Kerala High Court
Daya Sindhu Sreehari N.S vs Central Bureau Of Investigation on 18 January, 2021
Author: S. Manikumar
Bench: S.Manikumar, Shaji P.Chaly
WP(C).No.14585 OF 2013(S) -1-
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
MONDAY, THE 18TH DAY OF JANUARY 2021 / 28TH POUSHA, 1942
WP(C).No.14585 OF 2013(S)
PETITIONER/S:
DAYA SINDHU SREEHARI N.S.
S/O N.S. PRABHU, RESIDING AT GURUKRUPA, EAST OF
LIBRARY, A.N PURAM, ALAPPUZHA DISTRICT 688011
BY ADVS.
SRI.SREELAL N.WARRIER
SMT.ANCY ALEX
SMT.NEETHU PREM
SRI.B.RAGHUNANDANAN
RESPONDENT/S:
1 CENTRAL BUREAU OF INVESTIGATION
CBI BUILDINGS, KALOOR, COCHIN 682017, REPRESENTED
BY THE SUPERINTENDENT OF POLICE, CENTRAL ZONE
2 INDIAN RARE EARTHS LIMITED
ECIL BUILDING, PLOT NO 1207, VER SAVARKAR MARG,
PRABHADEVI, MIMBAI 600028, MAHARASHTRA,
INDIA,REPRESENTED BY ITS CHAIRMAN
3 COCHIN MINERALS AND RUTILES PVT LTD,
INDUSTRIAL DEVELOPMENT AREA, MUPPATHADAM, EDAYAR
KOCHI 683110, REPRESENTED BY ITS CHAIRMAN
4 THE KERALA MINERALS METALS LTD. (A GOVERNMENT OF
KERLA UNDERTAKING)
SANKARAMANGALAM, CHAVARA, KOLLAM, KERALA, INDIA
691583, REPRESENTED BY ITS CHAIRMAN
5 DEPARTMENT OF ATOMIC ENERGY (DAE)
HAVING ITS OFFICE AT ANUSHAKTI BHAVAN, C.S.M MARGM,
MIMBAIU 400001, MAHARASHTRA, INDIA, REPRESENTED BY
THE SECRETARY TO THE GOVERNMENT
WP(C).No.14585 OF 2013(S) -2-
R1 BY SRI. SASTHAMANGALAM S. AJITHKUMAR, SC
R2 AND R3 BY SRI. M. GOPIKRISHNAN NAMBIAR
R4 BY SRI. K. ANAND (SR.)
R5 BY SRI. P. VIJAYAKUMAR, ASG
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
18.01.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No.14585 OF 2013(S) -3-
JUDGMENT
Dated this the 18th day of January, 2021 S. Manikumar, C. J.
Petitioner has sought for a mandamus commanding the respondents to report this Court, as to whether any application from the Central Bureau of Investigation (CBI), represented by its Superintendent of Police, Central Zone, Cochin, 1st respondent, has been made to the Department of Atomic Energy (DAE), represented by the Secretary to the Government, Mumbai, the 5 th respondent, for sanction to investigate into the illegality in the process of sale of the Ilmenite by the Indian Rare Earths Limited (IREL), represented by its Chairman, Mumbai, 2nd respondent, and if so, what orders have been issued.
2. Petitioner has also sought for a mandamus directing the CBI, 1st respondent, to conduct a fair investigation into the illegal sale of the Q grade Ilmenite by the IREL, 2 nd respondent, to the Cochin Minerals and Rutiles Pvt. Ltd. (CMRL), represented by its Chairman, Kochi, 3 rd WP(C).No.14585 OF 2013(S) -4- respondent, and the Kerala Minerals & Metals Ltd. (KMML), represented by its Chairman, Kollam, 4th respondent, respectively.
3. Short facts leading to the filing of the writ petition are as hereunder:-
Petitioner has alleged the arbitrary and corrupt acts by persons in management of IREL, 2nd respondent, a Government of India owned company, and apparently well connected and influential in the matter of distribution of the scarce natural resource like Ilmenite, by private negotiation, to private sector companies, involved in commercial activities, without supplying the same to Government companies, for very important and essential purposes to be fulfilled in the interest of general public, including manufacturing of satellite / space research vehicles, among other.
Petitioner has submitted that Ilmenite is a very scarce natural resource, available in limited areas in India, the best quality (Q-grade), being mined in Quilon (Kollam) in Kerala. IREL, the 2 nd respondent, a Government of India undertaking, has the mining facility for the same at Kollam. Ilmenite (Quilon grade), is the best among available for WP(C).No.14585 OF 2013(S) -5- developing Titanium Sponge, a very light weight material, which is essential for the KMML, 4th respondent, a Government of Kerala undertaking, for its Government projects, including that of manufacturing satellites, aircrafts, space research equipments, among others.
According to the petitioner, KMML, the 4 th respondent, has on ever so many times, requested the IREL, 2 nd respondent, for supply of the Q-grade Ilmenite, to KMML, for its such purposes, the same has been refused, and was not delivered, except to the extent of 100 MT only, while the demand is for much higher quantity. During the period of July, 2011 to August, 2011 itself, IREL's exit passes confirms sale above 6,500 Metric tons to KMRL, the 3rd respondent private sector company, as against the above sale of 100 Metric tons to the 4 th respondent Government company's needs. Even the said limited sale of the said rare natural resource by the 2 nd respondent Government owned company to the 4th respondent Government owned company was at a price (Rs. 17,000/-), which is much higher than the price (Rs. 12,650/-) to the 3rd respondent private sector company, which does not serve the more important purposes of the Government, or the general WP(C).No.14585 OF 2013(S) -6- public, and only manufactures less important commercial products like cosmetics and paints. The said value of Rs. 12,650/- for Q-grade supplied by the IREL, 2nd respondent, to its preferred 3 rd respondent private company, is much less than the low quality, less preferred, and low value HOR-grade-Ilmenite from Orissa, which itself is priced at Rs. 15,000/-.
Petitioner has also submitted that the Managing Director of the 3rd respondent private sector company is the retired former senior official of the 2nd respondent Government Company and high level collusion and manipulation is per se evident in the transactions as a whole, more so, when secret understanding and dealings are impossible with the 4th respondent Government sector company, to the decision makers of the 2nd respondent company. The same has caused illegal monetary loss to the Government and made the important and essential productive activities of the 4 th respondent Government company literally stagnant and counterproductive, for want of good resources.
The petitioner has contended that though the CBI, 1 st respondent, had conducted surprise search in the premises of the WP(C).No.14585 OF 2013(S) -7- IREL, 2nd respondent, and discovered considerable information regarding the said illegal and corrupt acts, and bring the guilty before the law, there has not been any investigation on the issue. Though attempts had been made by some responsible citizens to obtain sufficient related documented information, including by resort to the Right to Information Act, 2005, they have been silenced by threat of victimization. The information otherwise received confirms that though CBI, the 1st respondent, had obtained sufficient information during the surprise search, the 1st respondent had made an application for sanction from DAE, the 5th respondent, the authority concerned, to proceed with investigation, against the highly connected and politically influential persons, the said application has been kept without any decision, despite lapse of more than 18 months, as against the clear directions of the Hon'ble Supreme Court under various reported decisions, regarding the period within which such applications for sanction to investigate has to be disposed off.
The petitioner seriously apprehended that the application of the CBI, 1st respondent, for sanction to proceed with the investigation into the above illegal and corrupt acts and the involvement of senior WP(C).No.14585 OF 2013(S) -8- Government officials and politicians, is kept pending by DAE, the 5 th respondent, without orders, solely due to the political intervention on the free and independent investigation into the said serious crimes, to safeguard the influential Government servants and the politicians, who have been benefitted in the illegal deals at the detriment of the State, and the general public, by such acts.
Hence, in public interest, the petitioner has sought for appropriate directions, including direction to the CBI, 1 st respondent, to investigate into the said illegal distribution or allocation of the rare natural resources, and bring the guilty before law, even in the absence of the permission by the authority for the purpose, before relevant materials are destroyed, altered or removed, and to report to this Court, of the acts taken pursuant to such directions to be issued by this Court.
4. CBI, the 1st respondent, has filed a statement in the writ petition, wherein the 1st respondent has submitted that, a self contained note was sent on 25.07.2012 by the CBI, to the Chairman, DAE, 5 th respondent, for according sanction under Section 6A of the Delhi Special Police Establishment Act, 1946, since three of the officials, WP(C).No.14585 OF 2013(S) -9- who were instrumental in preparing the discriminative pricing policy, as detailed above, were of the level of Joint Secretary and above.
5. CBI, the 1st respondent, has further submitted that, after the filing of this instant petition before this Court under Article 226 of the Constitution of India, DAE, the 5 th respondent, vide their letter No.3/10(22)/2011/PSU/7947 dated 24.06.2013, has denied sanction under Section 6A of the Delhi Special Police Establishment Act, 1946, as sought for by CBI, and that the CBI cannot pursue this matter any further, because of the limitations put on it, by the provisions contained under Section 6 A of the Delhi Special Police Establishment Act.
6. Chairman and Managing Director, Indian Rare Earths Limited, Mumbai, the 2nd respondent, has filed a counter affidavit in the writ petition, stating that the mining operation carried on in Kerala, by the IREL, 2nd respondent, is on the basis of mining lease granted to it by the Government of Kerala, under the provisions of the Mines & Minerals (Development & Regulation) Act, 1957 (the MMDR Act). It is further submitted that the terms of the various orders granting mining lease to the IREL, 2 nd respondent, inter alia WP(C).No.14585 OF 2013(S) -10- contemplates that, the 2nd respondent should supply Ilmenite regularly from its Chavara plant, to CMRL, the 3 rd respondent, to their full requirement.
7. It is further submitted that, following the joint surprise check by the officers of the CBI, 1st respondent, on 19.10.2011, at IREL, the 2nd respondent, the Superintendent of Police, CBI, ACB, Cochin addressed a letter to the Chairman, DAE, 5th respondent, enclosing therewith a self- contained note, regarding the surprise check. It was requested that the prudence (commercial & administrative) of the decisions of IREL, the 2nd respondent, may be examined. It is learnt that the DAE, 5th respondent, thereafter sent a detailed reply to the Superintendent of Police, CBI, ACB, Cochin, explaining the circumstances under which 2nd respondent's pricing policies were fixed etc., and finding absolutely, no fault with the decisions taken by the 2nd respondent. It is also submitted that thereafter, there has been no further communication in this regard between CBI, the 1 st respondent and DAE, the 5th respondent, with regard to this matter. Thus, there is absolutely no basis for the allegations in the writ WP(C).No.14585 OF 2013(S) -11- petition, and any alleged loss to IREL, the 2 nd respondent, is an exclusive imagination and presumption of the petitioner.
8. Material on record discloses that the petitioner has filed a reply affidavit to the same.
9. On behalf of the Deputy Secretary, Department of Atomic Energy, Mumbai, 5th respondent, a counter affidavit has been filed stating that, as requested by the CBI, 1st respondent, the DAE, 5th respondent, conducted a detailed examination of the matter, by calling upon the relevant records, evidence and clarifications on various issues raised in the self contained note. On careful examination of all the issues raised in the self contained note, facts, information available on record, evidence, clarifications sought, and analysis of the same, DAE, the 5th respondent, had arrived at the conclusions that the officials of the IREL, 2nd respondent, have complied with the policies of the company, without any prejudice or intended deviations. DAE, the 5th respondent, submitted that, documentary evidence (in the manner of publications in international trade journals) is available on record to substantiate various facts considered in the pricing, in context of the present technological regime, environment and globally WP(C).No.14585 OF 2013(S) -12- accepted titanium industry practices. Further, it is pertinent to mention that technology acceptance is dynamic in nature, and keeps continuously evolving over time.
10. Company Secretary of the Kerala Minerals & Metals Ltd. (KMML), 4th respondent, has also filed a counter affidavit, denying the averments made in the writ petition. KMML, the 4 th respondent, has submitted that, the raw material, Ilmenite, mined from the mines of KMML, is not sufficient to meet the requirements of the company. KMML always used to purchase Ilmenite from IREL, 2 nd respondent. KMML is in need of the raw material for production and when there was no supply from IREL; KMML had to depend on private manufacturers of beneficiated Ilmenite.
11. KMML, the 4th respondent, has further submitted that, it is not correct to say that the KMML is a competitor of IREL, the 2 nd respondent, for the reason that, the Ilmenite mined from the mining areas allotted to KMML, was not sufficient to meet its own production requirements. Further, it is also not correct to say that the KMML stopped sourcing Ilmenite from the IREL, 2nd respondent, on account of their own production of Ilmenite.
WP(C).No.14585 OF 2013(S) -13-
12. It is submitted that even though KMML, the 4 th respondent, has its own mines, it has been requesting IREL, 2 nd respondent, for Ilmenite, to fill the shortfall of raw material requirement. In the earlier years, for the production of TiO2, the raw material requirement was met with production from its own mines. But with the raw sand feed becoming lean in Ilmenite, and percentage fall in the beach collection of sand, and increase in production capacity of Ti02, the requirement of Q Grade Ilmenite became important for KMML, and KMML can only be considered as a trusted customer, and not as a competitor, for price fixing. The dual pricing policy of IREL discriminates KMML compared to the CMRL, 3rd respondent. It is also not correct to hold that KMML will be hoarding valuable raw material with a view to export it, as KMML itself is having shortage of raw material, required for its production of TiO2. KMML was never engaged in export of Ilmenite, or sale of Ilmenite, in the open market. KMML has also submitted that, the various purchase requests that KMML has placed for procurement of Ilmenite from the IREL, 2 nd respondent, would prove that, KMML is facing shortage of raw material, and is forced to pay a higher price, so as to have its units functioning. WP(C).No.14585 OF 2013(S) -14-
13. IREL, the 2nd respondent, has also filed a counter affidavit, which is almost on the same and similar, and therefore it does not require any reproduction.
14. Alleging irregularities, by the abovesaid companies, and though CBI has conducted a search and thereafter made an application to the DAE, the 5th respondent, for sanction for prosecution, and the said application was pending for more than 18 months, without orders, instant writ petition has been filed, for the reliefs as stated supra.
15. From the material on record, it is deduced that CBI, 1 st respondent, had sent a detailed note dated 25.07.2012 to the Chairman, DAE, 5th respondent, for according sanction under Section 6A of the Delhi Special Police Establishment Act, 1946, since according to CBI, three of the officials were instrumental in preparing the discriminative pricing policy, were at the level of Joint Secretary and above.
16. However, DAE, the 5th respondent, vide their letter No. 3/10(22)/2011/PSU/7947 dated 24.06.2013, has denied sanction under Section 6A of the Delhi Special Police Establishment Act, 1946. WP(C).No.14585 OF 2013(S) -15-
17. Though CBI, the 1st respondent, has contended that, DAE, the 5th respondent, has shown enthusiasm while discussing technical facts and findings, other respondents have disputed the allegations made by the CBI.
18. From the above, it could be seen that the 1 st prayer sought for in the writ petition has been answered by CBI in their counter affidavit.
19. Though as early as on 24.06.2013, permission has been declined by DAE, 5th respondent, meanwhile, CBI, the 1st respondent, did not pursue the matter, and at paragarph No. 18 of the counter affidavit filed by the CBI, it is stated that CBI cannot pursue the matter, because of the limitations contained in Section 6A of the Delhi Police Establishment Act, 1946.
It could be further deduced that, CBI, the 1 st respondent, has not challenged the proceedings dated 24.06.2013, declining permission under Section 6A of the Delhi Special Police Establishment Act, 1946. At this point of time, after nearly eight years, no mandamus can be issued, directing CBI, the 1st respondent, to conduct investigation into WP(C).No.14585 OF 2013(S) -16- the alleged sale of Q grade Ilmenite by IREL, 2nd respondent to the CMRL, 3rd respondent, and the KMML, 4th respondent, respectively.
Accordingly, writ petition is dismissed.
Sd/-
S.MANIKUMAR CHIEF JUSTICE Sd/-
SHAJI P.CHALY JUDGE Eb ///TRUE COPY/// P. A. TO JUDGE WP(C).No.14585 OF 2013(S) -17- APPENDIX PETITIONER'S/S EXHIBITS:
EXHIBIT P1 WEBSITE PUBLICATION ABOUT 2ND
RESPONDENT
EXHIBIT P2 WEBSITE PUBLICATION ABOUT 3RD
RESPONDENT
EXHIBIT P3 WEBSITE PUBLICATION ABOUT 4TH
REPSONDENT