforesaid Government gomal land was illegally granted in favour of the son and wife of Sri H.D. Devegowda. Mere acquisition of the land without violation of any provision of law cannot be made a basis of roping in the family members of Sri H.D. Devegowda for investigation of the offences punishable under penal law. The allegation in this regard is apparently vague, ambiguous and irrelevant. Annexure-L2 is an extract from the Mutation Register which pertains to an entry dated 31-5-1980 recording:--
"According to petition Sri H.D. Rame Gowda son of Sri Devegowda resident of Hariharapura Village, Halekote Hobli, Holenarasipura taluk has given a statement that at a partition by the panchayath-dars the land standing in his name bearing old Survey No. 44/B and now new number 72 measuring 4 acres of Padavalahippe Village, Kasaba Hobli of the same taluk has been allotted to the share of Smt. Channamma wife of Sri H.D. Devegowda, the said land may be transferred to her name".
30. To prove the allegations noticed in para II(vi) of this judgment, the petitioner has relied upon the entry of Record of Rights produced in the Court as Annexure-M with respect to Survey No. 43 of Padavalahippe Village, Holenarasipura Taluk, Hassan District which refers to entry in Mutation Register bearing No. 5 of 1955. The nature of possession noted therein shows, 'granted land No. LND:645/0-81'. Such entry, also cannot be made the basis for directing investigation by the DSPE.
31. To prove the allegations made in para II(vii) the petitioner has relied upon the entries made in the Record of Rights produced at Annexure-N which shows that the land comprising Survey No. 29 was transferred in the name of various persons including Sri H.D. Revanna vide several sale deeds commencing from 10-6-1976 to 19-6-1980. The aforesaid land is admittedly in the Village Haradur, Taluk Arakalagudu, the major portion of which is dry and the estimated production in quintals per hectare is 0.60%. The petitioner has not submitted any circumstances or referred to any provision of law showing any statutory violation with respect to the aforesaid sale deeds. It is also not clear as to how the petitioner has valued the property at Rs. 25 lakhs.
32. The land measuring 2.30 acres comprising Survey No. 28 in Haradoor Village is stated to have been acquired by Sri H.D. Revanna. To prove this allegation, the petitioner has relied upon Annexures-O and O1 which are the entries of RR extract and the Record of Rights. It appears that the Survey No. 28 comprises of a total area of 25.35 acres, out of which 1.10 acres is karab dry land. Vide column No. 7 in Annexure-O, Patel Giddegowda and his children are shown to be in possession of the land on account of partition. A part of land is stated to have been sold to P. Sannagowda, s/o Giddegowda and to Sri H.D. Revanna s/o Sri H.D. Devegowda. Another portion of property is stated to have been devolved upon Sri H.L. Thirumalegowda s/o Lakkegowda by means of partition. The land measuring 2.30 acres is shown to have been mutated in favour of Sri H.D. Revanna on the basis of sale deed No. 454, dated 22-8-1981, admittedly when Sri H.D. Devegowda had not become the Minister in the State Government. There is nothing on record to show that the sale was a sham transaction or procured by exercising undue influence or taking advantage of the official position of any member of the family of Sri H.D. Devegowda. In the aforesaid survey number, a number of other persons are also shown to have acquired the interests either by sale or by partition. There is nothing on record even to find out as to for what consideration the aforesaid land had been purchased by Sri H.D. Revanna. It is also not clear as to on what basis the petitioner has assessed the aforesaid land at Rs. 12 lakhs. Another piece of land measuring 4.30 acres is stated to have been acquired by Sri H.D. Revanna in the same village limits out of Survey Number 29, the value of the aforesaid land has been assessed by the petitioner at Rs. 20 lakhs. To prove this allegation the petitioner has relied upon Annexure-P which is RR extract which shows that the total area of the Survey No. 28.77 acres, out of which H.D. Revanna is stated to have acquired 4.30 acres on the basis of the sale deed executed in his favour. The other persons in possession of the property acquired by way of sale are Patel Giddegowda, Savithramma and Jayamma who are not stated to be in any way related with Sri H.D. Devegowda. The properties shown appear to have been acquired during the year 1982-83 and 1983-84. Again the petitioner has not placed any document on record to show the value of the properties or the consideration for which it was sold to Sri H.D. Revanna. The acquisition of this property by way of sale cannot be held to be a circumstance connecting the family of Sri H.D. Devegowda with the commissioning of an offence punishable under the provisions of the Prevention of Corruption Act or the Penal Code.
33. In the same village limits H.D. Revanna is shown to have acquired land measuring 3.28 acres in Sy. No. 14. The value of this land has been assessed by the petitioner at Rs. 16 lakhs. To prove this allegation he has relied upon Annexures-Q and Q1. Annexure-Q is RR extract showing the total area of the land being 24.02 acres. The land is free gomal land under the possession of a number of persons namely, A. Nirvani Gowda Jawaregowda, Thammaiah s/o Hanumegowda, G.N. Ramaswamy s/o M. Narayana Iyengar, Range Gowda, s/o Hanume Gowda, G. Shankarlinga Shetty, s/o Sanka Shetty, C.M. Mantha Gowda s/o Hire Gowda, Jayamma w/o Channegowda, G.S. Nanjappa s/o G. Shankaralinga Shetty. The name of H.D. Revanna is not mentioned either as possessor or owner of the property. Persons shown in possession as noted hereinabove are not alleged to be related to Sri H.D. Devegowda.
34. To prove the allegations made in para No. 11 of the writ petition, the petitioner has relied upon Annexures-Q-2a, Q-2b and Q-2c. Q-2a is a certificate of grant of the land sanctioned by the Special Assistant Commissioner of Darkhasth Hassan dated 14-5-1963. It shows that under the rule of disposal of unoccupied Government land for cultivation or grant of occupancy rights the land detailed therein was sold and was purchased by Ramegowda s/o Devegowda in public auction for upset price which was duly confirmed. The said Ramegowda paid into the Government treasury full sum of purchase money. He was permitted to enter into occupation of the land and grant confirmed in his favour vide the aforesaid document. Sri H.D. Devegowda is not shown to have any connection with that land nor his name is mentioned in the document. Similarly, Annexure-2Qb dated 14-5-1963 shows that one Smt. Devamma, daughter of Marigowda had purchased the land detailed therein in public auction for the upset price and was permitted to enter into occupation of land upon confirmation of the grant in her favour. Annexure-Qc is a similar certificate of grant of land showing the sale of land in favour of one Basavegowda s/o Dodde Gowda in public auction for upset price which was duly confirmed and the auction purchaser put in possession after receipt of the upset price. No part of the land, the subject-matter of the document Q-2a, Q-2b and Q-2c is shown to have been acquired by Sri H.D. Devegowda as alleged by the petitioner. The persons mentioned in the aforesaid documents who are shown to have purchased the land in auction at upset price are not alleged to be related to the said Sri H.D. Devegowda. The documents relied upon by the petitioner clearly show that the allegations made with respect to the property, the subject-matter of allegations in para No. 11 of the petition are not only frivolous but incorrect and baseless.
35. The allegations made in para Nos. 12, 13 and 14 are vague and ambiguous not supported by any documents. The acquisition of the property by the uncle of Sri H.D. Devegowda or by one Ningegowda cannot he termed to be acquisition of the property by the person against whom action is sought to be initiated. Similarly, the allegation of acquisition of property by Channamma w/o Sri H.D. Devegowda is not referable to any record. No date or even year of acquisition of the property detailed in the said para has been mentioned by the petitioner. The property referred to in para No. 15 is shown to have been acquired by purchase by one Sri Kariappa. The acquisition is stated to be illegal being in violation of the Land Reforms Act and the Rules made thereunder. It is submitted that though the land, the subject-matter of the transaction is an agricultural land under irrigation, illegally got converted from the category of agriculture to non-agriculture purpose. To prove such allegation the petitioner has relied upon Annexures-R, R(a) and R(b). Annexure-R which is a phani patrika, record of rights and tenancy particulars showing that the land comprising Sy. No. 249 was a Government land which was in the possession of one Kariyappa during the years 1976-77, 1977-78, 1978-79, 1979-80 and 1980-81. Annexure-R(a) is also a similar revenue record pertaining to Sy. No. 253 which is again a Government land under the possession of one Meenakshamma w/o R. Krishnappa and H.D. Revanna s/o Sri H.D. Devegowda. It also refers to the tenancy details for the years noted as in Annexure-R. Annexure-R(b) refers to land comprising Sy. No. 253 purchased by H.D. Revanna vide sale MR. 69 of 1979-80. The land is shown to be dry wet garden with paddy crop grown in it with water source being channelled. The aforesaid land is also shown to have not acquired during the period when Sri H.D. Devegowda was a Minister or a public servant. Without any basis the petitioner has put the value of the land at Rs. 2 crores apparently with the intention of prejudicing the Court.
36. The allegations made in para 15(a) being totally vague and ambiguous require no comment. Property mentioned in para 16 of the writ petition is stated to be land measuring 2.12 acres in Sy. No. 253 which is alleged to have been acquired by purchase from one Sri Narasimha Shetty. The aforesaid land is stated to have been converted for non-agricultural purposes in violation of the provisions of law applicable in the case. It is submitted that the said land was intended to be acquired by the Municipal authorities for the purposes of providing sites to the local shelterless persons. Sri H.D. Devegowda is stated to have asserted his political pressure and got the land acquisition notification cancelled. In support of his allegation the petitioner has relied upon documents at Annexures-R1(a), R1(b) and R1(c). Annexure-R1(a) is a form of grant dated 9-4-1984 intimating Sri H.D. Revanna that in pursuance to his application dated 2-12-1983 for grant of a licence for construction of permanent cinema theatre in assessment No. 3669 situate in Hassan-Mysore Road, 1st division, sanction had been accorded for grant of the licence with the plan subject to the conditions specified therein. The period of the licence is mentioned to be for one year. Annexure-R1(b) is the order of the Special Deputy Commissioner, Hassan dealing with the acquisition of land in Survey Nos. 170, 171, 172, 173, 188, 189, 192, 196, 197, 215, 216, 217, 218, 224, 225, 249, 253, 254 and 255 measuring 2 acres 9 guntas of South Nala Village. Upon consideration of the objections with respect to Survey Nos. 249:2, 250:1, 253:2, 254, 255, 170, 188 of Dakshina Nala Village, he ordered that excluding Survey Nos. 253:1, 254, 249:2, 253:2 and 255, land acquisition notification was being issued. The said order cannot be attributed to have been procured at the instance of Sri H.D. Revanna as it refers to various Survey numbers and upon consideration of objections filed by Govindappa, H.D. Revanna, Papanna and R. Jayashankappa, the orders under the provisions of law were passed on 18-6-1983 which are shown not to have been challenged in any Court of law. Even during the arguments the learned Counsel for the petitioner has not referred to any statutory violation in passing the aforesaid order. Annexure-R2(c) is a 'no objection certificate' issued under the Karnataka Cinema Regulations on 23-11-1983 certifying that there was no objection to Sri H.D. Revanna for allowing a permanent cinema in the land belonging to him and bearing municipality assessment Registration No. 3667, 1st Division, Holenarasipura Town measuring about 5058 sq. metres. Annexure-R2 is an order of the Special Assistant Commissioner for disposal of darkast dated 14-5-1963 which does not pertain to any member of the family of Sri H.D. Devegowda or the lands, the subject-matter of the documents produced as Annexure-R1(a), R1(b) and R1(c).
37. Illegalities with respect to properties mentioned in para 17 were subject-matter of Writ Petition Nos. 16465 of 1996, 17333 of 1996 and 18794 of 1997 which were dismissed on merits and the appeals preferred rejected by passing effective orders.
38. Annexure-U produced to prove the allegations detailed in para No. 19 is the extract of the Register of Assessment of the building and land showing that the property mentioned therein belonged to M/s. Devambica Nursing Home (Private) Limited. How the persons sought to be prosecuted are connected with the aforesaid concern has not been explained. The allegation that Dr. Ramesh, 4th son of Sri H.D. Devegowda was the owner of the building is difficult to infer from this document, otherwise also no allegations have been made regarding acquisition of the aforesaid property by illegal means or the use of political influence of Sri H.D. Devegowda. When and how this property was acquired has not been detailed in or even hinted out.
39. The allegations made in para 18 being vague as lacking details cannot be directed to be investigated by way of a roving enquiry. The building mentioned in para 21 is stated to be in the name of H.D. Balakrishna Gowda who is stated to be a serving Deputy Commissioner of the Karnataka Administrative Cadre. When and how the land upon which the construction is stated to have been raised was acquired is not detailed in the petition. Annexure-W produced in support of the allegations made in this para, is a Register of assessment of building and land for the period commencing from 1-4-1996 to 15-9-1997. H. Kavitha is shown to be the owner and the area under the building measuring 1362 x 21.64 ft. The entries made in the said document do not show the mode of acquiring the property or its value. The mere fact that the property was owned by a relation of Sri H.D. Devegowda would not warrant registration of a case and directions for holding of investigation. Similarly, two storeyed building located at No. 73 on V.K. Venkatadasa Road allegedly in the name of H.D Shyla, the daughter of Sri H.D. Devegowda would not warrant any action as the said property is not shown to have been acquired by any illegal means or by assertion of political influence of said Sri H.D. Devegowda. Annexure-X produced in the petition is also the Register of assessment of building and land from 1-4-1996 to 15-10-1997 which does not disclose the mode of acquisition or the value of the property. Annexures-W and X only indicate the residential house and annual rent which renders the owner liable to pay the amount demanded vide those annexures. The acquisition of property in the form of a building bearing No. 41 of 1970 by Smt. Savithri, sister-in-law of Sri H.D. Devegowda cannot in any way be connected with Sri H.D. Devegowda even if the document Annexure-Y, produced by the petitioner is relied upon. The said Annexure is also an extract from the Register of assessment of buildings and land form mentioning therein the description of the property, the name of the owner, annual rental value, total demand in the form of cess payable by the owner but without indicating the manner and method by which the said land was acquired by the owner. No document has been produced in support of the averments made in para 24 of the petition wherein it is alleged that Site No. 286, 2nd Main, 3rd Phase, J.P. Nagar was acquired in the name of Sri H.D. Kumaraswamy, the M.P., son of Sri H.D. Devegowda. Similarly, the averments made in para 25 are not supported by any documentary record. The allegations made in para 26 pertain to the allotment of a petrol bunk in the name of Kumari Sangeeta, the younger sister of the sister-in-law of Sri H.D. Devegowda. The relation mentioned is too distant and cannot be made the basis for holding Sri H.D. Devegowda to be connected with the grant of the petrol bunk. Otherwise also any person aggrieved by the allotment of the petrol bunk is at liberty to challenge the alleged favour done to a person distantly related to Sri H.D. Devegowda and admittedly not a party before us. The documents Annexures-Z and Z1 do not support the allegations made by the petitioners in this behalf. Annexure-AA is a sale deed of urban Site No. AR 163, (New No. 271), Katha No. 282 which was purchased by one Smt. M. Rathnamma, w/o Sri H.D. Puttaswamy from Smt. Agnes Mary. It is contended that Sri H.D. Puttaswamy is the brother-in-law of Sri H.D. Devegowda who is a petty agriculturist having no sufficient resources to purchase the aforesaid site. It is contended that site was purchased by Sri H.D. Devegowda in the name of said Sri H.D. Puttaswamy. The said site is shown to have been purchased in June 1997 when admittedly Sri H.D. Devegowda had ceased to be the Prime Minister. Annexure-BB is another sale deed dated 24-4-1997 executed by M.K. Swami Gowda and Ningaraju in favour of Sri H.E. Ravindra, s/o Eregowda, who is stated to be nephew of Sri H.D Devegowda and admittedly, not a member of his family and reportedly living separately. The purchase of MIG house bearing No. 27 AR 329 and No. 59 AR 327 at Karnataka Housing Board colony at Hassan in favour of Sri H.D. Puttaswamy, brother-in-law of Sri H.D. Devegowda would not show that the aforesaid properties had been acquired by the owners for and on behalf of Sri H.D. Devegowda. The acquisitions with respect to manipulative grabbing of land measuring 10 acres in Survey Nos. 64/25, 64/24 and 69/10 situated within the periphery of District administrative town of Hassan are totally vague as no detail worth the name is mentioned with respect to the said alleged illegal grabbing of the land. Some property belonging to D.C. Ananthaswamy is reported to have been purchased in the name of H.D. Puttaswamy but no date or even period is mentioned as to when the said house was purchased.
40. The land comprising Survey Nos. 60, 7, 8, 54/1 and 62 totally measuring 14.06 acres in Katigenahalli, Ramnagar Taluk are stated to have been acquired by one Smt. Savithramma w/o late Hanume Gowda who is reported to have developed the said land into excellent agricultural farm. She is stated to be related to the wife of Sri H.D. Devegowda and the lands are allegedly held by her for and on his behalf. To support these allegations, petitioners have relied upon document at Annexure-CC which purports to be the extract of some revenue record showing the lands mentioned therein to be measuring 22.16 acres. Name of Smt. Savithramma is mentioned in the document without indicating as to whether she was the owner, occupier or tenant. It is also not clear as to with which period the aforesaid entries relate to. The prosecution of Sri H.D. Devegowda is sought only on the ground of his allegedly being related to Smt. Savithramma. Such a prayer is not only illegal but also improper. Adjoining the lands mentioned herein above, some more land in various survey numbers totalling 17.34 acres within the limits of Katigenahalli, Ramanagar Taluk are stated to have been originally belonging to the harijans of the area who were allegedly forced to part with such land against their will under political pressure with the result that the lands stood transferred in the name of H.D. Kumaraswamy son of Sri H.D. Devegowda. Provisions of alienation rules and other legal provisions applicable in the case are stated to have been deliberately flouted. In support of the assertions made in this behalf the petitioner has relied upon the document at Annexure-DD which is the extract of some revenue record showing the said H,D. Kumaraswamy as lease holder. Names of the persons given for lease is mentioned as Gangayya, Govindappa, C. Devaraju, Kemperayya, Narasayya, Pillayya, Munithimmayya, Galappa, Doddayya. Kathas are stated to have been changed on various dates commencing from 1986 to 1997. No document has been produced to show that the aforesaid lands allegedly stood allotted to harijans and no name of any harijan has been mentioned. How and when the said harijans were allegedly forced to part with the land is also not apparent. No person aggrieved of the entries is shown to have agitated the matter in any Court of law. The allegations made with respect to this land also are apparently vague and ambiguous.
41. The allegations made in paras 30, 31 and 32 of the petition are not only general in any nature but apparently vague and ambiguous. Source of information on the basis upon which the allegations have been made are not disclosed. It may be true that the aforesaid properties belong to Sri H.D. Devegowda and his family members but mere acquisition and possession of the properties would not warrant investigation and criminal trial against him unless the said properties are shown to have been acquired by illegal means or were disproportionate to the income of the family members. Sri H.D. Devegowda and his sons are stated to be in active politics having remained as M.L.As., M.Ps. and Ministers. The petitioner has not placed anything on record to show that the alleged properties possessed by the members of the family exceeded their known sources of income.
42. In support of the serious allegations of corruption, favouritism and nepotism, the petitioner has filed an affidavit stating therein that statements made in paras I to III of the writ petition were true to the best of his knowledge and the statement made in paras IV to VI thereof were based upon the information which he believed to be true and correct. Nature of the acquisition made require a detailed affidavit. No litigant can be permitted to level charges and make imputations without reference to the facts and circumstances known to him personally or disclosing the source of information upon the basis of which such allegations were made. It is true that in a case initiated in public interest it was generally not possible to have personal knowledge in regard to various allegations made, but when such knowledge is wanting, it is obligatory for the petitioner to disclose his source of information so that the other side could be provided a fair chance to verify and effectively reply the allegations. Slip shod affidavits and defective verification should generally entail the rejection of the allegation. An affidavit in support of serious allegations affecting the reputation of the person sought to be prosecuted must be moulded on the lines of Order XIX, Rule 3 of the CPC. The failure to make requisite statutory verification should normally entail the dismissal of the petition. Exception can be made only in cases where the Court itself is satisfied that the disclosure of the source of information may be detrimental either to the petitioner or to the Society. Dealing with this aspect in the light of the Writ Proceeding Rules, 1977, Order XIX, Rule 3 of the CPC and Order IX and XIII of the CPC, this Court in a similar petition filed by the petitioner in K.V. Amarnath's case, supra, has held:--
"Order XIX, Rule 3 of the CPC provides:
'Matters to which affidavits shall be confined.--Affidavits shall be confined to such facts as the deponent is able of his own knowledge to prove, except on interlocutory applications, on which statements of his belief may be admitted: provided that the grounds thereof are stated'.
It has to be kept in mind that affidavits are accepted as an exception to oral evidence and without subjecting the deponent to cross-examination. Writ petitions under Article 226 of the Constitution are entirely decided on facts stated in the affidavits which make such affidavits to be more sacred particularly when the allegations of mala fide are levelled. Defective affidavits cannot be taken note of or construed in a liberal manner. Exceptions are always in the discretion of the Court. An affidavit is admittedly a declaration as to facts made in writing and sworn to before a person having the authority to administer oath, and swearing or solemnizing such affirmation essential to give validity and credibility to an affidavit for the purposes of looking into the facts alleged. Swearing of false affidavits is an offence under Section 191 of the IPC. The provisions of Order XIX read with Section 191 require that the persons making the averments in the affidavits should make it with responsibility and be prepared to face the consequences, if the averments made therein are proved to be wrong. The affidavit accompanying the writ petition must be restricted to facts which are within the deponent's knowledge. If such averments are based on the information received by him, he is required to refer or at least indicate the source of information. If an objection is raised with respect to the affidavit being defective, the deponent has the liberty of filing a correct affidavit in terms of Order XIX, Rule 3 of the CPC. However, such rules of procedure have to be liberally construed in case of PIL, provided the action initiated by the petitioner is shown to be bona fide and in good faith. It would be sufficient if the deponent refers to various paras which are true to his knowledge and certifies the other paras, which are believed to him, to be true on the basis of the information received. He may also specify the source of information, so far as it is practicable. In the absence of such verification, no responsibility can be fastened upon the deponent for his criminal prosecution. Without there being any responsibility of the consequences, no litigant can be permitted to make reckless, baseless and vexatious allegations against his opponent".
Keeping in view the nature of the allegations made, we are of the opinion that the affidavit filed with the petition is not according to the form prescribed. Prima facie no criminal responsibility can be fastened upon the petitioner even if the allegations made therein are found to be false and without basis. The petitioners affidavit being patently defective cannot be made the basis for directing the registration of a case or launching of prosecution against the persons who are not impleaded as parties in the present petition. The initial burden of proving the allegations made in the petition lies upon the petitioner approaching the Court which cannot be taken lightly. While dealing with the case in which mala fides were alleged, the Supreme Court in E.P. Royappa v State of Tamil Nadu, held that the burden of establishing mala fides was very heavy upon the person who made allegations. The allegations of corruption, abuse of power and usurpation of property both public and private cannot be termed to be in any way lesser than the allegations of mala fides. Dealing with the burden of establishing the mala fides the Supreme Court in that case held:
"The allegations of mala fides are often more easily made than proved, and the very seriousness of such allegations demands proof of a high order of credibility. Here the petitioner, who was himself once the Chief Secretary, has flung a series of charges of oblique conduct against the Chief Minister. That is in itself a rather extraordinary and unusual occurrence and if these charges are true, they are bound to shake the confidence of the people in the political custodians of power in the State, and therefore, the anxiety of the Court should be all the greater to insist on a high degree of proof. In this context it may be noted that top administrators are often required to do acts which affect others adversely but which are necessary in the execution of their duties. These facts may lend themselves to misconstruction and suspicion as to the bona fides of their author when the full facts and surrounding circumstances are not known. The Court, would, therefore, be slow to draw dubious inferences from incomplete facts placed before it by a party, particularly when the imputations are grave and they are made against the holder of an office which has a high responsibility in the administration. Such is the judicial perspective in evaluating charges of unworthy conduct against ministers and other high authorities, not because of any special status which they are supposed to enjoy, nor because they are highly placed in social life or administrative set-up these considerations are wholly irrelevant in judicial approach - but because otherwise, functioning effectively would become difficult in a democracy. It is from this stand-point that we must assess the merits of the allegations of mala fides made by the petitioner against the second respondent".
43. The delay in approaching the Court, as already noted herein above is also fatal in this case. The powers of this Court cannot be sought to be invoked which may ultimately adversely affect the principles of fair trial. Individuals should be discouraged from filing criminal cases after prolonged delay because on account of such delay material evidence available to a person likely to be prosecuted is apprehended to disappear. Allowing filing of vexatious and belated prosecution would amount to the abuse of the process of the laws which cannot be allowed while exercising discretionary jurisdiction under Article 226 of the Constitution. Directing prosecution after an unexplained and prolonged delay would be contrary to the concept of fairness of a trial as envisaged by Article 21 of the Constitution. It is, therefore, of the utmost importance that any prosecution whether by the State or by the private complainant be initiated at the earliest and wherever limitation is prescribed within the period of limitation. As no explanation, much less satisfactory has been tendered by the petitioner for the prolonged delay in approaching the Court, this Court would be very loath in issuing directions for registration of a criminal case, its investigation and prosecution against persons not parties before it and that too merely on the basis of vague and ambiguous allegations made apparently for reasons which cannot be termed to be genuine.
44. We are satisfied that the present litigation initiated apparently appears to be actuated by political considerations and for seeking publicity as the person sought to be prosecuted had been the Prime Minister of India. We have no hesitation to hold that the writ petition is totally misconceived, based upon unfounded, vague and ambiguous allegations actuated by political and publicity considerations, barred by the principles of general and constructive res judicata, suffering from unexplained delay and latches, not supported by valid documents or legal affidavit, not maintainable in the absence of conditions precedent for seeking mandamus and is intended to abuse the process of the Court by invoking extraordinary discretionary relief of writ jurisdiction under the patent name of Public Interest Litigation. The writ petition is accordingly dismissed. Rule issued is discharged. Petitioner is held liable to pay costs of Rs. 5,000/- to be deposited in the State Legal Authority Fund.