1 mss IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION PIL NO. 8 OF 2009 1. K. B. @ ANNA HAJARE ) residing at Ralegan Siddhi, ) Taluka Parner,Dist. Ahmednagar Pradeep Chandrakant Indulkar ) residing at 29, Kaushik ) Shreenagar Thane 400604 ) 2. Nitin Shankar Deshpande ) Residing at I/C, 108, Adarsh ) Nagar, Kolbad, Thane 400601 ) 3. Shreerang Balwant Khambete ) r/o Parikrama Sumokh Co-op. ) Hsg. Soc. Manda,Titwala,Taluka Kalyan, Dist. Thane. ) .. Petitioners Vs. 1. THE STATE OF MAHARASHTRA 2 through Secretary ) Urban Development Department 2. The Commissioner, ) Thane Municipal Corporation ) 3. The Mayor ) Thane Municipal Corporation ) Both having their office at ) Mahapalika Bhavan, Dr. Alemda Road, Pachpakhadi, ) Chandanwadi Road, Thane (W)) 4. The Commissioner of Police ) Thane City, through APP ) having his office at PP Office ) PWD Bldg., High Court,Mumbai 5. Shri Sudhakar Chavan & 35 Ors. .. Respondents Mr. A. A. Kumbhakoni i/b Mr. S. S. Deshmukh for petitioners Mr. P. A. Pol, PP for State Mr. R. S. Apte i/b N. R. Bubna for R-2 Mr. Harshad Bhadbhade R-5 Mr. P. M. Pradhan for R-11 3 Mr. Rajesh Datar for R-34. CORAM: SMT. RANJANA DESAI & SMT. V. K. TAHILRAMANI, JJ. DATED: 5th May, 2010. P.C. The 1st petitioner is Anna Hajare. He is a social worker. He is engaged in social development work of teaching and training the people. Petitioners 2 to 4 also claim to be social workers. Respondent 1 is the State of Maharashtra through Urban Development Department. Respondents 2 and 3 are the Commissioner and Mayor of Thane Municipal Corporation respectively. Respondent 4 is the Commissioner of Police of Thane city. Respondents 5 to 35 are the persons who are held guilty in the investigation carried out by the police authorities and by the Nandalal Committee constituted by the 1st respondent. 2. Nandalal Committee was formed by the 1st respondent by its order dated 3/12/96 to investigate into illegalities and irregularities committed in the Thane Municipal Corporation. Thereafter by passing revised order on 28/1/97 the Secretary, Urban Development Department was appointed the Chairman and the Committee was reconstituted. 4 3. Nandalal Committee investigated into the large scale illegalities and irregularities found in the working of the Thane Municipal Corporation and came to a conclusion that large number of officers and councilors were involved in the said illegalities and irregularities. The Committee found that the said officers employed corrupt and illegal means thereby causing great financial loss to the Corporation and they misused their position and powers for their own benefits contrary to law. 4. From the affidavit dated 21/11/09 filed by Kiran V. Kurundkar, Deputy Secretary Urban Development Department, Mantralaya, Mumbai, it appears that the Nandalal Committee submitted its report to the Government on 29/12/97 with certain recommendations. In the meantime Writ Petition No. 5783 of 1999 was filed in this court by Nandlal Maurya praying that copy of the Nandalal Committee Report be placed before this court and action be initiated against the officers and councilors who are prima facie held guilty by the Nandalal Committee in accordance with law. That writ petition was disposed of by this court by its order dated 5/7/00 on the ground that FIRs had already been lodged against non-official members of the Corporation and if any material further comes to light in that respect the Corporation may take appropriate action. 5 5. Again in the year 2003 Criminal Writ Petition No. 1354 of 2003 was filed by a sitting Councilor of Thane Municipal Corporation. It was prayed in that petition that a direction be given to the respondents to register offences against all the councilors, officers, employees, who have been indicted in the Nandalal Committee Report and charge-sheet be filed in appropriate court within time bound schedule. It appears that during the course of hearing the then Deputy Commissioner of Police of Thane Shri Amar Jadhav made a statement on affidavit that on 4/7/2000 nine cases have been registered with Navpada Police Station against erring councilors and officers. The writ petition was thus disposed of by recording the statement of the Additional Public Prosecutor of the State to the effect that investigation in five cases was almost complete and charge-sheets will be filed in near future. A further statement was made that so far as other cases are concerned, investigation will be completed within four months and charge-sheets will be filed in due course. 6. According to the petitioners out of 9 matters in 5 matters First Information Reports were lodged and the police came to the conclusion that either no case was made out or no further investigation is required and the police prayed for A or B summary 6 before the trial court. However, in CR Nos. 224/2000, 230/2000, 231/2000 and 232/2000 the police found satisfactory material and the said matters were sent to the State Government for obtaining sanction under Section 197 of the Code of Criminal Procedure (the Code). 7. The grievance of the petitioners is that in all these matters though grave charges were levelled against the erring officers, they were not arrested. According to the petitioners when the matter was placed before the State Government for approval under Section 197 of the Code the Minister of State for Urban Development gave them hearing and sent the matter to the Thane Municipal Corporation to take appropriate decision as per the instructions of the police. 8. On 30/11/07 the Corporation passed Resolution No. 282 and unanimously rejected the proposal for initiating action against the guilty councilors and officers. The petitioners’ grievance is that the approach of the State Government as well as the Thane Municipal Corporation is to favour the guilty officers and councilors. The petitioners have, therefore, prayed inter alia that the Resolution No. 282 dated 30/11/07 of Thane Municipal Corporation be set aside and necessary directions be issued to the police to file charge-sheet 7 against respondents 5 to 35 and guilty officers and councilors of Thane Municipal Corporation named in C.R. Nos. 224/00, 230/00, 231/00 and 232/00 within a time bound programme. 9. We have heard Mr. Kumbhakoni, learned Senior Counsel appearing for the petitioners and counsel for the respondents. 10. Affidavit of Shri Kurundkar to which we have made reference hereinabove states that after perusing the reports submitted by the Nandalal Committee and after going through the statements of the councilors taken by the then Minister of State, Urban Development, the Government by letter dated 30/4/07 directed the Commissioner, Thane Municipal Corporation to take appropriate decision regarding framing the charge-sheet against the Councilors who are prima facie found guilty. This direction under Section 197 of the Code was given in respect of FIR Nos. 224 of 2000, 230 of 2000 , 231 of 2000 and 232 of 2000. The Commissioner of Thane Municipal Corporation placed the proposal before the General Body of the Corporation seeking permission to file charge-sheet against the councilors in respect of the said FIRS. The General Body rejected the said proposal vide its Resolution No. 282 dated 30/11/07. The Commissioner Thane Municipal Corporation by letter dated 30/10/03 8 communicated the fact that Thane Municipal Corporation has rejected the proposal to file charge-sheet by passing Resolution No. 282 dated 30/11/07 to the Government. It is further stated in the affidavit by Mr. Kurundkar that after considering the Nandlal Committee’s Report and the fact that out of 12 FIRs filed by the Thane Municipal Corporation the police have found evidence in 4 FIRs, the State Government took a view that in those 4 FIRs, the persons found prima facie guilty should go through the judicial proceedings under the Indian Penal Code and the Prevention of Anti Corruption Act. The Government, therefore, by its Resolution dated 10/11/09 suspended the execution of the Resolution No. 282 dated 30/11/07 under Section 451(1) of the Bombay Provincial Municipal Corporation Act, 1949. As per Section 451(2) of the said Act, Thane Municipal Corporation and the concerned parties were entitled to file their say as regards suspension of the Resolution. In the affidavit it is stated that after considering the say of the Thane Municipal Corporation and say of the concerned parties the Government will take appropriate decision in the matter. 11. Further affidavit is fled by Mr. Kurundkar. The said affidavit is dated 8/4/2010. In that affidavit it is stated that the Thane Municipal Corporation did not file its say as per Section 451(2) of the said Act 9 within 30 days and, therefore, the Government issued Resolution dated 12/3/2010 under section 451(3) of the said Act rescinding the Corporation’s Resolution No. 282 dated 30/11/07 in respect of C.R. No. 230 of 2000 and C.R. No. 231 of 2000. It is further stated that as per Section 448(1) of the said Act, the Government has vide its letter dated 19/3/2010 directed the Commissioner of Thane Municipal Corporation to initiate proceedings against the concerned persons in respect of C.R. No. 230/2000 and C.R. No. 231/2000 and file charge- sheet before the appropriate court. As regards C.R. Nos. 224/2000 and 232/2000 in respect of which the Government has come to a conclusion that it is not necessary to rescind Resolution No.282, following explanation is offered in the affidavit ; “5. I say that in respect of C.R. No. 224/2000, the said Nandalal Committee had pointed out that, the then Chairman of the Standing Committee had unlawfully blocked the resolution passed in the meeting dated 16/07/1997 by not signing the same with a view to stopping its implementation. However, after going through the record of the case,the then Minister of State (Urban Development) opined 10 that there was not enough evidence to prove that the then Chairman of the Standing Committee had stalled the said proposal with any specific motive. Similarly I say that as regards C.R. No. 232/2000, the State Government has carefully considered the observation of the Nandalal Committee in the matter of undue haste in granting sanction to the tender for purchase of Sodium vapour lamps by the Standing Committee. I say that though the Nandalal Committee has alleged that the then Standing Committee has finalized the tenders in great haste, however, the then Minister of State (Urban Development) has opined that, the proposal to purchase Sodium Vapour lamps was approved by the then Standing Committee in accordance with the recommendation of the municipal Administration and that one Shri Ravindran, Dy. 11 City Engineer was primarily held responsible in the matter and was already facing disciplinary action, and hence it was not proper to hold the members of the Standing Committee as being responsible for the same. 6. I say that in the light of the aforesaid findings given by the then Minister for State Urban Development, the Government has decided to rescind the Corporation Resolution No. 282 dated 30/11/2007 and issue directions under Section 448(1) only in respect of C.R. 230/2000 and C.R. 231/2000 and not in C.R. 224/2000 and C.R. 232/2000.” 12. Since Resolution No. 282 is rescinded so far as C.R. Nos. 230/200 and 231/2000 are concerned, the petitioners’ grievance is partly redressed. We are sure that appropriate action will be taken in those cases and the guilty will be punished if the case is proved against them 13. It is true that Government has in its wisdom taken a decision 12 not to rescind resolution qua C.R. Nos. 224/2000 and 232/2000. But the prayer made by the petitioners that this court should direct the police to file charge-sheet against those involved in C.R. Nos. 224/2000 and 232/2000 cannot be granted by this court. 14. In the light of the above judgment, we are of the considered opinion, that it is not the function of this court to direct the State Government to grant sanction. In this connection, we may refer to State of Punjab v. Vinod Kumar, 2001 AIR SCW 2262 where the Punjab and Haryan High Court had while hearing writ petitions in respect of alleged disappearance of three persons inter alia directed that the State Government shall accord necessary sanction as provided under Section 197 of the Code without any delay when asked by the CBI. The Supreme Court recast the said direction as State Government shall consider the question of according sanction as provided under Section 197 of the Code and pass appropriate orders thereon. Needless to say, however, that the State Government is expected to ensure that administration of public bodies is in the hands of clean and non-corrupt officers who observe the path of rectitude. 15. Mr. Pol, learned Public Prosecutor has made a statement that 13 State Government will have a fresh look at C.R. Nos. 224/2000 and 232/2000 and consider the issue of sanction again in accordance with law. Whether to grant sanction or not is entirely within the State’s discretion. We hope and trust that the State Government will adopt the correct approach. We may not be understood to have issued any directions to the State Government to grant sanction. 16. Petition is disposed of. (SMT. RANJANA DESAI, J.) (SMT. V. K. TAHILRAMANI, J.) 14