IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 22ND SEPTEMBER 2009 / 31ST BHADRA 1931 Crl.MC.No. 1413 of 2008() ----------------------------------- AGAINST F.I.R.06/07 OF VIGILANCE AND ANTI CORRUPTION BUREAU, ERNAKULAM IN VC.6/2007 of ENQUIRY COMMR. & SPL. JUDGE, THRISSUR .................... PETITIONER/ACCUSED NO.1: --------------------------------------- P.M. MOHAMMED ALI, SON OF LATE M.K.ASSANKOYA, AGED 51 YEARS, SOJA VEEDU, MADHURAVANAM ROAD, CIVIL STATION (PO), KOZHIKODE-673020, NOW WORKING AS MANAGING DIRECTOR KERALA URBAN & RURAL DEVELOPMENT FINANCE CORPN., 5TH FLOOR,TRANS TOWER,VAZHUTHAKADU,THIRUVANANTHAPURAM. BY ADV. MR.A.V.THOMAS MR.G.SHRIKUMAR MR.SHAJI P.CHALY MR.JOJO GEORGE MR.NIDHI SAM JOHNS RESPONDENTS/STATE & COMPLAINANT: ------------------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. THE DIRECTOR, VIGILANCE AND ANTI CORRUPTION BUREAU, THIRUVANANTHAPURAM. 3. THE DEPUTY DIRECTOR, VIGILANCE AND ANTI CORRUPTION BUREAU, ERNAKULAM. R1 TO R3 BY PUBLIC PROSECUTOR MR.AMJAD ALI. THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 22/09/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: rs. M.SASIDHARAN NAMBIAR,J. ------------------------------------------ CRL.M.C.NO.1413 OF 2008 ------------------------------------------ Dated 22nd September 2009 O R D E R Petitioner is the first accused in crime No.6/2007 of Vigilance and Anti Corruption Bureau, Ernakulam registered under Annexure-A1 FIR for the offences under Sections 13(1)(d) read with Section 13 (2) of Prevention of Corruption Act and 120 B of Indian Penal Code. Immediately property of the second accused was acquired by the Government for Pattupurackal town planning scheme of GCDA. Subsequently, it was found that a small portion of the property cannot be utilized for the purpose for which it was acquired. Executive committee decided to sell the property. Tender was invited in 2000. But no tender was received for the tender notice dated 7/1/2000. For the tender notice dated 30/9/2000 one Nadanan submitted a tender quoting Rs.7,500/- per cent and Thomas quoting Rs.20,000/- per cent. As per decision No.266/2000-01, Executive committee of GCDA decided to reject the tenders. Second accused, the CRMC 1413/08 2 owner from whom the property was acquired submitted an application on 7/11/2000 to purchase the property. The Executive committee authorised petitioner, the Secretary to negotiate with second accused and report the minimum value of the property on the next meeting. On 7/9/2002, Executive committee decided to sell the property to second accused for Rs.20,000/- per cent. Challenging the said decision and alleging that the consideration fixed is too low and claiming that land value would be not less than Rs.80,000/- per cent one Babu Antony filed O.P.27110/2002. O.P.27193/2002 was filed raising similar contentions by the General Secretary of GCDA employees Union and General Secretary of GCDA staff association. Under Annexure- A6 judgment contentions raised by Babu Antony was considered by the Division Bench of this court, in detail. Annexure-A6 judgment shows that even though it was contended that Thrikkakara Gramapanchayat wanted this property and the property would have fetched much more value than for which it was sold to second accused, in spite of the notice Thrikkakara Gramapanchayat, the second respondent in the writ petition, did not appear or raise any claim. It also shows that though writ petitioner was asked whether CRMC 1413/08 3 he is willing to purchase the land for more value or could arrange anybody who is prepared to purchase the land for more than Rs.20,000/-, writ petitioner was not prepared to purchase and failed to arrange anybody. Hence ultimately finding that there was no reason to interfere with Ext.P2 decision taken therein by the Executive committee, to sell the property to second accused, the writ petition was dismissed. Under Annexure-A7 judgment O.P.27193/2002 was also dismissed taking note of the dismissal of O.P.27110/2002 under Annexure-A6 judgment. 2. It is clear from the file made available by the learned Public Prosecutor that thereafter petitioners in O.P.27193/2002 filed a complaint before the Government which was got enquired into by the vigilance department and based on the report on the preliminary enquiry, Annexure-A1 FIR was registered. Learned counsel appearing for the petitioner pointed out that the entire aspects were considered by the Division Bench under Annexures-A6 and A7 judgments and there is absolutely no reason to proceed against the petitioner, when it is the Executive committee who has decided to sell the property. It was also pointed out that as is clear from Annexure-A6 judgment property is CRMC 1413/08 4 not having any direct road access but is lying at a depth more than 20 feet from Irumpanam-Kalamassery road and therefore, there is no justification to allege any conspiracy with second accused. Learned counsel also pointed out that though statement submitted by the Inspector of Police, Vigilance and Anti Corruption Bureau shows that Tahsildar valued the property at Rs.44,000/- per cent based on the sale deeds executed by the GCDA, those properties cannot be compared to the disputed property as the said property was having road frontage on two sides and in such circumstances, continuation of the prosecution is only an abuse of process of court and is to be quashed. 3. Learned Public Prosecutor submitted that though the Executive committee has decided to sell the property to the second accused, the Executive committee had earlier authorised the petitioner to negotiate with second accused and fix the consideration and petitioner should have brought to the notice of the Executive committee all the relevant facts and rules and he omitted to bring to the notice of the Executive committee that sanction of the Government is necessary to dispose the land acquired as provided under Rule 55 of Kerala Development Authorities Rules, 1984 and it CRMC 1413/08 5 shows that there was a conspiracy. It was also argued that even though in response to the second tender notice, tender was submitted to purchase the property for Rs.20,000/-, the Executive committee finding that the value offered is less than the value it should fetch did not accept the tender and in such circumstances, petitioner should not have agreed for sale of the property for Rs.20,000/- per cent in 2002 and the preliminary enquiry conducted by the Vigilance shows that value of the property at the relevant time was much more than for which it was sold to the second accused and in such circumstances, investigation of the case may not be interfered. Learned Public Prosecutor also submitted that as it is at the investigation stage, question whether the other members of the Executive committee are also liable would also be investigated and so the case may not be terminated at this stage. 4. It is clear from Annexures-A6 and A7 judgments of the Division Bench that when the Executive committee of GCDA decided to sell the property to the second accused, from whom the property was earlier acquired, at the rate of Rs.20,000/- per cent, two employee's unions of GCDA had approached this court by CRMC 1413/08 6 filing O.P.27193/2002. Another individual claiming to be public spirited also approached this court by filing O.P.27110/2002. Contentions raised in both the writ petitions are similar. According to the writ petitioners, value fixed for the sale of the property was far less than the actual value. In such circumstances, the Division Bench directed the petitioner in O.P.27110/2002 to inform whether he is willing to purchase the property for more value than for which it was decided to be sold to the second accused and whether he could arrange anybody to purchase the property by paying more. Annexures-A6 and A7 judgments show that the writ petitioner was not prepared to purchase it and he could not arrange anybody else to purchase it. In such circumstances, considering all the relevant facts, the Division Bench finding that decision of the Executive committee is legal, valid and not vitiated, upheld the decision to sell by dismissing the writ petitions. Same petitioners thereafter approached the Government and got a vigilance enquiry conducted. Though the statement disclosed that Tahsildar has valued the property at Rs.44,000/- per cent, learned counsel appearing for the petitioner made available a copy of sale deed relied CRMC 1413/08 7 on by the Tahsildar, obtained by enforcing the right available under the Right to Information Act, to show that value of the property considered by the Tahsildar cannot be the value of the disputed property. I find force in the submission. When it is admitted case that disputed property lies at a depth of above 20 feet from Kalamassery-Irumpanam road, its value cannot be compared to the property considered by the Tahsildar as said property is having road frontage on two sides. Report of the Government Secretary, Local Self Government, in the file made available by the Public Prosecutor, shows that the Executive Committee had considered all the aspects including the absence of frontage, fact that it is lying at a depth of above 20 feet from the road and there is no direct road access and value paid for its acquisition was for far less, while deciding to sell the property for Rs.20,000/- per cent. In such circumstances, I find no reason to hold that the property was sold for lesser than the value which it would fetch at that time. 5. The trump card of the vigilance is that petitioner, as the Secretary of the GCDA, did not bring to the notice of the Executive committee regarding Rule 55 of Kerala Development Authorities Rules, 1984 as CRMC 1413/08 8 according to them, a property acquired by the Government cannot be sold, without the sanction of the Government. As rightly pointed out by the learned Senior counsel appearing for the petitioner, on going through Rule 55 of the Rules, I cannot agree with the submission. Rule 55 reads. “55. Power to dispose the land- (1) The Authority may retain or may lease, sell exchange or otherwise dispose of any land vested in it or acquired by it for implementation of Town Planning Schemes: Provided that the Authority shall obtain the prior approval of government for the sale, lease, exchange, mortgage or disposal of the whole or substantially the whole of any particular undertaking of the Authority.” Under Sub Rule 1 the Authority for whom the property is acquired is empowered to retain or lease, sell exchange, or otherwise dispose of any land vested in CRMC 1413/08 9 it or acquired by it, for implementation of town planning scheme. Said power is absolute. True, the proviso curtails the power. Under the proviso, the Authority shall obtain prior approval of the Government for the sale, lease, exchange, mortgage or disposal of the property. But such sanction is necessary, only if the sale, lease, exchange, mortgage or disposal of the property is as a whole or substantially whole of any particular undertaking of the Authority. Therefore, proviso does not curtail the power of the Authority, under Sub Section 1 of Rule 55, to sell a small portion of the property acquired or vested in it provided it is not the whole or substantially the whole of any particular undertaking of the authority. There is no case that the property decided to be transferred to the second accused is either the whole or substantially the whole of any particular undertaking of the Authority. Therefore, petitioner cannot be find fault for not bringing to the notice of the Executive Committee, the provisions of Rule 55 of the Kerala Development Authorities Rules, 1984. In such circumstances, continuation of the prosecution as against the petitioner is only an abuse of process of the court. It is clear that vigilance CRMC 1413/08 10 enquiry is initiated at the instance of the petitioners, who approached this court unsuccessfully. It shows that the petition is malafide. Petition is allowed. Investigation of vigilance case No.6/2007 pending before the Enquiry Commissioner and Special Judge, Thrissur as against the petitioner is quashed. M.SASIDHARAN NAMBIAR, JUDGE. uj.