Allowed

Manjunath Nehru Olekar S/O Nehru C Olekar v. Erappa M Lamani S/O Mangalappa

Karnataka HC5 Sept 2013WP/76325/2013

Case brief

AI extract

What is this about?

The High Court of Karnataka quashed criminal proceedings under the Prevention of Corruption Act against petitioners who were former Members of Legislative Assembly. The court held that no sanction was required for prosecuting the former MLA and found no prima facie case as the allegations related to a Society property, not personal benefit.

What did the court decide?

The proceedings as against the petitioners in P.C.No.1/2011 stand quashed under Articles 226 and 227 of the Constitution of India.

Manjunath Nehru Olekar S/O Nehru C Olekar Vs Erappa M Lamani… — Corruption | Karnataka HC (2013)

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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DATED THIS THE 5^TH DAY OF SEPTEMBER, 2013

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BEFORE

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THE HONOURABLE MR.JUSTICE ANAND BYRAREDDY

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WRIT PETITION Nos.76325/2013 AND 76353/2013 (GM-RES)

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C/W

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WRIT PETITION NoS.76316/2013 AND 76317/2013 IN W.P.Nos.76325/2013 AND 76353/2013

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BETWEEN:

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Sri.Manjunath Nehru Olekar, S/o Nehru C.Olekar, Age: 23 years, R/o Shidenur, Tq.Byadagi, Dist: Haveri.

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Smt.Laxmi W/o Prabhu Olekar, D/o Nehru C.Olekar, Age: 20 years, R/o Shidenur, Tq.Byadagi, Dist: Haveri.

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…PETITIONERS

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(By Shri.Srinand A.Pachhapure, Advocate)

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AND:

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Sri.Erappa M.Lamani, S/o Mangalappa, Age: 43 years, R/o Guttal Thanda, Tq. and Dist: Haveri.

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…RESPONDENT

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(By Shri.K.L.Patil, Advocate)

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These petitions are filed under Articles 226 and 227 of the Constitution of India praying to quash Annexure-F dated 04.02.2013 passed by the learned Sessions Judge, Haveri in P.C.No.1/2011 of issuing process in so far as it relates to the petitioners are concerned and etc.

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IN W.P.No.76316/2013

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BETWEEN:

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Sri.Nehru C.Olekar, S/o Chennabasappa, Age: 53 years, Occ: Agriculturist and Ex-Member of Legislative Assembly of Haveri Assembly Constitutency, R/o Haveri, Dist: Haveri.

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…PETITIONER

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(By Shri.F.V.Patil, Advocate)

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AND:

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Sri.Erappa M.Lamani, S/o Mangalappa, Age: 43 years, R/o Guttal Thanda, Tq. and Dist: Haveri.

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…RESPONDENT

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(By Shri.K.L.Patil, Advocate)

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This petition is filed under Articles 226 and 227 of the Constitution of India praying to quash Annexure-F dated 04.02.2013 passed by the learned Sessions Judge, Haveri in P.C.No.1/2011 of issuing process in so far as it relates to the petitioners are concerned and etc.

IN W.P.No.76317/2013

BETWEEN:

Girish Thuppad, Age: 35 years, Occ: Business and Chairman of Haveri Urban Development Authority, Haveri, Dist: Haveri.

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…PETITIONER

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(By Shri.F.V.Patil, Advocate)

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AND:

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Sri.Erappa M.Lamani, S/o Mangalappa, Age: 43 years, R/o Guttal Thanda, Tq. and Dist: Haveri.

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…RESPONDENT

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(By Shri.K.L.Patil, Advocate)

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These petitions coming on for final hearing this day, the Court made the following:

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O R D E R

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Heard the learned counsel Shri.F.V.Patil for the petitioners and

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the learned counsel Shri.K.L.Patil for the respondents.

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These petitions are heard and disposed of together, as

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they arise out of the same proceedings.

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W.P.No.76316/2013 is filed by accused No.1, whereas

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the connected petition W.P.Nos.76317/2013, is filed by accused No.4, and the petitions in W.P.No.76325/2012 and W.P.No.76353/2013 are filed by accused Nos.2 and 5 respectively. Accused No.1 is said to be the father of accused No.2 and accused No.5 is the daughter of accused No.1 and accused No.4 is the Chairman of Haveri Urban Development Authority (hereinafter referred to as ‘HUDA’, for brevity).

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The brief facts of the case are as follows:

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The petitioner, Nehru Olekar, is an agriculturist by profession

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and he belongs to a Scheduled Caste. The Haveri Assembly Constituency of which, he is a resident, is reserved for a Scheduled Caste member. The petitioner-Olekar contested the Assembly elections held in the year 2008, from Haveri Constituency and was elected on a Bharatiya Janata Party ticket. It is stated that the respondent herein, in all these petitions, is also a person belonging to

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a Scheduled Caste and belongs to the Congress (I) Party. In the elections to the Zilla Panchayat held in the year 2010, the respondent is said to have contested from the Guttal Zilla Panchayat on a Congress Party ticket and he was defeated in the said election. According to the petitioner, it was the respondent’s belief that, it was the petitioner-Olekar who was instrumental for his defeat and therefore, carried a grudge against the petitioner and his family. The present petition was filed at a point of time, when the elections to the State Assembly were due in May-2013, and the rivalry between the petitioners’ family and the respondent was at its height, on account of the torrid election campaigns that were on. The complaint was timed to coincide with the election campaign and accordingly, a complaint was lodged against the present petitioner alleging offences punishable under Sections 409, 420, 465 of the Indian Penal Code, 1860 (hereinafter referred to as 'I.P.C.', for brevity) read with Section 13(1)(d) of Prevention of Corruption Act, 1988 (hereinafter referred to as the ‘P.C.Act’, for brevity). The Lokayuktha Police are said to have investigated the matter and had found that there was no case

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made out against the petitioner and had submitted a ‘B’ final report. As they did not find any prima facie case against the petitioner and his family. But, however, did discover that there were some irregularities in the allotment of a site bearing No.95, in favour of the Smt.Rama Bai Ambedkar Education Society and the B.R.Ambedkar Education Society, and a charge sheet came to be filed only as against the Commissioner, HUDA and in respect of others, the police had filed a ‘B’ final report. While submitting the ‘B’ final report, the police had taken into account a resolution passed by the HUDA to allot plot No.95 found in R.S.Nos.22/1AJ7 and 22/1J8 to the extent of 19.5 guntas situated at Ijari, Lakmapur, which were reserved as civic amenity sites and allotted to the B.R.Ambedkar Education Society. Since the B.R.Ambedkar Education Society did not evince any interest in the allotment, by making necessary deposits of the lease amount, and since they had also made a representation that they were not willing to avail of the allotment and that it could be allotted to the Smt.Rama Bai Ambedkar Education Society. It further transpires that, in the meeting held for the purpose of such re-allotment, the

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same was confirmed. Though Nehru Olekar was a member of the HUDA, he had not participated at the said meeting, while a decision was taken to re-allot the same in favour of the Society. Since, there was only one applicant seeking such re-allotment and there were no objections or other claims, the same had been confirmed. However, the case having been registered for an offence punishable under Section 13(1)(d) of the P.C.Act, the petitioners seek to question the action on several grounds, in the present petitions.

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The learned counsel Shri.F.V.Patil would submit that the petitioner-Nehru Olekar was a Member of the Legislative Assembly as on the date of the complaint, therefore, the Court could not have acted on the complaint or taken notice of it, without there being a prior sanction under Section 19 of the P.C.Act. In this regard, the learned counsel seeks to place reliance on several authorities. Secondly, it is contended that the allotment made even if it is found to be irregular and in favour of a Society, in the eye of law, an allotment made to a registered Society, registered under the Karnataka Societies Registration Act, 1960 (hereinafter referred to as

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the ‘Act’, for brevity), the property would vest with the Society and not in any individual member comprising the Managing Committee or other managing body. The petitioners being part of the managing body of the said Society, by itself would not raise a presumption that the allotment has been made in favour of any individual member of the Management. Therefore, the entire allegations in the complaint even if accepted, would not make out any case of an irregular allotment in favour of the petitioner or his family members. The family members of the petitioner being shown as representing the Society, by itself does not vest any such allotment made, in their favour. In this regard, the counsel seeks to draw attention to Sections 14 and 23 of the Act. The said Sections are extracted hereunder for ready reference:

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“14. Property of society how vested.- The property, movable and immovable, belonging to a society registered under this Act, if not, vested in trustees, shall be deemed to be vested, for the time being in the governing body of such society, and in all proceedings, civil and criminal, the property may be described as the

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property of the governing body of such society by their proper title.

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23. Upon dissolution, no member to receive profit.- (1) If upon the dissolution of any society registered under this Act, there shall remain, after the satisfaction of all its debts and liabilities, any property whatsoever, the same shall not be paid to or distributed among the members of the said society or any of them, but shall be given to some other society, to be determined by the votes of not less than three-fifths of the members present personally or where proxies are allowed, by proxy at the time of the dissolution, or in default thereof, by the principal civil court of original jurisdiction of the district.

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(2) Notwithstanding anything contained in sub-section (1), it shall be lawful for the members of any society dissolved, to determine by a majority of the votes of the members present personally or where proxies are allowed, by proxy, at the time of dissolution of such society that any property whatsoever remaining after the satisfaction of all its debts and liabilities shall be given to the State Government to be utilised for any of the purposes referred to in section 3.”

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6. The learned counsel would submit that the proceedings

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as against the petitioners would have to be quashed in the light of the circumstance that even if all the allegations in the complaint are accepted, no case would be made out against the petitioners. The further plea that the petitioner-Nehru Olekar was instrumental in ensuring that the allotment was made to the Society for the benefit of his family members, also would not be tenable, as the record would indicate that, though Nehru Olekar was a member of the HUDA, he had not participated at the meeting, when the said allotment was made and hence, the question of the order of allotment being vitiated would also not be tenable. In any event, the authority acts as a body consisting of several members including the present Nehru Olekar, and it could not be attributed to any personal action on his part, when

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it was a collective decision of the body. Therefore, there is no substance in the complaint whatsoever and hence, seeks that the petitions be allowed.

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While on the other hand, the learned counsel Shri.K.L.Patil, would contend that, insofar as the first contention that

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the prosecution was vitiated on account of there being no sanction obtained for prosecution is not tenable, Section 19 of the Act contemplates that, no Court shall take cognizance of the offence in the absence of a sanction. Even if there was no sanction order and cognizance was taken, the same shall not vitiate the proceedings, unless there had occasioned a failure of justice. This is evident from a plain reading of Section 19 of the Act. Therefore, the contention that the proceedings be quashed on account of there being no sanction order preceding the prosecution is not tenable. He would further contend that, though the petitioner-Nehru Olekar was an MLA as on the date of the complaint, since he demitted office subsequently and was no longer an MLA, as on date, there is no need for any such sanction being obtained and the proceedings therefore, would not stand vitiated on that account. Further, insofar as the claim that the petitioner and his family members though are members of the Society and of the Managing Committee of the Society, the allotment having been made in favour of the Society is certainly at the instance and influence wielded by Nehru Olekar and is certainly for the benefit of

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his family, though in name it has been shown, that it is for the benefit of the Society. The Society is only a front to hold the property by Nehru Olekar and his family, that there are other members of the Managing Committee is purely incidental. In fact the endeavour of the prosecution in establishing a case for an offence punishable under the provisions of the P.C.Act is this. The same cannot be foreclosed on the basis of arguments that are canvassed in these proceedings. Since, there is a serious question of fact to be tried, the same can only be subject matter of adjudication at the trial and cannot be decided in writ proceedings, summarily. Hence, he would submit that the questions have to be adjudicated at the trial and since the petitioners are armed with their right to defence, there is no prejudice caused, if the petitions are dismissed. Therefore, he would submit that the present petitions are an abuse of process of the Court, when the complaint has been lodged and proceedings have been taken in accordance with law, the petitioners would necessarily have to face the trial and cannot take recourse to the present petitions, as a

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shortcut to wriggle out of the situation and therefore, seeks dismissal of the petitions.

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Insofar as the contention that the prosecution is bad on

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account of the prosecution not being preceded by a sanction is concerned, it is not in dispute that Nehru Olekar is no longer a public servant. Therefore, as on date, the question whether the sanction is necessary to prosecute the petitioner would have to be answered in the negative. The fact that, he was a public servant as on the date of complaint is now redundant. Therefore, the question whether or not there was an order of sanction preceding the prosecution is not a relevant question any longer. But, however, insofar as the case of the petitioner that, notwithstanding any irregularity that may be apparent in the allotment or re-allotment of the site in favour of the Society, in which they are members or that the Chairman, HUDA was instrumental, who is the petitioner in W.P.No.76317/2013, and that there has been an irregular allotment is concerned, it would necessarily have to be shown that the petitioners have in any manner benefited from the same. In the eye of law, as rightly pointed out by

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Shri.F.V.Patil, the allotment having been made in favour of the Society, which is a registered body, it cannot be said that the property would vest in any one member of the family of Nehru Olekar or Nehru Olekar himself. The allegation that it is certainly in their favour and for their benefit, though made in the name of the Society, which is only a front, cannot be an argument, which could be accepted in the eye of law. Therefore, strictly speaking, there is no allotment made in favor of any individual and it is in favour of an entity of which, no doubt the petitioners are members. That by itself would not create any illegality. Even otherwise, if it is demonstrated that the entire procedure followed in making the re-allotment was irregular and illegal, it is open for the complainant or other effected persons who have questioned the same in appropriate proceedings, when there is a remedy provided to question any such illegal or irregular allotment. Therefore, taking recourse to the proceedings under the P.C.Act and alleging offences punishable under the said Act was out of place and in the admitted circumstances and on a plain reading of the complaint, it cannot be said that, prima facie, any

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offence punishable under the provisions of the Act being committed by any of these petitioners, is apparent. Hence, the proceedings on the presumption that the Society was used as a front to obtain properties personally and therefore, they had committed an offence punishable under the P.C.Act, and since other petitioners are associated with the Nehru Olekar, who was a public servant, would also be capable of being prosecuted under the provisions of the P.C.Act is not a contention that can be accepted, on the face of it.

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Accordingly, these petitions are allowed. The proceedings as against these petitioners in P.C.No.1/2011 shall stand quashed.

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Sd/JUDGE

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MBS/-

Manjunath Nehru Olekar S/O Nehru C Olekar v. Erappa M Lamani S/O Mangalappa

Case brief

What is this about?

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Manjunath Nehru Olekar S/O Nehru C Olekar v. Erappa M Lamani S/O Mangalappa

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