Dismissed

Bengia Sagung and Anr. v. the State of Ap and19 Ors.

Gauhati HC7 Mar 2022WP(C)/86/2022

Case brief

AI extract

What is this about?

The Gauhati High Court dismissed a writ petition alleging embezzlement via duplicity of road construction works, holding the dispute involves disputed questions of fact requiring factual enquiry not desirable under Article 226.

What did the court decide?

No order as to cost. Notice to respondents dispensed with. Petitioners not precluded from alternative remedies available for their FIR.

Bengia Sagung and Anr. Vs the State of Ap and19 Ors. — Corruption | Gauhati HC (2022)

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GAHC040002212022

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) (ITANAGAR BENCH)

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Case No. : WP(C) 86/2022

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1:Bengia Sagung and Anr. S/o Shri Bengia Tangak,

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R/o Pari Village, PO and PS Koloriang, Kurung Kumey District, Arunachal Pradesh and presently residing at Lekha/Tomru segment/village, Doimukh PO and PS Doimukh, Papum Pare District (AP). Contact No. 9612032855 (M)

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2: Lingdum Taging S/o Lt. Lingdum Tasuk

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R/o Homi Village Tali PO and PS Sangram Kurung Kumey District (AP) and presently r/o P Sector Nirjuli PO/PS Nirjuli Papum Pare District Arunachal Pradesh. Contact No. 841307279

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VERSUS

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1:THE STATE OF AP and19 Ors. Represented through Public Prosecutor

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2:The Chief Secretary cum Chief Vigilance Officer Civil Secretariat Itanagar PO and PS Itanagar Govt. of Arunachal Pradesh

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3:The Superintendent of Police

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Special Investigation Cell (Vigilance) Civil Secretariat Block 3rd Floor No1 Itanagar Govt. of Arunachal Pradesh.

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4:The Officer in Charge Special Investigation Cell (Vigilance) Itanagar Govt. of Arunachal Pradesh

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5:The Commissioner/Secretary Public Work Department Civil Secretariat Itanagar PO and PS Itanagar Govt. of Arunachal Pradesh 6:The Commissioner/Secretary Public Work Department Itanagar PO and PS Itanagar Govt. of Arunachal Pradesh. 7:The Chief Engineer (PMGSY) Rural Work Department Itanagar PO and PS Itanagar Govt. of Arunachal Pradesh 8:The Superintendent of Engineer (PMGSY) Rural Work Department Itanagar PO and PS Itanagar Govt. of Arunachal Pradesh 9:The Executive Engineer RWD Laaying Yangte Division Sangram PO and PS Sangram Kurung Kumey District

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Govt. of Arunachal Pradesh.

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10:The Assistant Engineer Rural Works Sub Division Patuk PO and PS Koloriang Kurung Kumey District Govt. of Arunachal Pradesh.

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11:Junior Engineer Rural Works Section Parsi Parlo PO and PS Koloriang Kurung Kumey District Govt. of Arunachal Pradesh.

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12:The Chief Engineer (Central Zone A) Public Work Department Itanagar PO and PS Itanagar Govt. of Arunachal Pradesh. 13:The Superintending Engineer Yachuli Civil Circle PWD (AP) PO and PS Yazali Lower Subansiri District.

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14:The Executive Engineer Sangram PWD Division PO and PS Sangram K/Kumey Distt. Govt. of Arunachal Pradesh

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15:The Assistant Engineer Koloriang Sub Division PWD PO and PS Koloriang Kurung Kumey District Govt. of Arunachal Pradesh.

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16:The Junior Engineer

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Koloriang Sub Division PWD PO and PS Koloriang Kurung Kumey District Govt. of Arunachal Pradesh.

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17:Ha Tatu Proprietor of M/s Kenge Construction Co. R/o ESS Sector Narba Colony Itanagar PO and PS Itanagar Papum Pare District Arunachal Pradesh.

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18:Lokam Yasi Proprietor of M/s Lokam Yasi Carriage and Construction (JV) R/o Dam SIte Naharlagun PO and PS Naharlagun Papum Pare District Arunachal Pradesh.

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19:The Chief Engineer (CSQ) Public Work Department Itanagar Govt. of Arunachal Pradesh. 20:The Superintendent of Engineer (CSQ) O/o Chief Engineer (CSQ) PWD Itanagar Govt. of Arunachal Pradesh

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Advocate for the Petitioner : Nalo Pada

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Advocate for the Respondent : GA (AP)

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BEFORE HONBLE MR. JUSTICE KALYAN RAI SURANA

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ORDER

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Date : 07.03.2022

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Heard Mr. N. Pada, learned counsel for the petitioners. Also heard Ms. T. Jini, learned Addl. Public Prosecutor for the State, representing respondent no.1. She also appears for respondent nos. 2 to 4 on behalf of Mr. O. Pada, learned Special Counsel, Mr. D. Kamduk, learned counsel appears for respondent nos. 5 and 7 to 11, and Mr. I. Rilam, learned counsel appears for respondent nos. 6, 12 to 16, 19 and 20.

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In view of the nature of order proposed to be passed, issuance of notice on the private respondent nos.17 and 18 is dispensed with.

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By filing this writ petition under Article 226 of the Constitution of India, the case projected by the petitioners is that they had lodged an FIR dated 01.10.2021 against the respondent nos. 5 to 18 and others alleging embezzlement of public money on account of two construction works, being (1) construction of road from Bridge Point to Parsi-Parlo CO HQ (Length 39 km) and, (2) construction of road from Yumlam to Lebia (Length 30 km). It is alleged that the said road was shown as single existing road and completed in the year 2012 under different RIDF projects. However, the said construction had never taken place and that the same road has been constructed and reconstructed in the year 2017 and 2019, thus there was duplicacy of same work. The petitioners also project that they had also submitted representations dated 05.07.2021, 01.10.2021 and 08.10.2021 before the official respondents with a request for cancellation and stoppage of further payment for the work and for

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recovery of the misappropriated amount. It is projected that that as no action has been taken by the respondents and instead the official respondents have allowed respondent nos. 17 and 18 to siphon of huge public money, the present writ petition has been filed under Article 226 of the Constitution of India.

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At this stage, the learned counsel for the petitioners has submitted that the writ petition is defective and therefore, he may be permitted to withdraw this writ petition and to file afresh one. In this regard, on a query of the Court as to the nature of defect, the learned counsel for the petitioners had made two fold submissions. It is firstly submitted that this writ petition ought to have been filed as a PIL and secondly, it is submitted that the concerned villagers, who are users of the road are also required to be made parties. Both the explanation tendered has been considered by the Court. Merely as regards the defect in form of the writ petition that it was not filed by way of PIL, the Court does not find that this is so material so as to affect the maintainability of the writ petition. Secondly, if the petitioners are seeking liberty to approach the Court again by filing a fresh writ petition, the Court finds that the said ground could not hold water for a simple reason because the two works extend to a length of 39 km and 30 km respectively. Therefore, if the prayer made by the learned counsel for the petitioners is accepted, the number of affected persons who would be impleaded for being heard may lead to impleading hundreds and thousands of respondents for no worthwhile purpose. Therefore, the prayer is refused.

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In the present case in hand as per the allegations made by the petitioners, the construction of the road was completed in the year 2012 under different RIDF projects on different occasions and that subsequent DPRs were fake. If construction work has been completed in the year 2012 and subsequent works

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have been done in the year 2017 and 2019 respectively, the issue raised in the writ petition would be highly disputed question of fact which would require roving and fishing enquiry for fact finding.

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From the submissions made by the learned counsel for the petitioners, it appears that the case projected by the petitioners is that a road which was already shown to have been completed in the year 2012, is being constructed and reconstructed again in the year 2017 and 2019. On a query of this Court, the learned counsel for the petitioners have not shown the contractual defect liability period in respect of the work which was already shown to have been completed in the year 2012. Thus, there are no materials to show that the road which was constructed in the year 2012 was absolutely weather proof and was designed not to be damaged in any condition till the year 2017, when subsequent reconstruction of road was done in the year 2017.

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Therefore, it appears that in the absence of materials filed by the petitioners, the Court will have to make a roving enquiry to find out the nature of construction which was done in the past years before arriving at any conclusion. The said exercise would require some amount of evidence to gone into, which is not desirable in exercise of jurisdiction under Article 226 of the Constitution of India.

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Therefore, this writ petition stands dismissed at this motion stage without issuance of notice on the respondents.

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There shall be no order as to cost.

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This order shall not preclude the petitioners from availing any alternative remedy as may be available in respect of their FIR.

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JUDGE

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Comparing Assistant

Bengia Sagung and Anr. v. the State of Ap and19 Ors.

Case brief

What is this about?

What did the court decide?

Bengia Sagung and Anr. v. the State of Ap and19 Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

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