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2020 Supreme(All) 1343
IN THE HIGH COURT OF ALLAHABAD (LUCKNOW BENCH)
ANIL KUMAR, MANISH MATHUR, JJ.
Ajai Kumar and Ors. - Appellants
Versus
State of U.P. and Ors. - Respondents
Misc. Bench No. 792 of 2020
Decided On : 18-06-2020
Advocate Appeared:
For the Appellant : Pradeep Kumar Rai, Prakarsh Pandey and Praveen Kumar Shukla
For the Respondents: A.P. Singh and Shishir Jain
Point of law : competent Court/Court of Magistrate, before whom charge sheet has been filed and the plea regarding the sanction for the prosecution against the petitioners shall be taken by them as an preliminary issue and thereafter the same shall be decided finally as per law by the Court concerned
Headnote:
U.P. Lokayukta and U.P. Lokayuktas Act, 1975 - Section 80 – Retirement from service - evidence against the petitioners – Claim of compensation - With the consent of learned counsel for the parties, writ petition is being heard and decided at the admission stage - By means of the present writ petition, the petitioner has prayed for following relief:
- (a) That the order dated 31/08/2019 passed by opposite party no. 3 whereby prosecution sanction for prosecuting the petitioners under Section 409/120B I.P.C. and under Section 13(1) read with Section 13(2) of Prevention of Corruption Act, 1988 has been granted, may be quashed as learned sanctioning authority has granted the impugned sanction without there being any evidence against the petitioners and without application of mind - Whether the applicant before it was similarly situated or not and/or whether the exonerated officer in the departmental proceeding also faced same charges including the charge of being a party to the larger conspiracy –
Finding of the court : Submission made by learned counsel for the petitioner is that the impugned sanctioned order has been passed by the competent authority without application his mind, rather under the pressure of the higher authority, the same is illegal and arbitrary in nature. The validity of the sanction order is perfectly valid as per law laid down by Hon'ble the Apex Court in the case of Mansukhlal Vitthaldas (Supra) in which it has been observed that "Sanction lifts the bar for prosecution. The grant of sanction is not an idle formality or an acrimonious exercise but a solemn and sacrosanct act which affords protection to the government servants against frivolous prosecution. Sanction is a weapon to ensure discouragement of frivolous and vexatious prosecutions and is a safeguard for innocent but not a shield for the guilty as the validity of sanction depends on the applicability of mind by the sanctioning authority to the facts of the case and also the material and evidence collected during investigation. Sanctioning authority has to apply its own independent mind for generation of genuine satisfaction whether prosecution has to be sanctioned or not - Thus, taking into consideration the facts and circumstances of the case as well as law as stated herein above, we dispose of the writ petition with a direction that the Investigating Agency shall conduct the investigation in pursuance to the order dated 31.08.2019 by which sanction has been granted for prosecution against the petitioners as per procedure prescribed for the said purpose under law and thereafter shall file a police report before the competent Court/Court of Magistrate
ORDER :
Anil Kumar, J.
1. Heard learned counsel for the petitioner, learned A.G.A. for the opposite party nos. 1, 2, 4, 6 and 7, Sri Shishir Jain, learned counsel for the opposite party no. 3 and Sri A.P. Singh, learned counsel for the opposite party no. 5.
2. With the consent of learned counsel for the parties, writ petition is being heard and decided at the admission stage.
3. By means of the present writ petition, the petitioner has prayed for following relief:
(a) That the order dated 31/08/2019 passed by opposite party no. 3 whereby prosecution sanction for prosecuting the petitioners under Section 409/120B I.P.C. and under Section 13(1) read with Section 13(2) of Prevention of Corruption Act, 1988 has been granted, may be quashed as learned sanctioning authority has granted the impugned sanction without there being any evidence against the petitioners and without application of mind.
(b) That the petitioners are challenging the inquiry report prepared by the Lok Ayukta, U.P. in complaint no. 2115-2012 without adhering to the legal provisions and without taking opinion/assistance of the technical experts on the subject matter.
(c) That the petitioner no. 1 is also challenging the Open Vigilance Inquiry initiate against him in respect of the work done in the year 2007-2011 by the State Government on the basis of the report of Lok Ayukta, U.P..
4. Learned counsel for the petitioners submitted that State Government took a decision for construction of memorials and parks in Lucknow and Noida and in pursuance thereof three members Committee consisting of Managing Director of U.P. Rajkiya Nirman Nigam Limited, Lucknow, the Director of Department of Geology and Mining and its Joint Director was constituted for the purposes of making an inspection in the Ahrarra Region of District-Mirzapur for the purposes of verifying the sufficient quantity of pink stones and the Committee found that pink sandstones were available in sufficient quantity.
5. Thereafter the Committee of seven officials including three officers of earlier Committee submitted its report indicating therein that it was not possible to obtain approximately 2.00 lacks cubic feet of sandstone from one single area and such supply should be obtained from a number of lease areas and it was further recommended that a consortium of lease holders should be constituted for the purposes of entering into an agreement regarding supply of sandstones.
6. Accordingly, the formalities were completed and on the basis of quotation submitted by the respective supplier the rate of Rs. 150 per cubic foot was accepted and a further amount of Rs. 20/- per cubic foot was to be paid for the purposes of loading etc. in respect of the constructions at Lucknow.
7. The Noida Development Authority decided to construct the compound wall through U.P. Rajkiya Nirman Nigam Limited vide invitation dated 28.01.2008 and on the basis of the proposal of the Noida Development Authority the Rajkiya Nirman Nigam agreed to work on the basis of the schedule of the rates as applicable to C.P.W.D. (DSR) in the year 2007 and accordingly an agreement dated 10.04.2008 was entered into between the Noida Authority and the U.P.R.N.N..
8. Before commencement of the work the cost of the project and rates indicated therein was also examined and approved.
9. In order to maintain the uniformity and availability of the material and taking into consideration the rate fixed for the Lucknow project the purchase committee for fixing of the rates of Mirzapur stone regarding Noida project, considered the rates of Mirzapur sandstone rough size and fixed Rs. 103.00 per cubic foot. It was provided that the supplier shall deliver 633.19 cubic feet rough size Mirzapur stone and against that the payment of cut size stone that is 434.74 cubic feet will have to be made at the rate of Rs. 150 per cubic foot. This provision itself indicates that the rate determined and paid for the Noida project was at the rate of Rs. 103 per cubic foot for cut size st
