THE HON'BLE THE CHIEF JUSTICE SHRI NISAR AHMAD KAKRU and THE HON'BLE SHRI JUSTICE VILAS V. AFZULPURKAR Dated: 10-08-2011 WRIT PETITION Nos. 794, 6604 AND 6979 OF 2011 Between: P. Shankar Rao ... PETITIONER AND The Government of Andhra Pradesh, rep., by its Principal Secretary, Industries Department, Secretariat, Hyderabad and others …RESPONDENTS HON’BLE THE CHIEF JUSTICE SHRI NISAR AHMAD KAKRU AND THE HON’BLE SHRI JUSTICE VILAS V. AFZULPURKAR Writ Petition Nos.794, 6604, 6979 of 2011 COMMON ORDER: (Per the Hon’ble the Chief Justice, Shri Nisar Ahmad Kakru) Writ Petition No.794 of 2011 1. A Member of the Legislative Assembly (MLA) Secunderabad Cantonment (SC) Constituency, Andhra Pradesh, alleging misappropriation of public property against Late Dr. Y. S. Rajasekhara Reddy, Chief Minister of Andhra Pradesh and beneficiaries thereof through transfer, lease, licenses grants etc., sought the indulgence of the Chief Justice, High Court of Andhra Pradesh for registration of a crime which evoked the response of the then Acting Chief Justice of this Court on 22-11- 2010, directing the Registrar (Judicial) of this Court to register the letter as a “Taken-up case” and was numbered as Writ Petition No.29358 of 2010. 2. During pendency of the above said “Taken-up Writ Petition No.29358 of 2010”, another letter was filed before the Registrar (Judicial) by the same MLA for taking on record the documents accompanying therewith. The letter along with annexures was posted by the Registrar (Judicial) before the 5th Division Bench, being seized of “Taken-up Writ Petition No.29358 of 2010” and the Division Bench passed the following order: “The scope of this Taken-up case and the scope of the relief sought to be taken in this present letter dated ..11.2010 is distinct and different on separate cause of actions requiring to implead various corporations and companies said to have been floated by him as annexed in Annexures-1 to 3. We are therefore of the opinion that this letter requires to be placed by the Hon’ble Chief Justice for taking appropriate action. The Registry is directed to place this letter before the Hon’ble Chief Justice for taking appropriate action”. 3. Pursuant to the above direction of the Division Bench, orders were sought by the Registrar (Judicial) from the Chief Justice, who directed its posting as per roster. Accordingly, it was registered as “Taken-up Writ Petition No.794 of 2011”. There are two more Writ Petitions No.6604 and 6979 of 2011 claiming similar relief almost on similar assertions, and we propose to dispose of all the three together by this common judgment. 4. Proceeding in that direction, we would like to begin with “Taken-up Writ Petition No.794 of 2011”, wherein it is averred that Dr. Y.S. Rajasekhara Reddy extended huge benefits in the shape of allotment of lands, mineral rights, licences, SEZs rights to develop ports all along the Eastern coast forming part of Eastern Andhra Pradesh apart from permission for star hotels and complexes in and around Hyderabad and other major cities in Andhra Pradesh. It is also averred that the corporates and individuals, who benefited from these official favours were in turn made to invest kickback amounts into several individual and corporate businesses of the then Chief Minister’s son Sri Y. S. Jaganmohan Reddy, 52nd Respondent herein. It is also alleged that on account of the aforesaid Quid Pro Quo arrangement, the income of respondent No.52 rose from Rs.11 lakhs in 2004 to Rs.43,000 Crores by the time of his father’s demise. 5. In the letter and the additional material, the petitioner furnishes information as to the manner in which thousands of crores of kickbacks were paid to the family of the then Chief Minister. In substance, it is averred that respondent No.52 and his family defrauded the public exchequer under the clout of the then Chief Minister and managed transfer of public properties and permissions, leases and licenses favouring various companies at throw-away prices in lieu of thousands of crores of kickbacks, paid by the individuals and corporates to respondent No.52 which was routed through the investments made in his (respondent No.52) companies and businesses, and it is in furtherance of the said purpose that investments in power companies, print and television media and other businesses of the said respondent (No.52) were made and the value of the shares in such companies grew at a premium rate of over 100 times apparently over and above the value of the share. It is also averred that the beneficiaries of the official favours from the late Chief Minister resorted even to money laundering by adopting Hawala routes through tax haven countries such as Mauritius and these monies are brought into the companies and businesses of respondent No.52 at huge premium, though the track record and business assets of companies of respondent No.52 had hardly any achievements, assets to its credit or business on hand. It is also stated that apart from money laundering, as above, huge cash consideration received as kickbacks were brought in as investments by non- descript companies said to have been located in different parts of India which have hardly any business, income or means to support such huge investment, and favours to individuals and companies by the former Chief Minister are said to be traceable and linked to the phenomenal growth of the companies and businesses of respondent No.52 resulting from a huge corruption by respondent 52, his father and his family which requires thorough probe into each transaction by a central investigating agency, therefore, petitioner seeks a writ for investigation by the Central Bureau of Investigation (CBI). 6. Several beneficiaries, of such largesse, licenses, allotments, who are also investors in one form or the other in the business of respondent No.52 were impleaded and put on notice and most of them responded through counter affidavits, primarily, opposing the maintainability of this Taken-up writ petition. Some of them have endeavoured to justify the investments in the companies of respondent No.52 as commercial business decisions and have denied the receipt of any benefit from the Government of Andhra Pradesh or from anybody else. Respondent No.52 had earlier filed a counter affidavit only to the extent of maintainability without touching upon the merits of the allegations and had denied any violation of the Reserve Bank of India Act, FEMA or the Prevention of Money Laundering Act, 2002, contending further that the Enforcement Directorate is seized of enquiries with reference to the alleged violation and, as such, seeking investigation by CBI is only to unleash a political battle and to gain political advantage. 7. The learned Senior Counsel appearing for the respondents and the learned Amicus Curiae were heard on 12.07.2011 on the question of maintainability of the Writ Petitions. Among other things, there being involvement of substantial public interest, preliminary objection could not prevail on us and petitions were held to be maintainable, accordingly admitted to hearing by a detailed order. 8. When these matters were taken up for hearing, learned Amicus Curiae, appearing in Taken-up Writ Petition No.794 of 2011, submitted that the modus operandi adopted by the then Chief Minister for receiving illegal gratification for exchange of official favours is evident from the phenomenal growth of companies owned and managed by respondent No.52. He submitted that though these investments made by the beneficiaries are being tried to be explained on the ground that they are business deals and pure commercial decisions to invest, learned Amicus pointed out that such explanation is unacceptable on the face of it, as no prudent person would invest crores of rupees in a company, which has neither any achievements nor any possibility of returns. He relied upon a decision of the Supreme Court in VISHWANATH CHATURVEDI v. UNION OF INDIA[1], particularly, paragraphs 15 to 20 thereof to contend that it was a case where huge amassing of wealth by the then Chief Minister of Uttar Pradesh was sought to be justified by showing the registered documents executed in his favour as well as that of his family members but by apparent consideration mentioned in the said documents, the wealth amassed was shown to be disproportionate and unexplained, therefore, the Supreme Court directed a preliminary report to be furnished by the CBI and the present case being of a similar nature where gratification received is by a different modus operandi, investigation by CBI is essential. 9. A note given by Amicus Curiae in this Taken-up writ petition gives illustrative examples as under: (a) M/s. Gilchrist Investments Pvt. Ltd., Alpha Villas Pvt. Ltd., and Alpha Avenues Pvt. Ltd., all promoted by Sri N. Prasad, are stated to have been allotted shares, face value of which, is Rs.10/-, for a premium amount of Rs.350/- each, in return for an official favour of allotment of Government land, to VANPIC PORTS PVT. LTD. and VANPIC PROJECTS PVT. LTD., on build, operate and transfer basis. (b) M/s. Eres Projects Pvt. Ltd., promoted by RAMKY Group is stated to have been allotted 2,22,222 shares, face value of which, is Rs.10/-, for a premium of Rs.340/- each, in return for an official favour of allotment of land pertaining to Housing Board at Gachibowli and SEZ land at Visakhapatnam. (c) M/s. P.V.P. Business Ventures Pvt. Ltd., is said to have been allotted 1,38,888 shares, face value of which, is Rs.10/-, for a premium of Rs.340/- each, in return for an official favour of allotment of Government land in an extent of Ac.598 at Nadargul Village, Ranga Reddy District. (d) M/s. Pioneer Infrastructure Holding Ltd., promoted by Sri Pratap Reddy of PENNA Group, is stated to have been allotted 5,55,555 shares, face value of which, is Rs.10/-, for a premium of Rs.340/- each, in return for an official favour of relaxation of Building Regulations for construction of a Star Hotel on Road No.2, Banjara Hills. (e) M/s. Trident Life Sciences Pvt. Ltd., which belongs to the HETERO Group, is stated to have been allotted 13,889 shares, face value of which, is Rs.10/-, for a premium of Rs.340/- each, in return for an official favour of allotment of land in an extent of Ac.240 at Nakkapalli and Jadcherla Villages, Mahabubnager District, for establishment of SEZ. 10. Learned Amicus Curiae submitted that these investments are prima facie directly linked to the benefits received by the individuals/companies in the area of interest of their business through the official favours from the then Chief Minister. In other words, valuable State largesse was bestowed on investors, who had, in turn, invested huge amounts in various businesses of respondent No.52. Each individual case, therefore, needs to be examined to establish the modus operandi as to the manner in which and proximity within which the benefits are received from official favours on the one hand and the investments of kickbacks in companies of respondent No.52 on the other hand. We find from the record as well as from the additional particulars given by the petitioner in his letters that even Mauritius-based companies have invested Rs.125 Crores in Sandur Power Company Limited owned and managed by respondent No.52. The said investment was made in the year 2005, the very first year of operation of the company and at a premium of Rs.61/- per share and in spite of such huge investments, instead of appointment of it’s nominee on the board of the said company, the personal auditor of late Chief Minister’s businesses is said to be appointed as a nominee of the said foreign investors. 11. Mr. K.T.S. Tulsi, learned Senior Counsel appearing for respondent No.52 has, however, strongly refuted the said contentions and submitted that the author of the letter, which is registered as a Taken-up writ petition, is a known political adversary of the father of respondent No.52 – the then Chief Minister and submits that the present proceedings are mala fide and are initiated for political gain. He has placed reliance upon a decision of the Supreme Court in KUNGA NIMA LEPCHA AND ORS. v. STATE OF SIKKIM[2] and relies upon paragraphs 10 and 11 to submit that judicial intervention in such case for setting criminal law in motion was disallowed by the Supreme Court in the aforesaid latest judgment. 12. We find that the aforesaid decision was rendered in a writ petition filed before the Hon’ble Supreme Court under Article 32 of the Constitution of India but the petitioner had failed to establish and demonstrate violation of any of his fundamental rights to seek relief under Article 32. Further, the Supreme Court held that if it gives direction for prosecution it would cause serious prejudice to the accused. In that view, the prayer for directing prosecution through CBI was denied. 13. Learned Senior Counsel also submitted that the fact that the State has not launched any prosecution indicates that either it is not accepting the allegations against respondent No.52 or apprehends involvement of several members of the then Chief Minister’s Cabinet. He referred to STATE OF UTTARANCHAL v. BALWANT SINGH CHAUFAL[3] and placed reliance upon paragraphs 18, 163 and 164 and particularly, drew our attention to the ratio of GURPAL SINGH V. STATE OF PUNJAB [(2005) 5 SCC 136]. 14. We, however, feel that the decision in GURPAL SINGH’s case dealt with locus standi of the petitioner in raising a dispute relating to service of an employee and sustainability of public interest litigation in a service matter. Para 163 relied upon refers to the decisions of the Supreme Court in BALCO EMPLOYEES UNION (REGD.) V. UNION OF INDIA [AIR 2002 SC 350] as well as S.P. GUPTA v. UNION OF INDIA [AIR 1982 SC 149] and particularly, the observations of the Supreme Court with respect to the public interest litigation, as mentioned, in the said decisions. 15. In fact, the decision in STATE OF UTTARANCHAL’s case (3 supra) is the latest decision of the Supreme Court with respect to Public Interest Litigation jurisdiction and the manner and situations in which Public Interest Litigation can be entertained by the Courts. In our order dated 12.07.2011, we have already recorded that the present case would fall under phase III dealing with transparency and probity in governance as per ratio in UTTARANCHAL’s case (3 supra) and the decisions relied upon by the learned Senior Counsel were all referred to by the Supreme Court in the UTTARANCHAL’s case. 16. Similarly, reliance placed by the learned Senior Counsel upon the decision of the Supreme Court in STATE OF WEST BENGAL v. COMMITTEE FOR PROTECTION OF DEMOCRATIC RIGHTS[4] was also noticed and followed by us in our order dated 12.07.2011. We, however, find difficulty in accepting the contention of the learned Senior Counsel that Article 21 of the Constitution of India and the word ‘life’ used therein would still be available to protect the dignity of the then Chief Minister, who is no more. There cannot be two opinions that the dignity of a dead person has to be respected, but that is far from saying that the word ‘life’ used under Article 21 would include protection under Article 21 post-death also. The further decisions in BANDHUA MUKTI MORCHA v. UNION OF INDIA[5] and SMT. NILABATI BEHERA ALIEAS LALITA BEHERA v. STATE OF ORISSA[6], relied upon were also referred to in the Constitution Bench judgment in STATE OF WEST BENGAL’s case (4 supra). 17. It is, however, to be noted that as held in BANDHUA MUKTI MORCHA’s case (5 supra), even if conditions for issuance of any writ are not fulfilled, the Constitutional Court would not be constrained to fold its hand in despair and plead its inability to help the citizens, who come before it for judicial redressal. 18. Learned Senior Counsel also submitted that the assessment of assets of respondent No.52, which are highlighted for invoking jurisdiction of this Court are contrary to and in ignorance of the income tax returns of respondent No.52 but no care has been taken to verify the same. He also places reliance on a Commission of Enquiries report relevant in the matter rendered by one of the retired Hon’ble Judges of this Court. He, therefore, submits that the assets, acquisition as well as the valuation of the businesses of respondent No.52, particularly, Bharathi Cements and Jagathi Publications, are mischievously exaggerated contrary to the factual realities and a deliberate distorted picture is presented before this Court. 19. Learned Senior Counsel submits that the figures of assets of respondent No.52 for the year 2003-2004 and the latest figures, which are given in the letter shows very high growth of income and takes serious objection to the figures in the letter of the petitioner on the ground that these figures are irresponsibly given without verifying the returns filed by respondent No.52. He submits that when the allegation of phenomenal increase in the assets is made by the petitioner, who has written the letter, it has to be presumed that he is in knowledge of the figures reflected in the returns of respondent No.52. He, therefore, submits that in reality the returns of respondent No.52 for the year 2003-2004 show total assets to the tune of Rs.20.67 Crores and not Rs.11.02 lakhs, as alleged. He also submits that the book assets as per the year 2003-2004 have increased in the recent years only on account of disinvestments of shares by respondent No.52 in M/s. Bharathi Cements and thereby, the fixed assets of respondent No.52 by the time his father became the Chief Minister were Rs.19.43 Crores with liabilities to the extent of Rs.18.93 Crores and as such individual net worth was Rs.1.73 Crores. For the subsequent year also, he submits that on account of lesser investments net worth of respondent No.52 rose to Rs.8.77 Crores, and for the year 2005-2006 it came down to Rs.7.7 Crores. These figures are relied upon to show that before or after the father of the respondent No.52 became the Chief Minister there was no phenomenal increase in net worth and the increase in net worth in March 2011, was about Rs.372 Crores on account of capital gain out of disinvestments in M/s. Bharathi Cements. Learned counsel, therefore, submits that there is absolutely no basis for the allegation that the assets of respondent No.52 rose to Rs.43,000 Crores as stated in the letter. 20. Learned Senior Counsel also explained the other investments in the other group companies of respondent No.52 and has also explained that the allegation of any favour in grant of mining lease etc. with reference to M/s. Raghu Ram Cements, as alleged was already investigated by the Commission of Enquiry by a retired Hon’ble Judge of this Court and no irregularities were found. Learned Senior Counsel also made criticism of the note submitted by the learned Amicus Curiae on the ground that various aspects, as mentioned in the counter affidavit of respondent No.52, have not been taken note of by the learned Amicus Curiae. Learned Senior Counsel also explained the business venture of respondent No.52 viz. M/s. Jagathi Publications in order to explain investments made by various individuals and companies therein and according to the learned Senior Counsel, on account of achievements in reaching position of No.2 in the State in the regional print media and superior quality of publication, the investments were made by various companies and individuals purely as a prudent business decision. 21. Learned Senior Counsel also submitted that respondent No.52 became a public servant only in May, 2009 and prior to that the Prevention of Corruption Act cannot be applied to him. Learned counsel also tried to distinguish VISHWANATH CHATURVEDI’s case (1 supra) from the present case on hand by contending that the respondents/politicians in the said case were only politicians, whereas respondent No.52 is basically a businessman. Several paragraphs of the counter affidavit of respondent No.52 are read out where he has explained the investments with respect to M/s. Jagathi Publications and M/s. Bharathi Cements and also with regard to the benefits conferred on the individuals by the State, but the learned Senior Counsel pleads that he is not aware of the same. 22. So far as other contentions of the learned Senior Counsel explaining investments and businesses of respondent No.52 are concerned, though we had allowed the learned Senior Counsel to make submissions in detail, we are of the view that it would not be appropriate within the scope of the present writ petition to examine each and every allegation and to probe into the correctness, validity or genuineness of every investment and every business venture and to compare and verify as to whether the same is linked with any corresponding Quid Pro Quo benefit received by such investor from the State of Andhra Pradesh. We also feel that such investigation into every such investment could be impossible without reference to records, accounts, corresponding entries in the official records etc., and that would convert the scope of this writ petition into an investigative enquiry, which is not permissible. 23. Mr. L. Nageswara Rao, learned Senior Counsel appearing for respondent Nos.20 to 25, made primary submissions on behalf of one of the investors – Mr. N. Prasad to clarify that investment in VANPIC Projects attributed to Mr. N. Prasad is a pure investment from business point of view and the said project between the Government of India and a Saudi Arabean country is even now an on-going project and the VANPIC is only a partner therein. He also placed reliance upon STATE OF KARNATAKA v. ARUN KUMAR AGARWAL[7] and contended that the allegations in the present case are not even closer to those facts. 24. Mr. C. Kodanda Ram, learned Senior Counsel appearing for respondent No.8 and Mr. K. Srinivas Reddy, learned counsel appearing for respondent No.32, besides adopting the arguments of Mr. L. Nageswara Rao, submitted that there are no direct allegations against these respondents. Respondent No.32, it is claimed, is a subsidiary French company and as such, unnecessarily roped into the present controversy. 25. Mr. S. Sriram, learned counsel appearing for respondent Nos.12 and 37, submitted that respondent No.12 has not invested any amount in any of the companies of respondent No.52 and no grant or favour was ever made in favour of respondent No. 37 by the State of Andhra Pradesh. 26. Mr. Vedula Venkatarama, learned Senior Counsel appearing for respondent No.42, submits that the said respondent is an investor in M/s. Jagathi Publications and the allegations in this writ petition are made, as if the said investor is a group company of RAMKY group, who have been allotted land in Gachibowli. Learned Senior Counsel relies upon paras 14 to 16 of his counter to submit that respondent No.42 is not a part of RAMKY group at all and has not received any benefit from the State of Andhra Pradesh. Similar contention is adopted by Mr. S. Ravi, learned Senior Counsel, appearing for respondent No.9. 27. Mr. C. Nageswara Rao, learned counsel appearing for respondents 26, 33, 34 and 36, submitted that the said respondents are investors in the group companies of respondent No.52, but no benefits are granted by the State of Andhra Pradesh. Similar arguments are made on behalf of the learned counsel appearing for respondent Nos.39, 44 and 46. 28. Mr. S.R. Ashok, learned Senior Counsel appearing for respondent Nos.15 to 19, submits that merely on the basis of allegation of occupying Government land and having invested in the group companies of respondent No.52, these respondents are roped in, though as per para 8 of their counter, they are not occupying any land. 29. Learned counsel for respondent No.49 also submits that the respondent is only an individual investor and has not received any benefits from the State of Andhra Pradesh. Writ Petition No.6604 of 2011 30. Mr. D. Srinivas, learned counsel for the petitioners, made submissions in support of this writ petition by drawing attention of the Court to para 27 of the affidavit and particularly to the averment that the first petitioner has made a complaint to the Central Bureau of Investigation (CBI) in February, 2009, but no action was taken and thereafter, the first petitioner sent a complaint to the Anti Corruption Bureau (ACB) authorities of the State. The ACB