IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 12TH DAY OF MARCH, 2019 PRESENT THE HON’BLE MR. L. NARAYANA SWAMY, ACTING CHIEF JUSTICE AND THE HON’BLE MR. JUSTICE P.S. DINESH KUMAR WRIT PETITION No.30901 OF 2014 (GM - KLA) BETWEEN:
SRI.B.M.SUKUMAR SHETTY S/O LATE K L MAJAYYA SHETTY AGED ABOUT 62 YEARS R/AT NEMPU VANDSE, KUNDAPURA TALUK UDUPI DISTRICT ... PETITIONER (BY SHRI.S.M.CHANDRASHEKAR, SR. ADV. FOR SHRI H.PAVANA CHANDRA SHETTY, ADVOCATE) AND:
1. HON’BLE LOKAYUKTA KARNATAKA, M.S. BUILDINGS DR.AMBEDKAR ROAD BENGALURU – 1 2. STATE OF KARNATAKA REP:BY ITS PRINCIPAL SECRETARY REVENUE DEPARTMENT OF MUZRAI, ROOM NO.505, 5TH FLOOR, M.S. BUILDING III GATE, BENGALURU - 1 3. K.PARAMESHWARA ADIGA S/O LATE NARSI SUBBARAYA ADIGA, AGE: MAJOR, RESIDING AT KOLLUR VILLAGE, KUNDAPURA TALUK, UDUPI DISTRICT PIN : 576 220 4. K.SRIDHAR ADIGA S/O VISHVESHWARA ADIGA, AGE: MAJOR, RESIDING AT KOLLUR VILLAGE, KUNDAPURA TALUK, UDUPI DISTRICT PIN – 576 220 5. K.CHANDRASHEKAR PURANIK S/O VENKATESH PURANIK, AGE: MAJOR, RESIDING AT KOLLUR VILLAGE, KUNDAPURA TALUK, UDUPI DISTRICT, PIN – 576 220 6. SUDHARSHAN JOIS, S/O PURUSHOTHAM JOIS, AGE : MAJOR, RESIDING AT KOLLUR VILLAGE, KUNDAPURA TALUK, UDUPI DISTRICT, PIN – 576 220 7. RAMESH S/O NOT KNOWN, AGE: MAJOR, PWD CONTRACTOR, RESIDING AT KOLLUR VILLAGE, KUNDAPURA TALUK, UDUPI DISTRICT, PIN – 576 220 8. BHASKAR GANIGA S/O NOT KNOWN AGE MAJOR, CONTRACTOR, RESIDING AT KOLLUR VILLAGE, KUNDAPURA TALUK, UDUPI DISTRICT, PIN – 576 220 9. KANALA S/O NOT KNOWN, AGE: MAJOR, EX.VILLAGE PANCHAYATH MEMBER RESIDING AT KOLLUR VILLAGE, KUNDAPURA TALUK, UDUPI DISTRICT, PIN – 576 220 10. MARUTHI S/O NOT KNOWN, AGE:MAJOR, VILLAGE PANCHAYATH MEMBER RESIDING AT KOLLUR VILLAGE, KUNDAPURA TALUK, UDUPI DISTRICT, PIN- 576 220 11. GOPALA KRISHNA ADIGA, S/O NOT KNOWN, AGE: MAJOR, KUNDAPURA TALUK PANCHAYATH MEMBER, RESIDING AT KOLLUR VILLAGE, KUNDAPURA TALUK, UDUPI DISTRICT PIN- 576 220 ... RESPONDENTS (BY SHRI MALLIKARJUN C. BASAREDDY, ADV. FOR R1; SHRI VASANTH V. FERNANDES, HCGP FOR R2;
SRI ARUNA SHYAM, ADV. FOR R3-R6; SHRI M. E. NAGESH, ADV. FOR R11;
R7, R8, R9, R10 SERVED UNREPRESENTED) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE IMPUGNED ORDER OF THE LOKAYUTHA DTD.11.9.2013 VIDE ANNEX-J.
THIS PETITION COMING ON FOR FINAL HEARING, THIS DAY, P.S.DINESH KUMAR J, MADE THE FOLLOWING:
O R D E R Petitioner has called in question the draft report dated 11th September, 2013, forwarded by the Karnataka Lokayukta under Section 12(1) of the Karnataka Lokayukta Act, 1984 (for short, hereinafter referred to as ‘the Act’) inter alia recommending to the State Government to initiate criminal prosecution against petitioner and the then Executive Officer for mismanagement of Kolluru Mookambika Temple Fund and also Golden Chariot fund.
2. Briefly stated the facts of the case are, by Government Order No.KamEe 176 MuABi 2004, Bangalore dated September 03, 2004, the State Government constituted a Committee called Sri Mookambika Temple Committee to build a Golden Chariot estimated at Rs.2.50 crore on terms and conditions mentioned therein. It appears that the Golden Chariot was built and it was dedicated to the community at large on February 14, 2005. Thereafter on March 05, 2005 a complaint was lodged by private respondents No.3 to 11 to the Lokayukta alleging that there was mismanagement of funds earmarked for building the Golden Chariot. After hearing the petitioner, the Lokayukta has forwarded a report to set law into motion against the petitioner and others. Feeling aggrieved, petitioner has filed this writ petition.
3. Shri S.M. Chandrashekar, the learned Senior Advocate appearing for the learned Advocate for the petitioner submits that a Committee was constituted on November 25, 2003 by the Commissioner, Hindu Religious and Charitable Endowments Department. The Committee consists of sixteen persons of which the petitioner is the Chairman. Pursuant to Order dated September 03, 2004, the Golden Chariot has been built strictly as per the decision taken by the Committee and there is absolutely no mismanagement or misappropriation of funds. By Government order dated June 28, 2011, the State Government, in a Departmental Enquiry, dropped charges against Sri R. Madhav, the Administrative Officer of Kukke Sri Subramanya Swamy Temple, Dakshina Kannada District and who was the former Administrative Officer of Kolluru Sri Mookambika Temple, Udupi District. Adverting to the recitals contained in the said order, the learned Senior Advocate argued that it is specifically stated in the said Government Order that insofar as the complaint with regard to mismanagement of funds for building the Golden Chariot is concerned, the Government have recorded that there is no financial irregularity or loss. However, by order dated July 07, 2014, pursuant to the Report forwarded by the Lokayukta the State Government have directed registration of criminal complaint against petitioner, one Sri A.B. Patil and Sri R. Madhav. He submits that once the Government have recorded in the Government Order that there was no financial loss or mismanagement of funds, they could not have subsequently ordered for registration of criminal complaint. The said Government Order dated July 07, 2014 is produced as Annexure-A5 with this petition. He further submits that the report being conspicuously one under Section 12(1) of the Act which can be forwarded only in respect of ‘grievance’, no criminal proceedings could have been initiated. In support of his submission, the learned Senior Advocate relied upon a decision of this Court in the case of MILINDA VIDYASAMSTHE v. THE STATE OF KARNATAKA AND OTHERS in Writ Petition No.48876 of 2015 decided on July 01, 2006 to contend that when there is an alternative remedy for the complainants, the Lokayukta could not have entertained the complaint. He adverted to Section 8(1)(b) of the Act and contended that if the complainant has or had any remedy by way of appeal, revision or review, the Lokayukta shall not conduct any investigation under the Act.
4. Shri Mallikarjun C. Basareddy, learned Advocate appearing for the Lokayukta and Shri Vasanth V. Fernandes, learned Government Advocate argued in support of the report forwarded by the Lokayukta.
5. We have carefully considered rival submissions and perused the records.
6. Indisputable facts are, the Government by their order dated November 25, 2003 formed a Committee to build a Golden Chariot. The building of Golden Chariot was completed and it has been dedicated to the community at large on February 14, 2005. On March 05, 2005 the private respondents in this petition are said to have filed the complaint. It is relevant to note that private respondents No.3, 4, 5 and 6, who are said to be complainants before Lokayukta, have filed affidavits before this Court disowning their signatures on the complaint against the petitioner. They have also stated that they have no knowledge about the said complaint purportedly filed in their name and that they have no grievance against the petitioner. In Government Order dated June 28, 2011 while dropping the charges against Shri. R. Madhav, Government have recorded that in respect of building of Golden Chariot, there was no financial loss or mismanagement or irregularity. However, it is surprising to note that having recorded such finding and exonerating Shri R. Madhav by an order passed by Order and in the name of the Governor of Karnataka, the State Government have turned around and by their subsequent order Annexure-A5 dated July 07, 2014 directed registration of criminal proceedings against three persons including the petitioner. This is clearly impermissible in law.
7. Section 43 of the Karnataka Hindu Religious Institution and Charitable Endowment Act, 1997 provides for a mechanism for issuance of show cause notice and holding of enquiry. Therefore, Shri. Chandrashekar, learned Senior Advocate is right in his submission that Lokayukta could not have entertained the complaint where there exists an alternative statutory remedy. Admittedly, criminal proceedings are initiated based on the report submitted by the Lokayukta. The preamble of Lokayukta’s report shows that the report is under Section 12(1) of the Act, whereas in the operative portion, direction is issued exercising power under Section 12(3) of the Act. Section 12(1) of the Act deals with cases where ‘grievances’ are brought to the notice of Lokayuktha. Having considered complaints and prepared the report under Section 12(1) of the Act, directions could not have been given under Section 12(3) of the Act. Therefore, the report forwarded by the Lokayuktha suffers from ‘non-application’ of mind and therefore, liable to be set-aside. Consequently, criminal proceedings initiated by the State Government based on such report by the Lok Ayuktha is unsustainable in law.
8. In view of the above discussion, we are of the view that the action taken by the State Government clearly amounts to approbation and reprobation. We say so because, while dropping proceedings against Shri R. Madhav in Government Order dated June 28, 2011 the State Government have clearly recorded that there was no financial loss or irregularity or mismanagement of funds. Hence, initiation of criminal proceedings against the petitioner is untenable in law. Resultantly, this petition must succeed and accordingly it is allowed.
Hon’ble Lokayuktha’s Report dated September 11, 2013 (Annexure-J) and Government order No.PÀAE 104 ªÀÄĸÉë 2013, ¨ÉAUÀ¼ÀÆgÀÄ dated July 7,2014 (Annexure-A5) are quashed.
Sd/-
ACTING CHIEF JUSTICE Sd/- JUDGE lnn