IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29TH DAY OF MAY, 2019 PRESENT THE HON’BLE MR. ABHAY S. OKA, CHIEF JUSTICE AND THE HON’BLE MR. JUSTICE P.S. DINESH KUMAR WRIT PETITION NO.57920/2016 (LB-BMP) PIL BETWEEN NAMMA BENGALURU FOUNDATION A REGISTERED PUBLIC CHARITABLE TRUST HAVING ITS REGISTERED OFFICE AT NO 3J, NA CHAMBERS, 7TH ‘C’ MAIN 3RD CROSS, 3RD BLOCK, KORAMANGALA BENGALURU-560 034 REPRESENTED BY ITS AUTHORISED SIGNATORY SHRI. SRIDHAR PABBISETTY ... PETITIONER (BY SHRI. ADITYA SONDHI, SENIOR COUNSEL FOR SHRI. MRINAL SHANKAR, ADVOCATE) AND:
1. STATE OF KARNATAKA VIDHANA SOUDHA BANGALORE-560 001 THROUGH ITS CHIEF SECRETARY 2. URBAN DEVELOPMENT DEPARTMENT VIKASA SOUDHA BANGALORE-560 001 THROUGH ITS ADDITIONAL CHIEF SECRETARY 3. BRUHAT BENGALURU MAHANAGARA PALIKE N.R SQUARE BANGALORE-560 002 THROUGH ITS COMMISSIONER 4. SHRI. M. LAKSHMINARAYANA AGED ABOUT 58 YEARS PRESENTLY OFFICIATING AS THE PRINCIPAL SECRETARY TO GOVERNMENT PUBLIC WORKS, PORTS AND INLAND WATER TRANSPORT DEPARTMENT, 3RD FLOOR VIKASA SOUDHA, BENGALURU-560 001 ... RESPONDENTS (BY SHRI. D. NAGARAJ, AGA FOR R1 & R2; SHRI. PAVAN KUMAR FOR SHRI. H.DEVENDRAPPA, ADVOCATES FOR R3; SHRI. VIVKE HOLLA, ADVOCATE FOR R4 ) THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER DATED SEPTEMBER 29, 2016 PASSED BY R-2 AT ANNEX-A.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING – ‘B’ GROUP THIS DAY, THE CHIEF JUSTICE MADE THE FOLLOWING:
ORDER Heard learned Senior counsel appearing for the petitioner, the learned AGA for first and second respondents and we have also heard the learned counsel appearing for third and fourth respondents. By consent, the matter is taken up for final disposal.
2. The petitioner made a representation dated 27th February 2015 (Annexure-B1) to the Additional Chief Secretary to the Government of Karnataka, Urban Development Department. The prayer made in the representation was for grant of sanction for prosecution under Section 197 of Code of Criminal Procedure, 1973 and Section 19 of the Prevention of Corruption Act, 1988, for offences under Section 166 and 167 of the Indian Penal Code and Section 13(1)(d) of the Prevention of Corruption Act, 1988. By the order which is impugned in this writ petition, the Additional Chief Secretary to the Government, Urban Development Department, came to the conclusion that powers to grant sanction do not vest in him and the same vest in the Personnel Department of the Government.
3. We must note here that there is no dispute between the petitioner and the first and second respondents that the power to grant sanction does not vest in the Additional Chief Secretary to the Government of Karnataka, Urban Development Department. In fact the learned counsel for the petitioner stated that he is not disputing the correctness of the aforesaid finding recorded in paragraph No.25 of the impugned order and the petitioner desires to make an application to the concerned authority which is competent to consider the prayer for grant of sanction. The submission of the learned Senior counsel for the petitioner is that out of the three issues framed in paragraph No.23 of the impugned order, the second and third issues are framed only with a view to decide whether a case was made out for grant of sanction. Therefore, after coming to the conclusion that he is not competent to consider the prayer for grant of sanction, the said officer ought not to have decided the second and third issues.
4. The learned AGA supported the finding recorded in paragraph No.25 which records that the Additional Chief Secretary to the Government of Karnataka, Urban Development Department has no power to grant sanction as prayed by the petitioner.
5. The learned counsel for the fourth respondent firstly submitted that it was the petitioner who made a representation to the Additional Chief Secretary to the Government of Karnataka, Urban Development Department for grant of sanction and as the Additional Chief Secretary had no power, petitioner ought not to have approached him. His second contention is that the findings recorded on the last two issues in the impugned order are findings of fact. His submission is that the said issues were raised on the basis of allegations made by the petitioner in the representation in which the prayer for sanction was made. He would, therefore submit that no interference can be made with those findings recorded in the impugned order. He would submit that the findings recorded on the last two issues should not be disturbed by this Court.
6. We have given careful consideration to the submissions of the learned counsel and we have perused the representation made by the petitioner, a copy of which is produced as Annexure ‘B1’. A careful perusal of the representation shows that the only prayer made therein is to grant sanction to prosecute the fourth respondent. The allegations made in the representation against the fourth respondent about acts and/or omissions, are in support of the plea of the petitioner that sanction deserves to be granted to prosecute the fourth respondent. In paragraph No.25 of the impugned order, the Additional Chief Secretary to the Government of Karnataka, Urban Development Department recorded a categorical finding that power to grant sanction to prosecute the fourth respondent does not vest in him. There is no dispute raised before us regarding the correctness of the said finding.
7. Perusal of the issues raised by the Additional Chief Secretary to the Government of Karnataka, Urban Development Department in paragraph No. 23 shows that the last two issues were essentially framed with a view to come to a conclusion whether a sanction deserves to be granted or not. After having recorded a finding that he had no power to consider the prayer for grant of sanction, there was no occasion to decide the other two issues on merits, inasmuch as the consideration of the said issues was required only if the Additional Chief Secretary to the Government of Karnataka, Urban Development Department had power to consider the prayer for grant of sanction. Therefore, in our view, after holding that he was powerless to consider the prayer for grant of sanction, the Additional Chief Secretary to the Government of Karnataka, Urban Development Department exceeded the jurisdiction vested in him by recording findings on other two issues namely issues (b) and (c). Therefore, the said findings will have to be set-aside not on merits but on the ground that the Additional Chief Secretary to the Government of Karnataka, Urban Development Department was powerless to go into adjudication of the said two issues for the purpose of considering the prayer for grant of sanction.
8. The argument of the fourth respondent is that as allegations were made by the petitioner against the fourth respondent, the Additional Chief Secretary to the Government of Karnataka, Urban Development Department was competent to go into the same. The said argument cannot be accepted as the representation ought to have been rejected only on the ground of lack of power.
9. Hence, the petition must succeed in part and we pass the following:
ORDER (a) The impugned order dated 29th September 2016 except to the extent of finding recorded in paragraph No.25 thereof, is hereby quashed and set-aside;
(b) It is open for the petitioner to make an application to the appropriate Authority for grant of sanction to prosecute the fourth respondent. If such application is made, the concerned Authority shall consider the same in accordance with law;
(c) We clarify that findings on issues (b) and (c) formulated in paragraph No.23 of the impugned order are set-aside not on merits, but on the ground that the Additional Chief Secretary to the Government of Karnataka, Urban Development Department had no power or jurisdiction to record the said findings;
(d) We make it clear that we have not adjudicated on the question whether sanction deserves to be granted to prosecute the fourth respondent. All contentions in that behalf are left open to be considered by the competent Authority.
(e) There shall be no orders as to costs.
Sd/- CHIEF JUSTICE Sd/- JUDGE SPS