CRLP4290-12-19-02-2016.Pdf
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19 TH DAY OF FEBRUARY 2016
BEFORE
THE HON’BLE MRS.JUSTICE RATHNAKALA
CRIMINAL PETITION NO.4290/2012
BETWEEN:
1. M.R.RAMESH S/O MR.RAMANNA AGED ABOUT 66 YEARS RESIDING AT 456, RAMESH NJRSERY, BANNERGHATTA ROAD 4TH KOTHANUR CROSS AREKERE VILLAGE, IIM POST BANGALORE – 560 076.
2. M.R.SATISH S/O M.R.RAMESH AGED ABOUT 40 YEARS RESIDING AT 456, RAMESH NJRSERY, BANNERGHATTA ROAD 4TH KOTHANUR CROSS AREKERE VILLAGE, IIM POST BANGALORE – 560 076.
3. M.R.RAVI S/O M.R.RAMESH AGED ABOUT 38 YEARS RESIDING AT 456, RAMESH NJRSERY, BANNERGHATTA ROAD 4TH KOTHANUR CROSS AREKERE VILLAGE, IIM POST BANGALORE – 560 076. …PETITIONERS
(BY SRI UDAYA HOLLA, SR. ADV. FOR SRI VIJAY KUMAR DESAI, ADV. FOR J.SAGAR ASSOCIATES, ADVS.) - 2 -
AND:
1. SRI C.LAKSHMINARAYANA S/O LATE CHOWDAPPA AGED ABOUT 45 YEARS R/O-219, CHOWDESHWARI NILAYA HULIMAVU VILLAGE BANNERGHATTA ROAD BANGALORE – 560 076.
2. SRI P.BHUPESH REDDY SON OF JAYARAMA REDDY AGED ABOUT 40 YEARS DIRECTOR M/S J.R.ENTERPRISES FLAT NO.1, SJR PRIMES 7TH AND 8 TH FLOOR INDUSTRIAL AREA 7TH BLOCK KORAMANGALA BANGALORE – 560 095.
3. SRI J.VIJAY REDDY SON OF JAYARAMA REDDY AGED ABOUT 38 YEARS DIRECTOR M/S J.R.ENTERPRISES FLAT NO.1, SJR PRIMES 7TH AND 8 TH FLOOR INDUSTRIAL AREA 7TH BLOCK KORAMANGALA BANGALORE – 560 095.
4. SRI G.S.NAYAK AGED ABOUT 50 YEARS SPECIAL DEPUTY COMMISSIONER BANGALORE URBAN DISTRICT BANGALORE.
5. SRI SIDDAIAH AGED ABOUT 59 YEARS PRINCIPAL SECRETARY HIGHER EDUCATION M.S.BUILDING BANGALORE - 3 -
6. SRI BHARATH LAL MEENA AGED ABOUT 55 YEARS COMMISSIONER BANGALORE DEVELOPMENT AUTHORITY T.CHOWDAIAH ROAD BANGALORE
7. SRI SUBHIR HARI SINGH AGED MAJOR THE THEN CHAIRMAN BANGALORE DEVELOPMENT AUTHORITY T.CHOWDAIAH ROAD BANGALORE.
8. SRI THIRAKANAGOWDA AGED ABOUT 54 YEARS TOWN PLANNING MEMBER BANGALORE DEVELOPMENT AUTHORITY T.CHOWDAIAH ROAD BANGALORE.
9. SRI M.V.VEERABHADRAIAH AGED ABOUT 58 YEARS THE THEN DEPUTY COMMISSIONER (LAND ACQUISITION) BDA T.CHOWDAIAH ROAD BANGALORE.
10. SRI M.V.VEERABHADRAIAH AGED ABOUT 58 YEARS THE THEN DEPUTY COMMISSIONER (LAND ACQUISITION) BDA T.CHOWDAIAH ROAD BANGALORE.
11. SRI SOSALE INDUDAR AGED MAJOR LAW OFFICER, BDA RESIDING AT NO.8, 1 ST FLOOR 15 TH CROSS, J.P.NAGAR, 5TH PHASE, BANGALORE
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12. SRI YASHODARA AGED MAJOR THE THEN SENIOR SUB REGISTRAR BOMMANAHALLI PRESENTLY WORKING AS INCHARGE DRO RURAL, RAJAJINAGAR BANGALORE.
13. SRI RAMEGOWDA THE THEN SPECIAL DC BANGALORE DISTRICT PRESENTLY PERSONAL SECRETARY TO HOME MINISTER GOVERNMENT OF KARNATAKA VIDHANA SOUDHA BANGALORE – 1
14. THE STATE BY LOKAYUKTA POLICE M.S.BUILDING, DR.B.R.AMBEDKAR ROAD BANGALORE – 560 001. ...RESPONDENTS
(BY SRI M.R.VIJAY KUMAR, ADV. FOR R1; SRI NAVAKESH BATRA FOR SRI JANEKERE C.KRISHNA, ADV. FOR R2 & R3; SRI R.NAGENDRA NAIK, ADV. FOR R4; R5 – SERVED AND U REPRESENTED; SMT.KUSUMA R.PRASAD FOR SRI L.M.CHIDANANDAYYA, ADV. FOR R6, R7, R8 AND R13; SRI SACHIN V.R., ADV. FOR R9; SRI V.Y.KUMAR, ADV. FOR R10; R11 – SERVED AND UNREPRESENTED; SRI M.S.BHAGWAT, ADV. FOR R12; SRI VENKATESH P.DALWAI, SPL.PP FOR R14)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF CR.P.C., PRAYING TO QUASH THE COMPLAINT AND ENTIRE PROCEEDINGS IN THE PCR NO.8/2012 AND CONSEQUENTLY QUASH THE F.I.R. IN CR.NO.18/2012 FILED BY THE RESPONDENT NO.1 IN PCR NO.8/2012 ON THE FILE OF THE XXIII ADDITIONAL CITY CIVIL AND SPECIAL JUDGE, PREVENTION OF CORRUPTION ACT, BANGALORE URBAN DISTRICT, BANGALORE. - 5 -
THIS CRIMINAL PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 04/02/2016 AND COMING ON FOR PRONOUNCEMENT OF ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:-
O R D E R
The petitioners are aggrieved by the registration of
FIR against them in Crime No.18/2012 in respect of the offence punishable under Sections 120B, 468 and 471 of
IPC and Sections 13(1)(d), 13(2) of Prevention of
Corruption Act, 1988 (for short, ‘the Act’), in pursuance of the order of reference passed by the Special Court on the private complaint of Respondent No.1.
2. The essence of the complaint allegation is, the lands in Sy.No.100/P1, 101/1 and 103 of Arekere
Village, Begur Hobli, Bangalore South Taluk, were acquired for the purpose of formation of 9 th Phase,
J.P.Nagar, Bangalore, vide Gazette Notification dated
22.7.1991. Accused Nos.11 to 13 claiming to be the previous owners of the said land, entered into Joint
Development Agreement with 1 st accused/Company. - 6 -
Accused Nos.2 and 3 are the Directors of accused No.1.
The first accused sought for de-notification of the land on the pretext of maintaining Nursery and greenery and the land was de-notified subject to condition that he maintains the land as Nursery only; with liberty to the
Bangalore Development Authority to acquire the land for its scheme in the event of violation of condition. Accused
Nos.4 to 11 and 14 being the public servants joined hand with accused No.1 and changed the nature of the land, though it was not permissible to get the land converted for non-agricultural purpose. 20 guntas of land was converted for extraneous reason ignoring the legal formalities. Layout plan was approved. There is indiscriminate sanction and approval to allow
Apartments to come up. The co-accused, who were the public servants, working as the Special Deputy
Commissioner, the then Commissioner, the then
Chairman, the then Town Planning Member, the then
Deputy Commissioner (Land Acquisition) of Bangalore - 7 -
Development Authority, have played decisive roles to get the land approved by suppressing the facts. Though relevant and true facts were brought to the notice of the concerned authorities, no action is taken.
3. Sri. Uday Holla, learned Senior Advocate, on behalf of Sri.Vijay Kumar Desai, learned counsel for petitioners submits that the petitioner Nos.2 and
3/accused Nos.13 and 14 are the sons of petitioner
No.1/accused No.12. They have remarkable standing in the world of business, community service and philanthropy. They are the owners of converted land measuring 7 acres 29 guntas, in Sy. No.100/P1, 101/1 and 103 of Arekere Village, Begur Hobli, Bangalore South
Taluk, having purchased the same for valuable consideration under the registered sale deed dated
31.12.1980 and 06.06.1983. Out of the said land, 7 acres 3 guntas was acquired under Notification, dated
22.07.1991 under Section 6 of the Land Acquisition Act, - 8 -
1894 for BDA’s 9 th Stage, J.P. Nagar Scheme. No further proceedings were taken and possession of the lands was never disturbed. Instead, in exercise of power under
Section 48(1) of the Land Acquisition Act, 1894, the entire extent of 7 acres 3 guntas acquired was withdrawn from the acquisition with a condition that it shall be maintained as a Nursery which the petitioners were doing since 1980. In the event of violation of condition to maintain a Nursery, liberty was reserved to the BDA to acquire the land for its 9 th Stage, J.P. Nagar Scheme. A
Notification, dated 26.08.1996, was issued for withdrawing the acquired 7 acres 3 guntas from acquisition. Accordingly, for a period of 10 years, the petitioners continued to maintain a Nursery till 2006.
The said lands were classified as residential in the CDP
1995 and also in the latest Master Plan-CDP/RMP 2015.
There was incongruity between the classification in the
CDP/RMP 2015 and in the condition imposed by the
Government to maintain a Nursery. The BDA vide its - 9 -
letter, dated 26.02.1996, recommended to the
Government to classify the said land as Park Zone in conformity with the condition. The Government did not accede to the request/recommendation made by the BDA since it was residential area as per new CDP i.e. RMP
2015. In that view of matter, the petitioners had to use the land in question for residential purpose. The BDA de-notified several lands in Arekere Village unconditionally and imposing a condition on the petitioners’ land alone was illegal. Vide the BDA’s
Planning Committee Report, dated 28.01.1999, it was recommended that lands in Arekere Village were dropped from the BDA’s 9 th Stage, J.P.Nagar Scheme, since it was fully developed area. The petitioners applied for conversion under the Karnataka Land Revenue Act, to the extent of 7 acres 13 guntas from agricultural to non- agricultural purpose to fall in line with CDP/RMP 2015.
The BDA allowed the application and granted its NOCs, dated 17.10.2006 and 14.01.2008, for conversion. The - 10 -
Special Deputy Commissioner issued conversion order in respect of said land. The BDA has issued its sanction to the Development Plan, dated 17.03.2007 in respect of said land. However, the works order was withheld and kept in pending the production of conversion order in respect of 16 guntas. The petitioners decided to jointly develop the land only to the extent of 7 acres 1.67 guntas along with developer M/s. SJR Builders. Conversion order for 16 guntas was obtained on 05.02.2008 and the
BDA issued its Modified Development Plan on
28.03.2008 and Works Order dated 06.03.2008 for lesser extent of 7 acres 1.67 guntas. The BBMP issued its
Building License and Commencement Certificate on
04.11.2009. Now the lands are jointly developed in accordance with law and the Modified Development Plan, dated 28.03.2008. Though BDA had power to acquire the land in question, in the event of land not being used for nursery, abandoned its right and decided not to acquire the lands. Area of 7 acres 29 guntas is not - 11 -
feasible to develop a layout. Apartments are constructed over the land. One G. Harish with ulterior motive filed false and frivolous complaint against BDA. Respondent
No.1 and G. Harish alleged that the land vests with the
BDA since they have not maintained nursery after 2006.
Respondent No.1-C.Lakshminarayana is an Ex-Councilor from the locality. The BDA after inviting its owner from the Legal Officer, has held with the direction of the petitioners in accordance with law. Aggrieved by the same, Respondent No.1 and G. Harish have filed false complaint. Learned Special Judge without application of mind as to whether any offence is made out under the provisions of law has mechanically referred the matter for investigation. In pursuance of the order directing the investigation, the BDA has passed resolution directing that the Works order is kept in abeyance. The petitioners challenged the said order in WP Nos.25066 to
25068/2012. Respondent No.1 is known for filing false and frivolous complaint. Hence, the order of reference - 12 -
and registration of complaint is bad in law and liable to be quashed in exercise of jurisdiction under Section 482 of Cr.P.C.
4. Sri.Venkatesh P. Dalwai, learned Special
Public Prosecutor for respondent No.14/Lokayukta submits that by the time interim stay order was granted in this case thereby staying further proceedings, on
31.7.2012 investigation was completed and charge sheet was filed to the Court and learned Special Judge had taken cognizance of the offence. However, in view of the interim order operating, the trial is stalled. The petition has become infructuous in view of filing of the charge sheet, hence, the FIR cannot be quashed in exercise of jurisdiction under Section 482 of Cr.P.C.
5. Before taking off for appreciation of the material on record, it is worth mentioning at this juncture itself that 14 th accused of P.C.R.No.8/2012/Ramegowda - 13 -
challenged his implication in the case by way of Section
482 of Cr.P.C.; said petition was disposed of by him in
Criminal Petition No.4897/2013 D.D. 28.12.2015; now the private complaint and charge sheet so far 14 th accused Ramegowda/Special Deputy Commissioner, who had accorded permission for conversion of the land for residential purpose, stand quashed. Having regard to the role attributed to the said Special Deputy
Commissioner by the prosecution and for want of sanction from the Government to prosecute him, the PCR and the charge sheet as far as 14 th accused is concerned, is quashed. What all observation was made during the course of discussion in the said order, need not have any bearing for adjudication of the present petition because the petitioners herein are private parties and the role attributed to them is distinct from that of public servants/co-accused. It was the submission of learned
Senior counsel for the petitioners, filing of the present petition before this Court and filing of the charge sheet - 14 -
before the Special Court were on the same day, which according to him, is not a mere coincidence. Even if that is so, now no enquiry can be made at this length of time to probe, which was the earlier in point of time whether the petition under Section 482 of Cr.P.C.? or the charge sheet? There is no practice in the Trial Court to record the time of presentation of charge sheet in the office, though in respect of the FIR, the Magistrate endorses time and date of the receipt.
6. Of course, the allegation against these petitioners was not specific while attributing against all the accused persons of fabrication of documents, creation of documents, using them as genuine, etc., but, the prosecution on conclusion of the investigation has arrayed these petitioners as accused Nos.3, 4 and 5 and has made out definite case against them. Now the case of the prosecution is, the first accused being the
Managing Director of M/s. S.J.R.Enterprises along with - 15 -
the second accused/another Director of the said
Company entered into joint development agreement with the petitioners/accused Nos.3 to 5 in respect of the property/subject matter of the whole lis. With an intention to get the development plan from the B.D.A., the accused Nos.1 to 6 conspired together, created a supplementary agreement as if 16 guntas of land in
Sy.No.103 of Arekere Village was registered in the Sub-
Registrar’s office at Bommanahalli on 24.9.2007 vide document No.685/2007-08; they produced fake documents as genuine before the BDA officials; they have avoided the stamp duty for registration to a tune of
Rs.11,000/-. That apart, they have built apartment and made profit thereby accused Nos.1 and 2 committed offence under Sections 468, 471, 420 and 120B of IPC.
The first petitioner/accused No.3 in the charge sheet had made representation to the Government that he is maintaining a nursery in the land in question and requested the Government to de-notify the land. He had - 16 -
executed a declaration to the BDA undertaking to continue the nursery in the said land. On that undertaking, the Government de-notified the land with a condition to continue to maintain the nursery. But he suppressed the condition imposed at the time of de- notification, gave representation to the Tahsildar on
22.11.2005 and conspired with the officials/accused
Nos.9 to 12 and through them, gave a report to the De- notification Committee that the land is not acquired and thereby got the land converted for non-agricultural purpose. He obtained the plan approved from the
Planning Section of BDA with the connivance of the officials/Land Acquisition Officers/accused Nos.7, 8, 10 and 11. The accused Nos.3 to 5 by entering into joint development agreement and by executing GPA with accused Nos.1 and 2, presented the documents created by accused Nos.1 and 2 to the BDA officials for sanction on 3.11.2007 and got the sanction thereby the third accused has committed an offence under Sections 471, - 17 -
420, 120B of IPC; accused Nos.4 and 5 committed an offence under Sections 420 and 120B of IPC.
7. As observed earlier, at this length of time, there is no foolproof material available to hold that the charge sheet is earlier in point of time to the interim stay ordered by this Court on 31.07.2012. The charge sheet filed by the Investigating Officer cannot be ignored. In that view of the matter, the contention raised about the illegality in the order of reference passed under Section
156(3) of Cr.P.C. for want of application of mind by the
Special Judge, to the complaint allegation and the previous enmity between G.Harish and the petitioners, etc., take a back seat. Whether from the materials collected against these petitioners, the offence under the
Indian Penal Code as cited in the charge sheet under
Sections 471, 400, 120B of IPC is made out or not is for the Special Judge to frame appropriate charges after giving audience to both parties. It is also upto the - 18 -
petitioners to urge before the Special Judge for discharge if they are to contend that there is no incriminating material against them to proceed with the prosecution.
For the discussion supra, I hold that there is no circumstance to exercise the jurisdiction under Section
482 of Cr.P.C. to quash the proceedings.
Hence, the petition is rejected.
All the contentions are kept open.
Sd/- JUDGE
JTR/KNM/-