IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:
26. 08.2013 CORAM THE HONOURABLE MR.JUSTICE C.T.SELVAM CONT.P.No.932 of 2012 and Sub.Appln.Nos.191,301 and 302 of 2012 Balakrishnan ... petitioner Versus 1.T.K.Rajendran Director Vigilance and Anticorruption 2.K.P.Maghendran Ex-Director Vigilance and Anticorruption Contempt petition filed under Section 11 of Contempt of Courts Act, 1971 to punish the respondent for disobeying the orders of this court dated 27.08.2010 made in Crl.O.P.No.10255/2010. For Petitioner : Mr.Abudukumar Rajarathnam for Mr.S.Ashok Kumar For Respondents : Mr.Somayaji, AGP For Intervenor : Mr.P.S.Raman Senior Counsel for Mr.V.Kuberan for Rank Associates ******* ORDER
This petition seeks an order of this court punishing the respondents for contempt of its order passed in Crl.O.P. No.10255/2010 on 27.08.2010.
2. In Crl.O.P.No.10255/2010 the petitioner had sought that a direction be issued to the Director, Vigilance and Anti Corruption, Chennai, towards registration of a case on the basis of the petitioner's complaint dated 10.06.2009.
3. For easier understanding of the issue involved, it would be appropriate to reproduce the order of this court passed in Crl.O.P.No.10255/2010 on 27.08.2010. ".This petition has been filed under Section 482 Criminal Procedure Code seeking direction to the respondent towards registration of a case on the basis of the complaint given by the petitioner dated 10.06.2009.
2. The complaint of the petitioner reads as follows - I am residing at the above mentioned address. I got General Power from one Chinniyan and others for S.No.299/1A176 Acre and S.No.230/7A. 3.00 Acres in Koyambedu Thirumangalam village. Some cases are pending between us and Sri Krishna Tiles Pottaries (P) Ltd. for the above mentioned land W.P.No.12613/01 is pending before the Hon'ble High Court at Madras. Moreover Sri Krishna Tiles Pottaries (P) Ltd. sold the above said 4.76 acres of land to Ozone Construction (P) Ltd. We have impleaded them as a party in W.P.No.12613/01 which is pending before the Hon'ble High Court. In the meanwhile on 20.07.2002 I sent my objections to CMDA not to issue planning permission in the above said 4.76 acres of land, till the disposal of W.P.No.12613/01. I filed a writ petition in W.P.No.16346/07 against 1. CMDA2M/s.Sri Krishna Tiles 3.M/s.Ozone Constructions (P) Ltd. on 02.05.07 the Hon'ble High Court granted interim injunction against CMDA and others for not to give planning permission in the above said 4.76 acres of land. Moreover on 28.06.07 the Hon'ble High Court has ordered in W.P.No.16346/07 that CMDA to consider my objections dated 20.07.2002 within 4 weeks and also give a fresh objections within a week. I had given my objections on 16.07.2007 In this situation the then CMDA member secretary had sent a letter dated 16.06.2008 on 20.05.2008 to the Secretary, Housing and Urban Development Department. In that letter, he had not mentioned about the issue with regard to giving permission to M/s.Ozone Projects (P) Ltd. And concealed my objections and the above mentioned pending cases. The CMDA Member Secretary had willfully omitted to state my objections even after the order of the Hon'ble High Court. I state that by suppressing the real state of affairs to the Secretary, Housing and Urban Development Department, the then Member Secretary, CMDA attempted to get planning permission in favour of M/s.Ozone Projects Private Limited. This act by abusing his position as a public servant and obtaining a valuable thing i.e. Planning Permission in favour of M/s.Ozone Projects Private Limited is punishable u/s 13(1) (d) (ii) of the Prevention of Corruption Act, 1988. I understand apart from Mr.Mohan the then Member Secretary, other officials in collusion with M/s.Ozone Projects Private Limited are involved in the said offence. Thus I request you to register a case and investigate the matter against Mr.Mohan, Ozone Projects (P) Ltd. and others.
3. The learned counsel for the petitioner would state that in seeking the permission of the Secretary, Housing and Urban Development Department, the Member Secretary, CMDA was duty bound to inform the objections if any to the grant of planning permission. The position that the above said rule has not been complied with itself would be sufficient to register a case under Section 13 (1)(d)(ii) of the Prevention of Corruption Act, 1988.
4. Only upon registration of a case and investigation thereupon it would be possible to ascertain if or not a offence stood committed. The respondent has filed a counter informing that the challenge of the petitioner herein to the grant of patta to a rival party in W.P.No.12613/01 was negated under orders of this Court dated 25.04.2002. In respect of the orders of this Court in W.P.No.16346/07 dated 06.07.2007 wherein a direction was issued to the authorities viz. CMDA to dispose of the representation/objection of the petitioner before considering the application for planning permission pending before it, it is informed that CMDA had acted after obtaining an opinion of its senior law officer as also an Additional Advocate General of this Court and that the action of CMDA was well within legal ambits. The counter also informs of an enquiry officer having perused the documents and enquiry report. A senior officer of the respondent upon perusal had opined that there was no material to register a case, as requested by the petitioner. In response to what is informed in the counter, the learned counsel appearing for the petitioner would place reliance upon the judgment reported in 2007 (1) Supreme Court Cases 110 [M.C.Mehta (Taj Corridor Scam) v. Union of India and others]. and particularly Paragraph 29 of such decision wherein the Apex Court had held as follows - 29. In R. Sarala v. T.S. Velu the facts were as follows. A young bride committed suicide within seven months of her marriage. An inquiry under Section 174(3) CrPC was held. The Magistrate conducted the inquiry and submitted a report holding that due to mental restlessness she had committed suicide and no one was responsible. He further opined that her death was not due to dowry demand. However, the police continued with the investigation and submitted a challan against the husband of the deceased and his mother for the offence under Sections 304-B and 498-A IPC. The father of the deceased was not satisfied with the challan as the sister-in-law and the father-in-law were not arraigned as accused. Therefore, the deceaseds father moved the High Court under Section 482 CrPC. A Single Judge of the High Court directed that the papers be placed before the Public Prosecutor. He was asked to give an opinion on the matter and, thereafter, the Court directed that an amended charge-sheet should be filed in the court concerned. This Court held as follows: In this case the High Court has committed an illegality in directing the final report to be taken back and to file a fresh report incorporating the opinion of the Public Prosecutor. Such an order cannot stand legal scrutiny. The formation of the opinion, whether or not there is a case to place the accused on trial, should be that of the officer in charge of the police station and none else. There is no stage during which the investigating officer is legally obliged to take the opinion of a Public Prosecutor or any authority, except the superior police officer in the rank as envisaged in Section 36 of the Code. A Public Prosecutor is appointed, as indicated in Section 24 CrPC, for conducting any prosecution, appeal or other proceedings in the court. He has also the power to withdraw any case from the prosecution with the consent of the court. He is the officer of the court. Thus the Public Prosecutor is to deal with a different field in the administration of justice and he is not involved in investigation. It is not the scheme of the Code for supporting or sponsoring any combined operation between the investigating officer and the Public Prosecutor for filing the report in the court. 5. Placing reliance on the above, the learned counsel would state that the question of whether a case existed towards putting up an accused for trial would be a matter for investigation and the decision thereon would rest solely with the investigating officer. Thus, an investigation could not be avoided by placing reliance on the opinions rendered by law officers. Again, the learned counsel would inform that as per G.O.(D) No.1, P&AR (Per-N), dated 28th January 1992, it would be for the Government in consultation with the Vigilance Commissioner to order preliminary enquiry/detailed enquiry/ registration of regular case, as the person whose action is complained of is the Chief Executive Officer of CMDA which is a statutory body and he also happens to be a member of the All India Services.
6. The learned counsel for the petitioner points out that the petitioners objections had been overruled by the CMDA and the same was under challenge under separate writ petitions. The Member Secretary of CMDA had addressed the Secretary to Government Housing and Urban Development Department under communication dated 16.05.2008 seeking approval for planning permission. The objections raised by two others had been informed but the objection of this petitioner stood suppressed.
7. I heard the learned Government Advocate on the above submissions.
8. On the facts as put forth, this Court is of the view that the same call for a fair appreciation on whether the allegations made, raise concerns befitting an investigation. A proper decision in this regard may be arrived at upon conduct of a preliminary enquiry. Hence, this Court requires the respondent to direct the conduct of a preliminary enquiry in respect of the complaint of the petitioner dated 10.06.2009. Should such preliminary enquiry reveal the commission of any offence, it would follow that a case be registered and investigated upon.
9. With the above direction, the petition is disposed of.".
4. Pursuant to the above direction a preliminary enquiry report stands conducted and the relevant portions thereof read as follows: ".6. The plan approval application of M/s. Ozone Project Private Ltd., was submitted on 22.03.2008 and plan approval was issued by the CMDA on 13.04.2009. A.O. Tr.R.Mohan, I.A.S., was working as Member Secretary, CMDA for a short period from 21.02.2008 to 23.07.2008 (5 months) 7. Originally, the lands were owned by one Tr.A.K.Ranganathan, who acquired the Zamindari rights of Thirumangalam Village, Saidapet Taluk, Chengalpet in 1929 in his name and also acquired private kambattam lands over a large track of lands measuring about 200 acres in his wife Smt.Karpagambal's name under a sale deed dated 12.12.1929 bearing Doc.No.1937 of 1929. Subsequently, Kudivaram rights of other lands were purchased from the Ryots for a consideration by way of several registered sale deeds executed in his wife's name during the period between 1930 and 1945. Thus, Rao Bahadur A.K.Ranganathan became entitled to Melvaram Zamindari rights as well as Kudivaram rights in the entire extent of 200 acres and had also purchased the Kambattam lands under various sale deeds. The lands so acquired by him were settled in favour of his sons and daughter-in-law by four settlement deeds bearing Doc.No.1009/1944, 980/1954, 981/1954 & 1785/1956 and the beneficiaries under the 3 such settlement deeds, have portioned the lands so settled by two portion deeds dated 27.11.1979 and 26.6.1972. There are long pending dispute over the ".title of the property". and hence in this discreet enquiry it is not looked into as the matter is sub-judice. .....
11. The perusal of the CMDA files disclosed that the planning permission file of M/s. Ozone Project Private Limited was processed by the Planning Assistant, the Assistant Planner, the Deputy planner and the Chief planner before circulating to the Member Secretary, the Vice Chairman and Multi Storied Building Panel. The members of the MSB panel convened a meeting on 30.04.2008 and passed a resolution recommending the planning approval for Ozone Projects Pvt Ltd. They also obtained opinion from the Senior Legal Officer, CMDA on 08.04.2008 and he gave opinion that the documents produced by M/s. Ozone Projects (P) Limited is fit for planning permission approval. A.O.Tr.Mohan, I.A.S. Member Secretary forwarded the file to the Secretary to Government, Housing and Urban Development Department, Secretariat, Chennai along with the recommendation of the MSB panel on 20.05.2008. Before the recommendation, the objection filed by Tr.Balakrishnan @ Parthi Baskar was considered on 05.09.2007. However, the reply for the rejection of the objection was only given on 08.09.2008, after the recommendation of the planning approval of M/s. Ozone constructions pvt limited. .....
19. In his proposal, he did not mention about the W.P.No.16346/2007 filed by on Tr.B.Balakrishnan @ Parthi Baskar against CMDA and onthers and direction of the Hon'ble High Court of MAdras dated 28.06.2007, to consider the objections and whether he considered the objections raised by Tr.B.Balakrishnan @ Parthi Baskar and connected facts. Tr.B.Balakrishnan @ Parthi Baskar has also filed a fresh objection to the Member Secretary, CMDA, Chennai on 12.07.2007. ...........
24. The objections filed by Tr.B.Balakrishnan @ Parthi Baskar were considered by the CMDA officials and the petitioner Tr.Parthi Baskar and his counsel attended a meeting in the CMDA office on 05.09.2007 and produced some documents and the file was later referred to the Additional Advocate General for his legal opinion and he suggested for rejection of the objections. As per his opinion, the petitioner was informed about the rejection of his objection on 08.09.2008 (File No.C3/15790/2007 Vol No.4/4). There is no irregularity in the processing of the file and all the procedure laid down in the CMDA rules were followed.
25. Two writ petitions in W.P.No.4491/2004 and W.P.No.5296/2004 were filed by the Executive Officer, Arulmigu Thirumangaleeswaran Temple, Arumbakkam, Koyambedu, Chennai, claiming right of 1.36 acres of lands in Survey No.230/2, 1.59 cents of lands 227/3 and 16 cents of land in Survey No.227/2 of Thirumangalam village for which planning permission is sanctioned for Ozone construction Pvt Limited. The two writ petitions were dismissed on 1.3.2004. Hence, the Special Leave petition in 28065/2008 was filed before the Hon'ble Supreme Court of India regarding continuation of possession of the above lands by the petitioner i.e Trustees of the Thirumangaleeswaran Temple. But, the final order in the case is not delivered, so far. In this connection, the Principal Secretary/ Commissioner, HR& CE has addressed the Member Secretary, CMDA, Chennai on 04.10.2008 requesting not to sanction planning permission for construction by M/s. Ozone Projects Pvt Limited in the temple lands of Thirumangaleeswaran Temple till the Special Leave Petition is disposed of by the Hon'ble Supreme Court of India.
26. However, the orders of the High Court in W.P.No.16346/2007 dated 28.06.2007 to consider the objections of Tr.B.Balakrishnan @ Parthi Baskar is an important development in the plan approval processing and 4.76 acres is claimed by Tr.Parthi Baskar out of 42.53 acres of lands owned by M/s. Ozone construction limited for which plan approval was issued. But A.O.Tr.R.Mohan I.A.S., in his proposal to the Government recommending planning permission did not mention about the writ petition 16346/2007 and the High Court direction and objections if any considered by the CMDA A.O.Tr.R.Mohan,I.A.S forwarded his recommendation to the Secretary to Government, Housing and Urban Development Department, Secretariat, Chennai on 16.05.2008 and the opinion from the Additional Advocate General was obtained after the date of his recommendation. He has suppressed these facts to the Secretary to Government in his letter proposing plan approval.
27. Enquiry disclosed the following irregularities committed by A.O.Tr.Mohan, I.A.S while recommending the planning permission file of M/s. Ozone Projects (P) Limited, Chennai. (1) In the High Court orders in writ petition in W.P.No.16346/2007 dated 28.06.2007, the High Court directed the Member Secretary, CMDA, Chennai to dispose the representation/objection within period of four weeks. But, the Member Secretary, CMDA, Chennai to dispose the representation/objection within period of four weeks. But, the Member Secretary, CMDA considered the fresh objection of Tr.Parthi Baskar @ Balakrishnan dated 12.07.2007 and the reply for this representation was given to the petitioner only on 08.09.2008. The High Court direction was not fully followed by the Member Secretary, CMDA, Chennai. (2) A.O.Tr.Mohan, I.A.S has suppressed the fact of filing the writ petition (W.P.No.16346/2007) by Tr.Parthi Baskar @ Balakrishnan before the Hon'ble High Court of Madras and the final orders of the court and further action taken by him, in his recommendations to the Secretary to Government, Housing and Urban Development Department, Secretariat, Chennai, on 16.05.2008 (3) He has obtained the recommendation of Multi Storied Building Panel and opinion of Senior Counsels, CMDA before his recommendation to the Secretary to Government, Housing and Urban Development Department, Secretariat, Chennai-9. But, he has obtained the opinion of the Additional Advocate General only after his recommendation as directed by the Secretary to Government, Housing and Urban Development Department, Chennai-9.
28. The Preliminary Enquiry conducted through sources has revealed that Tr.M.R.Mohan, I.A.S (A.O) formerly Member Secretary, CMDA ., Chennai, has committed irregularities, discussed in this report, while sending his recommendations to the Government for the plan approval of M/s. Ozone Project (P) Ltd, Chennai 29. It is requested that the facts gathered during the course of preliminary enquiry, discussed in this report, may be brought to the notice of the Government for taking appropriate action.
5. Learned counsel for petitioner submitted that a bare reading of the preliminary enquiry report disclosed commission of offence under Section 13(1) (d) (ii) of the Prevention of Corruption Act, 1988. While forwarding the file pertaining to planning approval for M/s. Ozone Projects Private Limited, to the Secretary, Housing and Urban Development Department, Chennai, Mr.M.R.Mohan, then Member Secretary had discussed writ petitions No.28353/2003, 18955/2004 and W.P.No.15577/2005 and the dismissal thereof but had suppressed the orders of this court passed in W.P.No.16346/2007 as also the objections of the petitioner.
6. Submitting that the orders of this court called for a full enquiry and the passing off of the wrong doings of Mr.M.R.Mohan as 'irregularities' amounted to interference with the administration of justice, learned counsel would submit that as the conduct of the respondent reflected that they were in collusion with the wrongdoers, this court would direct investigation by an independent agency. That no further action had been taken upon the preliminary report only made the same all the more necessary.
7. Both respondents have filed counters denying any wrong doing.
8. This petition initially stood filed against the first respondent. Thereafter, the petitioner was permitted to implead the second respondent on 21.08.2012 and notice was issued also to such respondent.
9. The preliminary report stood forwarded to Government for appropriate action on 22.08.2011. The second respondent has been the Director of Vigilance and Anti-corruption between 08.06.2011 and 25.12.2011. The preliminary report was forwarded to Government for appropriate action when the second respondent held such office. First respondent functioned as Director of Vigilance and Anti-Corruption from 28.12.2011.
10. Learned Advocate General appearing on behalf of the respondents submitted that to attract contempt jurisdiction of this court, there should be violation of specific direction issued by it. In the instant case, the direction stood issued for conduct of a preliminary enquiry. Such preliminary enquiry stood conducted and the same revealed only irregularities as distinct from illegalities. Due procedure for conduct of preliminary enquiry implicitly stood followed. As the orders of this court fully stood complied with, no contempt whatsoever stood made out. There could be no inference of commission of any offence under Prevention of Corruption Act as the conduct of Mr.M.R.Mohan might be a bona-fide mistake. On examination of the preliminary enquiry report, Government had decided to drop further action against Mr.M.R.Mohan on 30.07.2012. He retired from service on superannuation on 31.07.2012. Learned Advocate General would add that in the present case there had been no deliberate disobedience of the orders of this court and the petitioner had moved the present contempt petition towards buttressing his case in Special Leave Petition No.28065/2008.
11. In reply, learned counsel for petitioner would point out that at paragraph 24 of the preliminary enquiry report, the second respondent has stated that there is no irregularity in the processing of the file and all the procedure laid down in the CMDA rules were followed. However, the same respondent in para 28 informed that Mr.M.R.Mohan, I.A.S. (A.O) formerly Member Secretary, CMDA, Chennai, has committed irregularities, discussed in the report, while sending his recommendations to Government for the plan approval of Ms. Ozone Projects (P) Ltd, Chennai. It was pertinent that in response to the proposal of the Multi storied Building panel, (of which Mr.M.R.Mohan) the Secretary to Government Housing and Urban Development Department under communication in (Ms) No.136, dated 13.06.2008, had granted approval subject to the following two conditions among other conditions:
1. CMDA shall satisfy itself that there is no interim order prohibiting them from granting planning permission and there is no contra material or claim 2) Confirming the clear title over the site in question. Para 7 of the preliminary enquiry report acknowledges there are long pending disputes over title to the property. However, it goes on to state, 'hence in the discreet enquiry it is not looked into as the matter is subjudice'. After the communication of Secretary to Government Housing and Urban Development Department in (Ms) No.136, dated 13.06.2008, the opinion of Additional Advocate General had been obtained. Counter of the second respondent informed that ".opinion was also obtained from the Additional Advocate General on 21.07.2008 that there are no interim orders prohibiting CMDA from granting planning permission and that there are no contra materials or claim towards the title. He had also stated in his opinion that the claims of various individuals including the petitioners, which prima facie seems to be vexatious, will not obstruct the statutory authority to exercise their statutory functions in granting planning permission. He had also further opined that M/s. Ozone Construction (P) Ltd., has the perfect title over the property purchased by them.".
12. Considered. It is clarified that this court is proceeding under Article 215 of the Constitution of India.
13. While admitting to wrong doing on the part of Mr.M.R.Mohan then Member Secretary, CMDA, in not informing Secretary to Government, Housing and Urban Development Department regards the orders of this court in W.P.No.16346/2007 as also the objection of Tr.B.Balakrishnan @ Parthi Baskar, the second respondent has informed the same merely to be irregularities. It is pertinent that in according sanction, the Secretary to Government, Housing and Urban Development Department has stipulated the following conditions:
1. CMDA shall satisfy itself that there is no interim order prohibiting them from granting planning permission and there is no contra material or claim 2) Confirming the clear title over the site in question. Thereafter, the opinion of the Additional Advocate General informing the rival claims to property in pending legal actions to be vexatious (really a decision left best to the court) had been obtained. Towards informing the commission of irregularities as distinct from offences reliance is placed on para 21 of the Director of Vigilance and Anti Corruption manual, which was approved by Government of Tamilnadu in G.O. (3D) No.2, P& AR (Personnel-N) Department, dated 06.01.1993 and reads as follows: ".DISPOSAL OF THE ENQUIRY WHEN THERE ARE NO TANGIBLE INSTANCES OF CORRUPTION When the preliminary enquiry shows that there are no tangible instances of Corruption but only some departmental irregularities, etc. the matter can be closed by sending a preliminary enquiry report accordingly"..
14. Section 13 (1) (d) (ii) of The Prevention of Corruption Act, 1988 reads as follows:
13. Criminal misconduct by a public servant. (1) A public servant is said to commit the offence of criminal misconduct- ........ (d) if he,- .. (ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; 15. It hardly can be gainsaid that the action of Mr.M.R.Mohan in not informing the Secretary to Government, Housing and Urban Development Department regards the orders of this court in W.P.No.16346/2007 and non disclosure of objections of Mr.Balakrishnan @ Parthy Baskar had the direct result of grant of approval to M/s. Ozone Projects (P) Ltd. It would be possible not to pass off the wrong doing of Mr.M.R.Mohan as a mistake as suggested by the learned Advocate General. Ignorance of law, even to the lay man is no excuse. One such as the second respondent, who had been the Director of Vigilance and Anti-Corruption cannot be allowed to inform ignorance of the provisions of the Prevention of Corruption Act, 1988 or to pretend that he has failed to realize what is obvious. Resorting to subterfuge and attempting to draw a red herring across the trail by reading an offence to be an mere irregularity only compounds the wrong doing.
16. We are of the considered view that a deliberate attempt stands made to bypass the orders of this court by resorting to the course adopted. We would hold the second respondent guilty of contempt of court. The first respondent shall stand discharged. We merely may observe that Mr.P.S.Raman, learned Senior Counsel had made oral submissions on behalf of the intending intervenor M/s.Ozone Projects (P) Ltd in Sub A.No.191/2013 which stands not admitted and will now stand dismissed. It is necessary to set right the wrong that has resulted owing to the wilful disobedience of the orders of this court by the second respondent. Therefore, a direction is issued to the Director, Vigilance and Anti-Corruption, to cause registration of a case in respect of the wrong doings in obtaining approval for M/s.Ozone Projects (P) Ltd. It is expected that a fair and just investigation would follow both regards Mr.M.R.Mohan and also such others as may be involved in the wrong doing. Even while holding the second respondent guilty of contempt, we would, considering the representation that imposition of any sentence would have very grave consequences on his career prospects and expressing the fond hope that such contemptuous conduct will not be repeated, we would accept his apology and accordingly choose not to punish him. Connected sub applications are closed. kpr