Karnataka High Court
Sri Nagegowda vs The State Of Karnataka on 17 April, 2023
Author: M. Nagaprasanna
Bench: M. Nagaprasanna
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 17TH DAY OF APRIL, 2023
BEFORE
THE HON'BLE MR. JUSTICE M. NAGAPRASANNA
WRIT PETITION No.1945 OF 2023 (GM - RES)
BETWEEN:
SRI NAGEGOWDA
S/O LATE CHIKKANALE GOWDA
AGED ABOUT 55 YEARS
R/AT P.B.MANCHANAHALLI VILLAGE
SHILANERE HOBLI
KRISHNARAJAPET TALUK
MANDYA DISTRICT - 571 426.
... PETITIONER
(BY SRI VARUN R.R., ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
DEPARTMENT OF WATER RESOURCES
NO.305 AND 306, 3RD FLOOR
VIKASA SOUDHA
AMBEDKAR VEEDHI
BENGALURU - 560 001
REPRESENTED BY ITS
ADDITIONAL CHIEF SECRETARY.
2. THE KARNATAKA LOKAYUKTHA
MULTISTORIED BUILDING
BENGALURU - 560 001
REPRESENTED BY ITS REGISTRAR.
2
3. SRI K.SRINIVAS
S/O MARIGEMPA ALIAS MULLE GOWDA
AGED ABOUT 61 YEARS
NOW RETIRED EXECUTIVE ENGINEER
NO.3, HEMAVATHI EDADANDE NALA DIVISON
KRISHNARAJAPETE
MANDYA DISTRICT - 571 426.
... RESPONDENTS
(BY SRI B.V.KRISHNA, AGA FOR R1;
SRI B.B.PATIL, ADVOCATE FOR R2;
SRI A.K.VASANTH, ADVOCATE FOR R3;
SRI L.M.CHIDANANDAYYA, IMPLEADING APPLICANT)
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE
CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED
ORDER BERING NO.JASUME 135 SEEEVI 2020 DATED 03.01.2022
ISSUED BY THE R1 HEREIN (ANNEXURE-A) AS ILLEGAL AND
ARBITRARY; DIRECTING THE R1 TO CONSIDER THE SANCTION OF
PROSECUTION AGAINST THE R5 HEREIN IN ACCORDANCE WITH
LAW.
THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED
FOR ORDERS ON 13.04.2023, COMING ON FOR PRONOUNCEMENT
THIS DAY, THE COURT MADE THE FOLLOWING:-
3
ORDER
The petitioner is before this Court seeking quashment of an order dated 03.01.2022 by which approval/sanction for conduct of investigation is refused by the Competent Authority.
2. Heard Sri.Varun R.R., learned counsel appearing for petitioner, Sri B.V.Krishna, learned Additional Government Advocate appearing for respondent No.1, Sri B.B.patil, learned counsel appearing for respondent No.2, Sri.A.K.Vasanth, learned counsel appearing for respondent No.3 and Sri.L.M.Chidanandayya, learned counsel appearing for impleading applicant.
3. Facts in brief that leads the petitioner to this Court, in the subject petition, as borne out from the pleadings, are as follows:
The petitioner is the complainant, the complaint is against the 3rd respondent an Executive Engineer, now retired, on attaining the age of superannuation. The allegations pertain to the period during which the 3rd respondent was working as Executive Engineer.
Floods caused certain damage to four tanks in K.R.Pet taluk, 4 Sindagatta tank, Haralahalli tank, Hosaholalu tank and Agrahara Bachihalli tank. This resulted in water seeping into the agricultural fields and causing damage to the crops. The work of repair of the said tanks was declared to be of urgent nature and accordingly permission was accorded to Cauvery Neeravari Nigama Limited to carry out such repairs granting exemption under Section 4(a) of the Karnataka Transparency in Public Procurements Act, 1999 ('Act' for short). The declaration reads as follows:
"C¢ü¸ÀÆZÀ£É PÀ£ÁðlPÀ ¸ÁªÀðd¤PÀ ¸ÀAUÀæºÀuÉUÀ¼À°è ¥ÁgÀzÀ±ÀðPÀvÉ PÁAiÉÄÝ 1999 gÀ PÀ®A 4(J) CrAiÀÄ°è ¤ÃqÀ¯ÁVgÀĪÀ C¢üPÁgÀzÀ£ÀéAiÀÄ ºÁUÀÆ ¸ÀÄvÉÆÛÃ¯É ¸ÀASÉå:¦qÀ§Æèöår 381 DPÉÆÃ-3/06, ¢£ÁAPÀ:10.11.2006 gÀ°è ¤ÃrgÀĪÀ ¸Àà¶ÖÃPÀgÀtzÀ C£ÀéAiÀÄ, ªÀåªÀ¸ÁÜ¥ÀPÀ ¤zÉÃð±ÀPÀgÀÄ PÁªÉÃj ¤ÃgÁªÀj ¤UÀªÀÄ ¤AiÀÄ«ÄvÀ EªÀgÀÄ ¢£ÁAPÀ:27.12.2019gÀ ¥ÀvÀæzÀ°è ªÀgÀ¢ ªÀiÁrgÀĪÀ ¥ÀæªÁºÀ¢AzÁV ºÁ¤UÉƼÀUÁVgÀĪÀ PÉ.Dgï.¥ÉÃmÉ vÁ®ÆèQ£À ¹AzsÀUÀlÖ PÉgÉ, ºÀgÀ¼À°è PÉgÉ, ºÉƸÀºÉƼÀ®Ä PÉgÉ ªÀÄvÀÄÛ CUÀæºÁgÀ ¨ÁZÀºÀ½î PÉgÉUÀ¼À zÀÄgÀ¹Û PÁªÀÄUÁjAiÀÄ£ÀÄß "vÀÄvÀÄð PÁªÀÄUÁj" JAzÀÄ WÉÆö¹zÉ."
It is claimed that the work began since then. On 24.03.2020 on account of the country being engulfed with the pandemic i.e., COVID-19, a nation wide lockdown was declared by the Government of India, whereby all activities stood suspended and necessary works also came to be deferred. On 27.03.2020 it is the allegation of the petitioner that despite lockdown certain work order 5 was issued to repair the damage of the tanks aforesaid and on 31.03.2020, the work is said to have been completed and a running bill is submitted to the tune of Rs.5.34 crores, there were 3 running bills.
4. This became the subject matter of a complaint before the 2nd respondent/Lokayukta. The complaint was concerning the exemption granted under Section 4(a) of the Act for a work which was more than Rs.5 crores, which could not have been issued except by issuance of a notification of tender. The Lokayukta examines the issue qua the exemption granted and holds that there was no illegality committed by the State in granting exemption under Section 4(a) of the Act, in the light of the fact that the works had to be attended with immediacy. Therefore, the effort of the petitioner to register a complaint before the Lokayukta had failed. The petitioner then chooses to knock at the doors of the learned Magistrate under Section 200 of the Cr.P.C seeking registration of a private complaint. The Magistrate, accepting the complaint, refers the matter for investigation. For investigation, it was necessary for the Investigating Agency to obtain prior approval from the hands of 6 the Competent Authority as obtaining under Section 17A of the Prevention of Corruption Act, 1988 for prevention of corruption offences. After reference by the learned Magistrate, an FIR comes to be registered in Crime No.4 of 2022 for offences punishable under Sections 420, 406, 409, 465, 468, 471, 477A r/w Section 120(B) of the IPC, Sections 23 of the Act and under Sections 7, 8, 9, 13(1)(C) and (D) of the Prevention of Corruption Act, 1988 (Amendment Act-2018).
5. The Investigating Agency sought approval from the hands of the Competent Authority to conduct investigation in the light of the crime being registered. The Competent Authority, in terms of its order dated 03.01.2022, holds that there was no illegality in all the four works entrusted to the 3rd respondent and on the ground that a parallel enquiry was pending before the Lokayukta, the approval was declined. It is this order that drives the petitioner to this Court in the subject petition.
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6. On the submission made by the learned counsel for the petitioner, this Court on 27.03.2023 had passed the following order:
The petitioner is before this Court seeking to quash an order dated 03.01.2022 whereby the 1st respondent/State declines to grant sanction for prosecution of the 3rd respondent who has now retired from service.
The issue relates to the period during his service. The 3rd respondent is alleged that while he was working in the cadre of Executive Engineer at the Hemavathi Yedadande Nala Vibhaga, applies for an exemption under Section 4(a) of the Karnataka Transparency in Public Procurement Act, 1999 contending that certain works are necessary to be executed immediately and secures the said 4(a) exemption under the Act. This became a subject matter of a complaint before the Lokayuktha. The Lokayuktha on examination of the records closes the complaint on the ground that there was no violation of law against others including the petitioner for having secured 4(a) exemption. The matter ends there.
The petitioner registers a private complaint invoking Section 200 of the Cr.P.C. pursuant to which, an FIR comes to be registered in Crime No.4 of 2022. Sanction was sought to proceed further by the Investigating Officer. Government declines to grant sanction on the ground that a similar complaint was pending before the Lokayuktha.
The learned Additional Government Advocate submits that the petitioner has no locus to challenge.
The learned counsel for the petitioner submits that for rejection or according of sanction to prosecute the order must bear application of mind and it should be after consideration of the entire material on record. The learned counsel takes this 8 Court through the entire material on record that was available before the Competent Authority, which are all documents appended to the present petition, a perusal of which shocks the conscience of the Court for the following reasons:
- Entire nation was clamped with lockdown on account of the spread of the pandemic COVID-19 with effect from 24.03.2020. No Government office was open, no work was to be undertaken.
- In spite of the lockdown, the 3rd respondent issues a work order on 27.03.2020 for the purpose of construction of retaining wall to waste weir halla, improvements to waste weirs and improvement to sluice canal of Hosaholalu Doddakere to one P.K.Shivaramu. The work order was admittedly issued on 27.03.2020. The contractor to whom the work order was issued completes the laborious work in 3 days and submits a bill of such work contending that he had completed the work and it was a running accounts bill. All this happen during the lockdown.
- A bill of Rs.5,02,78,000/- (Rupees Five Crores Two lakhs Seventy Eight Thousand only) is immediately cleared on the approval of the 3rd respondent. Therefore, the work order which is issued on 27.03.2020, is completed within 3 days i.e., on 30.03.2020, on 31.03.2020 a bill is submitted and the aforesaid amount is immediately cleared. All these happen during the lockdown when all the offices were closes and all the works had been suspended. With the aforesaid facts, it further shocks as to how the Competent Authority has declined to grant sanction on the ground that a similar case is pending before the Loakayuktha notwithstanding the fact that on the said date, the proceedings before the Lokayuktha had already been closed. The 3rd respondent has not bartered away his money or the Competent Authority who has rejected sanction has not lost his money. What is bartered away is "public money".
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Therefore, the learned Additional Government Advocate is directed to secure instructions and produce the records that went into the impugned action by the next date of hearing.
List this matter on 05.04.2023 for further hearing at 2.30 p.m."
In the light of the afore-quoted order, the State Government has placed on record, portions of the original records and have indicated the calendar of events, as has happened in the case at hand. The calender of events reads as follows:
"Calendar of events for the 4(a) works executed as in WP 1945/2023 Date Details of events Documents Page no enclosed 21.10.2019 Heavy Rain Recorded in KR Pete taluk area and Nagamangala taluk 22-10-2019 Due to heavy Breached 1-3 rain, 8 tanks in Kr photocopies of pete taluk were tanks breached and two roads were washed out.
Among 8 tanks, series of four major tanks are
1.Hosaholalu Doddakere.
2. Haralahalli tank.
3.Agraharabachalli tank and 10
4.Sindaghatta tank.
Damage 1.Hosaholalu Doddakere.:-tank R/s Waste weir canal bund occurred in and weir apron completely washed out.
four major 2.Haralahalli tank:- Main weir wall and D/s cause way tanks completely washed out.
3.Agraharabachalli tank:- waste weir wall partly and D/s road side bund breached and
4.Sindaghatta tank:-Bothside waste weir wall and R/s waste weir canal completely washed.
Tank D/s paddy field flooded with water and some portion crop washed out.
22.10.2019 Superintending Thahasildar 4-7
Engineer, suggested to take
Thahasildar, police immediate steps to officers and people restore breached representatives portion. Paper visited the breached cuttings.
spot
22-10-2019 First information FIR copy 8-10
report with
photocopies were
submitted thro
proper channel and
higher officers were
briefed by the
Superintending
Engineer from the
spot regarding the
damages occurred.
23-10-2019 Damages were Paper cuttings 11-12
appeared in News
paper
24-10-2019 Taluk MLA Sri Photo copies 13-16
Narayana gowda enclosed
visited the spot,
Discussed with
higher officers and
instructed to take
immediate steps to
save standing crops
of tank atchkhat
11
and to restore
damaged portion.
Also instructed to
give the
approximate cost
required (line
estimate).
24-10-2019 Higher officers As per higher 17-18
instructed to take officers instructions
immediate and suggestions
restoration steps to temporary bund
save standing crops formation to divert
with the reputed flood water to save
able agencies crops commenced.
having required Photocopies
machineries. enclosed
28-10-2019 DC, Mandya District News paper cutting 19-20
has visited the spot
and assured
farmers regarding
early restoration
works to save crops
and instructed
irrigation officers to
speedy completion
of restoration work.
28-10-2019 Taluk MLA Sri MLA Letter 21-23
Narayana gowda
wrote a letter to
Hon'ble CM to
release funds and
to instruct
concerned to
complete the works
on emergent basis
under 4(g) of KTTP
act.
30-10-2019 Hon'ble CM directed Hon'ble CM's 21
Finance department endorsed letter copy
to take immediate
steps to take up the
works on 4(g) and
12
release necessary
funds.
4-11-2019 Joint Secretary to FD letter 24
Govt, Finance
department has
instructed Water
resources
department to take
up the works as per
norms as per
Hon'ble CM's
instructions.
11-11-2019 Secretary, Water Under secretary to 25
resources, has Govt, WRD letter
instructed MD,
CNNL to take
necessary steps.
14-11-2019 MD, Cnnl has MD's officer letter 26
instructed to submit copy
detailed proposal on
4(a) to take up the
works on emergent
basis.
19-11-2019 Chief Engineer, Chief Engineer office 27
Hemavathi project, letter copy
Gorur has
instructed to submit
detailed proposal
under 4(g).
13-12-2019 Detailed estimates Chief Engineer office 28-30
of three tanks (1) letter copy
Hosaholalu, (2)
Haralahalli tank and
(3) sindhaghatta
tank for Rs 620.00
lakhs as per
Schedule of Rates
of the year 2019-20
and 4(g) proposal
with agency names
submitted thro
proper channel to
13
MD, CNNI for
approval.
26-12-2019 Detailed estimates MD's office letter To be
of three tanks for copy enclosed
Rs 620.00 lakhs as
per Schedule of
Rates of the year
2019-20 and 4(g)
proposal with
agency names
submitted to Govt
for approval by MD,
CNNI
28-12-2019 Actual restoration Photo copies 31-32
work started since
crop harvesting
started in the
atchkhat
7-01-2020 Required materials Copies of test 33-42
were stocked at results
work site and
Quality control
authorities have
carried out
necessary tests
28-01-2020 Approval Copy of GO 43
accorded to the
above tanks to
take up under
section 4(a) of
KTTP act vide GO
WRD 4 NHP 2020
dtd 28-01-2020
29-01-2020 After obtaining approval for Govt, work of all the tanks were continued on war footing basis for early completion of restoration of breached portion so as to allow water to summer crops of tank atchkhat and also to utilize water for drinking for human habitation.
03-03-2020 1st work, Completion report 44-44(a)
Hosaholalu tank issued be the CE,
restoration work is HRP Gorur
completed in all
14
respects before
entering to
agreement well in
advance.
20-03-2020 Progress of work Work photos of 44(b) - 44()
of other two different stages
tanks
1. Haralahalli
tank - 50%
completed
2. Sindaghatta
tank - 60%
completed
23-03-2020 Govt's approval Copy of letter 45-46
communicated to
chief Engineer
from MD's office.
27-03-2020 Govt's approval Copy of letter 47-48
communicated by
the Chief
Engineer and
instructed to
complete the
restoration works
early
27-03-2020 On the same day, Work order copies 49-57
since lockdown
enforced from 24-
03-2020 due to
covid 19
pandemic, work
orders for all the
three works were
issued with the
help of staff who
residing in the
Colony itself
which is beside
the office
premises.
27-03-2020 All the staff are residing in Hemavathi colony beside office premise. All 15 engineers were taken for covid 19 duty. Before stopping the work on 24-03-2020 as per Govt guideline, measurements were recorded for the portion of work executed.
30-03-2020 By the time of work orders issued the progress of works commenced from 24-10-2019 till 30-03-2020 is
1. Hosaholalu tank - completed 100%
2. Haralahalli tank - 50% completed
3. Sindaghatta tank - 60% completed 30-03-2020 Only fund request No payments is made in submitted to MD, CNNL the month march 2020. for portion of work done in three days from upto date agreement date
1. Hosaholalu - Rs.2.57 Crores
2. Haralahalli tank - Rs 43.12 lakhs.
3. Sindaghatta tank - Rs 1.5 crore (Total Rs 450 lakhs) 30-07-2020 2nd work sindhaghatta Completion 58-60 tank work completed report issued be the CE, HRP Gorur 31.07.2020 Funds released only in the Passed 61-65 month of July 2020. Vouchers Hosaholalu 1st payment tank & 66 sindhaghatta
1. Hosaholalu-125.00 lakhs
2. Sindaghatta tank:144.00 lakhs Total:Rs 269 lakhs 30.08.2020 3rd work Haralahalli Completion 67-69 tank work completed in report issued all respects be the CE, HRP Gorur nd Nov 2020 2 payment Passed 70-71 16
1. Haralahalli - vouchers Rs.50.00 lakhs Total up to date:
319.00 lakhs 30.03.2021 3rd payment Passed 72-76
1. Hosaholalu-132.00 vouchers lakhs
2. Sindaghatta tank:38.00 lakhs Total:Rs 170.00 lakhs (Emphasis added)
7. A little description of the calendar of events would become necessary. Facts that have happened upto 28.01.2020 are not germane. On 28.01.2020, the aforesaid exemption under Section 4(a) of the Act was granted. On 03.03.2020 first work of Hosaholalu tank restoration work is completed in all respects even before entering into an agreement for conduct of such work. On 23.03.2020 Government's approval is communicated to the Chief Engineer from the Managing Director's office. Even before the approval could be given, the progress of the work in 2 tanks was 50% and 60%. What is shocking is the incidents that have happened on 27.03.2020. On 27.03.2020 when all the offices and the entire country was under lockdown, Government's approval is communicated by the Chief Engineer with instructions that the 17 works should be completed as early as possible. Same day work orders were issued for all 3 works with the help of the staff residing in the colony itself which was beside the office premises.
Therefore, what the State depicts is work from home as orders emanate from the residences of the staff. On the same day, all the staff residing in Hemavathi colony besides the office premises were directed to take measurements of the work already done and record the portion of work executed. All these things happen on the same day i.e., on 27.03.2020 during the thick of lockdown. On 30.03.2020 progress of the work is submitted. The work in one of the tanks i.e., Hosaholalu tank is said to have been completed to the tune of 100% and in respect of the other two, Haralahalli and Sindaghatta 50% and 60% of work is said to be completed and bills were submitted for Rs.4.5 crores on 30.03.2020, all during a complete lockdown.
8. The agreements were executed on 27.03.2020 and the works which stood at 50% and 60% in two of the tanks complete during the lockdown, measurements are taken, work execution report is submitted along with the bills. The clearance of the bills 18 may have been at a later date, but all the aforesaid happen during the lockdown. If these were the dates, there was no warrant for the State Government to have declined approval for investigation. Approval is declined on the ground that parallel enquiry before the Lokayukta was pending. As a matter of fact, the Lokayukta had already closed the proceeding on the date on which the approval was refused. It is therefore this Court had directed the Government to answer as to how the approval could be rejected, on the ground that proceedings before the Lokayuktha were pending while the fact is that it was closed.
9. Now at the time when the hearing was on, the learned Additional Government Advocate passes on an order dated 11.04.2023 by which the State Government has accorded approval as obtaining under Section 17(a) of the Prevention of Corruption Act, 1988 for conduct of investigation in terms of the crime so registered in Crime No.4 of 2022 for the aforesaid offences.The aforesaid facts became necessary to be noticed in the light of the memo filed by the learned Additional Government Advocate indicating the dates along with photographs. Any further 19 observation beyond what is already narrated hereinabove would cause prejudice to the 3rd respondent or the investigating agency. Therefore, this Court would hold its hands for any further observations in the light of the approval being granted for investigating into the crime in Crime No.4 of 2022 under Section 17(a) of the Prevention of Corruption Act, 1988.
10. In the light of the approval being accorded, the learned counsel for the petitioner submits that the grievance of the petitioner is redressed. Therefore, with the aforesaid narration, the petition stands disposed.
Consequently, I.A.No.3 of 2023 also stands disposed.
Sd/-
JUDGE Bkp