K.V. Johny v. Deputy Superintendent of Police, VACB Unit, Ernakulam; Director, Vigilance & Anti-Corruption Bureau, Thiruvananthapuram; State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE B.KEMAL PASHA** **MONDAY, THE 20TH DAY OF JUNE 2016/30TH JYAISHTA, 1938** **OP(Crl.).No. 150 of 2016 (Q)** **-----------------------------------------** ## **V.C. NO. 20/2015 OF ERNAKULAM VACB UNIT PENDING BEFORE THE COURT OF ENQUIRY COMMISSIONER AND SPECIAL COURT (VIGILANCE), THRISSUR** **------------------------** ## **PETITIONER(S)/1ST ACCUSED :** **-----------------------------------------------** **K.V.JOHNY, SECRETARY, MUKKANNOOR GRAMA PANCHAYATH, MUKKANNOOR P.O., ERNAKULAM.** **BY SRI.S.SREEKUMAR (SENIOR ADVOCATE) ADVS. SRI.G.BIJU SRI.S.JAYAPRAKASH (MADAVOOR) SRI.V.A.VINOD** ## **RESPONDENT(S)/STATE :** **---------------------------------------** **1. THE DEPUTY SUPERINTENDENT OF POLICE, VACB UNIT, ERNAKULAM 682 001.** **2. THE DIRECTOR, VIGILANCE & ANTI-CORRUPTION BUREAU, THIRUVANANTHAPURAM 695 001.** **3. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM 682 031.** ## **BY PUBLIC PROSECUTOR SMT. HYMA** **THIS OP (CRIMINAL) HAVING BEEN FINALLY HEARD ON 20-06-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Msd. ## **OP(Crl.).No. 150 of 2016 (Q)** ## **-----------------------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS :** **EXHIBIT P1: TRUE COPY OF REPORT SUBMITTED BY THE INSPECTOR OF POLICE, VACB, ERNAKULAM UNIT IN V.C.NO. 20/2015.** - **EXHIBIT P2: TRUE COPY OF F.I.R IN V.C NO. 20/2015 OF ERNAKULAM VACB UNIT.** - **EXHIBIT P3: TRUE COPY OF THE COMMUNICATION GIVEN TO THE PETITIONER TO ATTEND THE MEETING OF THE SINGLE WINDOW CLEARANCE BOARD HELD ON 29/01/2013.** - **EXHIBIT P4: TRUE COPY OF MINUTES OF THE MEETING OF THE SINGLE WINDOW CLEARANCE BOARD /DISTRICT INDUSTRIES DEVELOPMENT COMMITTEE HELD ON 01/02/2013.** - **EXHIBIT P5: TRUE COPY OF LAND RELINQUISHMENT DECLARATION SUBMITTED BY SRI. K.T.JOSE.** - **EXHIBIT P6: TRUE COPY OF DECISION NO.4 OF THE MUKKANNUR PANCHAYATH COMMITTEE MEETING HELD ON 08/03/2013.** - **EXHIBIT P7: TRUE COPY OF LETTER DATED 30/03/2013 OF GENERAL MANAGER, DISTRICT INDUSTRIES CENTRE, ERNAKULAM.** - **EXHIBIT P8: TRUE COPY OF KERALA INDUSTRIAL SINGLE WINDOW CLEARANCE BOARDS AND INDUSTRIAL TOWNSHIP AREA DEVELOPMENT ACT, 1999.** - **EXHIBIT P9: TRUE COPY OF REPORT OF THE PANCHAYATH DEPUTY DIRECTOR.** **EXHIBIT P10: TRUE COPY OF APPRECIATION RECEIVED FOR THE PROJECT.** - **EXHIBIT P11: TRUE COPY OF LETTER DATED 01.03.2016 ISSUED BY INSPECTOR OF POLICE, VACB UNIT, ERNAKULAM ASKING TO PRODUCE THE ORIGINAL DOCUMENTS.** ## **RESPONDENT(S)' EXHIBITS :** **//TRUE COPY//** **P.S.TO JUDGE.** Msd. **NIL** ## **[CR]** ## **B. KEMAL PASHA, J.** ................................................................ O.P.(Crl) No. 150 of 2016 ............................................................... Dated this the 20[th] day of June, 2016 ## **J U D G M E N T** Petitioner is the first accused in Ext.P2 FIR registered by the VACB Ernakulam Unit in V.C.No.20/2015 alleging offences punishable under Sections 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 and Section 120B IPC. 2. The allegation against the petitioner is that he, with intend to make avail undue enrichment to the 2[nd] accused, hatched a criminal conspiracy with the 2[nd] accused, and by misusing his official position, committed criminal misconduct by regularising the construction works O.P.(Crl) 150 of 2016 -: 2 :- of a building and the road leading to the building, constructed by the 2[nd] accused in violation of the provisions of the Building Rules, and without the approval of the District Town Planner. It is alleged that by regularising the said acts, the first accused granted building number to the said building constructed by the 2[nd] accused. 3. The petitioner is none other than the Secretary of Mukkanoor Grama Panchayat. Initially, a building was constructed by the 2[nd] accused in his own landed property for the purpose of making use of it as a multi level parking unit. At the same time, the road leading to that property was constructed through the paddy field belonging to the 2[nd] accused. When he sought regularisation of the constructions and for getting building number for the said building, the same was refused by the Panchayat. Consequently, the matter went up to the Town Planner. The Town Planner also denied permission by pointing out four defects. Two of the defects were cured by the 2[nd] accused. O.P.(Crl) 150 of 2016 -: 3 :- Both the other defects which remained to be cured were with regard to the reclamation of the portions of the paddy field for putting up the pathway to the building. 4. The 2[nd] accused thereafter, approached the Industrial Single Window Clearance Board for getting permission and getting the matter regularised. Therefore, Ext.P3 notice was issued to the petitioner. It seems that the General Manager of the District Industries Board had decided to convene a meeting of the Industrial Single Window Clearance Board at 2 p.m. on 29.01.2013, at the Chambers of the District Collector. Through Ext.P3, the presence of the petitioner was also invited. The first item in the Agenda of Ext.P3 shows that the matter to be considered therein was with regard to the complaint preferred by the 2[nd] accused, which showed that the 2[nd] accused had obtained permission from the Pollution Control Board and fire and rescue authorities for the installation of the multi level car parking unit in the name and style as O.P.(Crl) 150 of 2016 -: 4 :- 'Me.Heeman Robo Park'. At the same time, the Town Planning Department informed the 2[nd] accused that permission could be granted only on providing an access having 6 mtrs. width to the car parking unit. Consequently, the 2[nd] accused purchased 45 cents of property and created an access. At the same time, the said property was styled as paddy land in the prior title deed of the property. On the said ground the Panchayat and the Town Planning Department had declined sanction. A discussion was scheduled in the meeting so convened, for settling the issue. 5. Ext.P4 is the Minutes of the Industrial Single Window Clearance Board so convened at 3.45 p.m. on 01.02.2013 at the Chambers of the district Collector, Ernakulam. It shows that the first named in Ext.P1 was the then District Collector, Ernakulam, 13[th] named in Ext.P4 was the Senior Town Planner, Town Planning office, Ernakulam and 25[th] named in Ext.P4 was the Deputy Director of O.P.(Crl) 150 of 2016 -: 5 :- Panchayat, Ernakulam. Various other officials also participated in the meeting so convened. 6. In Ext.P4, item No.1, it has been shown that the Panchayat as well as the Town Planning Department had informed their inability to grant sanction on the ground that the property, through which the road was constructed, is a paddy land. The 22[nd] named in Ext.P4 as the participant was the then Secretary of the Mukkannur Grama Panchayat. The 12[th] named in Ext.P4 as the participant was none other than the President of the Mukkannur Grama Panchayat. 7. After discussions in the matter, the Industrial Single Window Clearance Board concluded that permission to reclaim paddy land could be granted only for public purpose and, therefore, sanction could be granted to the 2[nd] accused to make use of the same for access to the building only when it is vested in the Panchayat as a public pathway, thereby enabling the public and the Panchayat to make use O.P.(Crl) 150 of 2016 -: 6 :- of the same as a pathway and public property enabling access to all. The President of the Panchayat had unequivocally informed all the other officers in the Industrial Single Window Clearance Board that in case the property is vested in the Panchayat as a public property as well as the property of the Panchayat, the Panchayat would have no objection in granting sanction. Therefore, the Board directed the 2[nd] accused to approach the Panchayat and to take all necessary steps for obtaining such a sanction from the Panchayat. 8. Consequent to the aforesaid direction, which was issued through a consensus arrived at the meeting of the Industrial Single Window Clearance Board, the 2[nd] accused approached the Panchayat again. The Panchayat considered the matter through Ext.P6. Ext.P6 is the resolution passed by the Panchayat Committee as resolution No.4 in the meeting of the Committee on 08.03.2013. It seems that the entire matter was discussed O.P.(Crl) 150 of 2016 -: 7 :- and Ext.P6 resolution was passed by the Committee. Ext.P6 is signed by the President. In Ext.P6, it has been clearly mentioned that the 2[nd] accused had relinquished his rights over the said portion through which pathway has been constructed and the same is vested in the Panchayat as a public property as well as the property of the Panchayat, thereby enabling the members of the public as well as the Panchayat to make use of the said portion as a public road. Through the said resolution, the Panchayat has taken over the said property and they have decided to treat the property as the property of the Panchayat. It has been noted in Ext.P6 that the possession of that portion of the property has already been handed over by the 2[nd] accused to the Panchayat. In such circumstances, the Panchayat Committee has decided to request the District Industries Development Authority and the Town Planning Authorities to grant sanction to the 2[nd] accused for making use of the building as a multilevel car parking unit. O.P.(Crl) 150 of 2016 -: 8 :- 9. Ext.P6 resolution was duly conveyed to the General Manager of the District Industries Development Centre, Ernakulam, who is the Convenor of the Industrial Single Window Clearance Board. He considered the matter through Ext.P7. After considering all the above, the General Manager issued Ext.P7 to the petitioner herein under Section 10(1) of the Preservation of Paddy and Wet Land Act and requested the petitioner to extend the benefit of Section 10(1) of the Industrial Single Window Clearance Boards and Industrial Township Area Development Act, 1999 (hereinafter referred to as 'Act, 1999') to the 2[nd] accused. 10. Consequently, the petitioner extended the benefit of Section 10(1) of the Act to the petitioner by granting exemption from the provisions under Section 10(1) of the Preservation of Paddy and Wet Land Act. On receipt of the consent in the matter, the Director of Panchayats called for a report from the Deputy Director of Panchayats, Ernakulam, in the matter. The Deputy Director of Panchayats, O.P.(Crl) 150 of 2016 -: 9 :- Ernakulam, issued Ext.P9 report, thereby stating that all the actions taken by the petitioner in the matter were strictly in accordance with the directions of the Industrial Single Window Clearance Board, the General Manager of the District Industries Development Authority and also Ext.P6 resolution passed by the Grama Panchayat Committee on 08.03.2013. Even after that, it seems that the VACB has decided to register the FIR and to proceed with the investigation against the petitioner by arraigning him as the 1[st] accused in the vigilance case. 11. The learned Senior Counsel for the petitioner has pointed out that Ext.P4 decision of the Industrial Single Window Clearance Board in the matter is strictly in conformity with Section 8(1) and (3) of the Act, 1999. As per Section 8(3) of the Act, 1999, the decision taken by the District Board shall be communicated to the applicant and the authority concerned by the Convenor of the District Board. The General Manager of the District Board is the O.P.(Crl) 150 of 2016 -: 10 :- Convenor of the Industrial Single Window Clearance Board. As per Section 8(2) of the Act, 1999, the District Board is bound to take a decision in the matter within 60 days from the date of receipt of the application. They can take a decision to recommend to the authority concerned to issue the licence or permission applied for without any modifications or with such modifications as it thinks fit or to refuse clearance if the proposed construction, establishment or installation is objected. Here, in this particular case, the only objection forwarded by the Panchayat as well as the Town Planner was that permission could be granted to reclaim the paddy field for putting up the pathway only when that portion of the property is vested in the Panchayat for public purpose. Based on the discussions and deliberations in the Board, they directed the 2[nd] accused to approach the Panchayat again with such a proposal. Consequently, the 2[nd] accused handed over that property to the Panchayat and relinquished his rights over that property, as the property of O.P.(Crl) 150 of 2016 -: 11 :- the Panchayat, as is evident from Ext.P6 resolution. The Panchayat Committee has also decided to treat that property as the property of the Panchayat and to permit the public to make use of that pathway as a public pathway. No doubt, the 2[nd] accused is also a member of the public. When that portion of the property is altered as public property by treating it as the property of the Panchayat, the 2[nd] accused can also be permitted to make use of that pathway for having access to the building put up by him in his property for the installation of the multilevel car parking unit. 12. Through Ext.P10, it seems that the Principal Secretary, Finance, Government of Kerala, Joint Secretary, Department of Electronics and Information Technology (Government of India) as well as the Former Chief Executive Officer, Info Park, Kochi Sri.Sidhardha Bhatacharya IAS had appreciated the installation of such a multilevel car parking unit at that area. They have wished every success to the O.P.(Crl) 150 of 2016 -: 12 :- said venture undertaken by the said accused. 13. It seems that the 2[nd] accused has made this venture to avoid parking of vehicles on the roadside, which creates heavy traffic congestion in National Highway NH47. Being a novel idea, the act of the 2[nd] accused is something to be appreciated. He has installed a multilevel car parking unit for enabling the public to park their vehicles safely, without causing any hindrance or obstructions to the traffic through NH47. That is the reason why several appreciations were poured on the 2[nd] accused in that venture. The legality of the provisions contained in Act, 1999 was considered by the Division Bench of this Court in _**Shanmughan v. Vandazhy Grama Panchayat** [2016 (1) KLT 601]_ , wherein the validity of the deeming provision contained in Section 10 of the Act has been upheld. When such a direction as the one contained in Ext.P9 was issued, and if no clearance, licence or certificate, as the case may be, has been issued within the said time limit prescribed under Section 10, the O.P.(Crl) 150 of 2016 -: 13 :- licence or certificate, as the case may be, recommended for by the respective Board shall be deemed to have been issued after the expiry of the said period of 10 working days. Here, in this particular case, if at all the petitioner had not issued the clearance, as per the deeming provision under Section 10 of the Act, the 2[nd] accused could have treated it as licence as well as exemption etc. If as a matter of fact, the petitioner is not obeying the directions in Ext.P9 or the resolution taken by the Panchayat Committee through Ext.P6, he ought to have faced disciplinary proceedings. 14. Considering all the above, it is evident that the petitioner had not done anything illegal in the matter and has not committed any misconduct. It cannot be said that he has misused his official position or he has committed misconduct. All the proceedings against the petitioner through Ext.P2 are illegal and uncalled for. Matters being so, Ext.P2 as well as all further proceedings based on Ext.P2, as against the petitioner herein, are liable to be O.P.(Crl) 150 of 2016 -: 14 :- quashed. In the result, this O.P.(Crl.) is allowed and Ext.P2 as well as all further proceedings based on Ext.P2, as against the petitioner herein, are quashed. Sd/- **B. KEMAL PASHA, JUDGE.** ul/aks/- // True copy // P.S. to Judge.