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2018 Supreme(Ker) 396

IN THE HIGH COURT OF KERALA AT ERNAKULAM
K. ABRAHAM MATHEW, J.
Asok – Appellant
Vs.
State of Kerala – Respondent
W.P.(C) Nos.36735 of 2017 and connected cases
Decided On : 09-02-2018

Advocates Appeared:
For the Petitioner:S. Sreekumar (Sr. Advocate), A. Jani (Kollam), P. Martin Jose, P. Prijith & Thomas P. Kuruvilla.
For the Respondent: K. Sureshbabu Thomas(Addl. State Public Prosecutor), Government Pleader, Millu Dandapani, J. Ponni, P.M. Princy Lal, K.K. Vijayan, Amal Kasha, T.B. Hood, M. Isha & J. Mary Help John David.

Headnote:

The Kerala Water Supply and Sewerage Act 1986- S.16;; The Prevention of Corruption Act -13(2) r/w S.13(1)(d) ;; The Indian Penal Code- S.120B - What the F.I.R. says is that there was a vesting in the Kerala Water Authority of the property through which the sewerage line passed by virtue of S.16 of the Kerala Water Supply and Sewerage Act- The Addl Director of Vigilance and Anti Corruption Bureau prepared a report containing assumed facts and even falsehood and submitted it before the Lok Ayukta and on its basis he suo motu ordered a quick verification and thereupon, his subordinate officer after conducting a 'quick verification' registered the case, the F.I.R. (Ext P1) in which is only a condensed form of the report of his superior officer. This is against the spirit of the various judgments of the Supreme Court in various cases starting from Sirajudheen (AIR 1971 SC 520) and ending with Lalithakumari AIR 2014 SC 187). Preconceptions and misconceptions, predilections and predeterminations of a police officer shall not be the basis for registration of a case, especially, for an offence under the Prevention of Corruption Act.

Statement of facts:

The Deputy Superintendent of Police attached to the Vigilance and Anti Corruption Bureau suspected commission of the offences U/S.13(2) r/w S.13(1)(d) of the Prevention of Corruption Act and S.120B of the Indian Penal Code. The 5th accused entered into a conspiracy with the other accused to commit the offences under the Prevention of Corruption Act. On 18.2.2017 the police officer registered a case for the said offences, the number being 3 of 17 of VACB, SIU-1 Police Station. This is the sum and substance of the F.I.R. prepared in English by the Deputy Superintendent of Police. The .F.I.R is sought to be quashed by the first, third and fifth accused, who are the petitioners in Writ Petitions 39469, 37237 and 36735 of 2017 respectively in which the second and fourth accused figure as respondents.

Finding of the court:

The claim of title to the property in dispute by the Water Authority, which is one of the material allegations in the F.I.R. is not based on any document, but on a misunderstanding of certain statutory provisions. Even if the allegation in the FIR that the property in dispute belongs to the Water Authority is accepted as true, the actions of the accused will not attract the provisions of the Prevention of Corruption Act since shifting of the sewerage line from one part of its property to another part did not give any pecuniary advantage to the company-The F.I.R. does not disclose commission of any offence under the Prevention of Corruption Act- The proceedings in Crime No.3 of 2017 of the Vigilance and Anti Corruption Bureau, SIU-1 Police Station are quashed

Result: Writ Petitions are allowed

JUDGMENT :

The Kerala Water Authority has been providing sewerage services in Thiruvanantha-puram Municipal Corporation since 1960s. The sewerage line passed through the property which is in the possession of Artech Realtors Pvt. Ltd. (hereinafter called the company) and situated at Pattur, of which the petitioner in W.P. No.36735 of 2017 (fifth accused) is the Managing Director. At the request of the company, on 7.8.2008, the petitioner in W.P.No.39469 of 2017 (first accused), the then Executive Engineer of the Kerala Water Authority, ordered shifting of the sewerage line from the property in the possession of the company on its remitting Rs.14.80 lakhs. Because of the intervention of the Managing Director of the Water Authority, it did not materialise. The Water Authority claimed title to the property through which the sewerage line passed (hereinafter referred to as the property in dispute). But the company again made the same request to the Water Authority, Water Resources Department and Revenue Department. The Vigilance Department requested the Water Authority to protect the ‘puramboke’ land. By illegal means the 5th accused ‘pursued the issuance’ of Government Order Rt.No.1024/14/RD dated 18.2.2014 constituting a committee comprising Land Revenue Commissioner (Chairman), District Collector, Thiruvananthapuram, Director Survey and Land Records and Managing Director, Kerala Water Authority (members) for conducting site inspection. Meanwhile, on 8.4.2014 the 6th respondent in W.P. No.36735 of 2017 (second accused) Executive Engineer of the Kerala Water Authority reported to the Land Revenue Commissioner that the sewerage line passed through the property belonging to the company comprised in Survey No.1805 B and 1806 B and C, for which he had no authority. The petitioner in W.P. No.37237 of 2017 (third accused), the then Chief Secretary, Government of Kerala, instead of referring the matter to the Water Resources Department accepted the report though it was not endorsed by the Managing Director of the Kerala Water Authority. The third accused Chief Secretary made the following ‘evasive observation’ in the relevant file: “ It appears that the land through which pipeline passes through is not ‘poramboke’. It appears just and proper that it should be shifted out of Realtors’ land so as it does not pose a hindrance to the Realtors plans provided the entire cost for the shifting of the pipeline is borne by the Realtors.” The 8th respondent in W.P. No.36735 of 2017 (4th accused), the then Chief Minister, approved it. This resulted in the Additional Secretary for the Revenue directing the Managing Director of the Kerala Water Authority to take appropriate steps to shift the sewer from the property of the company. The shifting was completed on 3.6.2014. It was done “by violating S.16 of the Kerala Water Supply and Sewerage Act 1986”, which provides that all assets including sewerage services, sub soil appertaining of the sewers or any pipes shall vest with the Kerala Water Authority”. The decision to shift the sewerage line was taken notwithstanding the claim of the Water Authority that the property through which it passed is ‘poramboke’ and it does not belong to the company. The third accused (Chief Secretary) and the 4th accused (Chief Minister) ‘kept in dark’ the Minister for the Water Resources and the Principal Secretary of the Department. The illegal order for shifting of the sewer was made to enable the company to construct a high rise building and sell it at a high price. The accused public servants (accused 1 to 4) helped the company whose Managing Director is the 5th accused gain pecuniary advantage, for which the former sacrificed public interest. The Deputy Superintendent of Police attached to the Vigilance and Anti Corruption Bureau suspected commission of the offences U/S.13(2) r/w S.13(1)(d) of the Prevention of Corruption Act and S.120B of the Indian Penal Code. The 5th accused entered into a conspiracy with the other





















































































































































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