Allowed

Sri Muralidhar v. State of Karnataka

Karnataka HC19 Jan 2017CRL.P/6993/2016

Case brief

AI extract

What is this about?

Criminal proceedings concerning allotment of MUDA sites to its employees were quashed. The court held that the sites did not fall within the KUDA Rules’ definition of stray sites and that the allotment was not tainted with illegality. The petition was allowed.

What did the court decide?

The impugned annexures comprising the complaint, FIRs, charge sheet and criminal proceedings were quashed.

Sri Muralidhar Vs State of Karnataka — Municipal and Town Planning | Karnataka HC (2017)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 19^TH DAY OF JANUARY 2017

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BEFORE

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THE HONOURABLE MR. JUSTICE ANAND BYRAREDDY

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CRIMINAL PETITION No.6993 OF 2016

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BETWEEN:

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Sri. Muralidhar, Aged about 52 years, Son of Sri. Munivenkataramaiah, Residing at: 1^st Floor, No.297/F, 5^th Cross, HMT Layout, Matthikere, Bangalore – 560 054.

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Working as Assistant Director of Town and Country Planning, Department of Town and Country Planning, Tumkur – 572 101.

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…PETITIONER

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(By Shri Uday Holla, Senior Advocate for Shri Vivek Holla, Advocate )

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AND:

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State of Karnataka, Represented by

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Mandya West Police, Vidya Nagar, NH-17, Bangalore Mysore Road, Mandya – 571 401.

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State of Karnataka, Represented by CBI/ACB/BLR, No.36, Bellary Road, Ganga Nagar, Bangalore – 560 032.

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Mr. K. Mathai, Aged about 57 years, Son of Mr. Kuriakose, Under Secretary, Department of Personal and Administrative Relations, M.S.Building, Dr. Ambedkar Veedhi Road, Bangalore – 560 001.

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…RESPONDENTS

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(By Shri B. Visweswaraiah, Government Pleader for Respondent No.1;

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Shri P. Prasanna Kumar, Special Public Prosecutor, for Respondent No.2)

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This Criminal Petition is filed under Section 482 code of Criminal Procedure, 1973, praying to quash the complaint dated 31.10.2013 lodged by the third respondent (Annexure-A) and the FIR dated 1.11.2013 in Crime No.370/2013 (Annexure-B) before the Mandya West Police, Mandya and the FIR dated 23.12.2014 in Crime No.RC.21(A)/2014 registered by the CBI,ACB, Bangalore (Annexure-C) and the charge sheet bearing No.30/CBI/ACB/BLR/2015 dated 31.12.2015 filed by

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the CBI, ACM, Bangalore, the second respondent herein (Annexure-D) and proceedings in R.C.No.21(A) /2014/CBI/ACB/BLR pending on the file of the Court of the XLVI Additional City Civil and Sessions Judge, and Principal Special Judge for CBI Cases at Bangalore (CCH-47) (Annexure-e).

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This petition having been heard and reserved on 6.1.2017 and coming on for pronouncement of orders this day, the Court delivered the following:-

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ORDER

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The facts leading up to this petition are stated to be as follows.

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The petitioner was said to be working as the Assistant Director of Town and Country Planning, as on the date of the petition. Before that he had served in various capacities, from the date of his appointment in the year 2003. In the year 2009, he was said to have been deputed to the Mandya Urban Development Authority (Hereinafter referred to as the ‘MUDA’, for brevity) as a Town Planner and that he had served in that capacity till the year 2012.

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It transpires that during the year 2002, MUDA had formed a residential layout, namely, "Vivekananda Nagar Layout", in land bearing Survey no.507 of Mandya and had formed 2354 residential sites with an intention to allot the same to the general public. It is stated of the said number, 2051 sites had been allotted through a lottery system by 23-3-2002. Of the said sites, about 416 allottees are said to have rejected the allotment as the same was situated on loose soil and unsuitable for construction. A further 93 sites which were allotted were said to have been cancelled as the allottees had failed to pay the prescribed amount.

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It is stated that MUDA had then called upon unsuccessful applicants, who were keen to acquire sites, to avail the opportunity and accordingly 314 allotments were said to have been made out of the 416 sites available. In so far as the remaining 107 sites are concerned, it appears there were no 'takers' and the same had remained with MUDA even after 8 years of formation of the said sites. As MUDA was said to be

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facing a severe financial crunch and in order to raise funds, it had decided to allot the sites to its own employees who were eligible in accordance with the Karnataka Urban Development Authorities (Allotment of sites) Rules, 1991. (Hereinafter referred to as the ‘KUDA Rules,’ for brevity). Accordingly, MUDA is said to have sought permission to do so through the Urban Development Department, Government of Karnataka, by a letter dated 17-3-2009. The State Government had in response, by a letter dated 2-6-2009, is said to have informed MUDA that the KUDA Rules itself empowered the concerned urban development authorities to reserve a certain portion of the sites formed by them, for allotment to deserving applicants in terms of the said Rules.

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It is pursuant to such intimation, that MUDA had at its meeting dated 8-2-2009, resolved to allot the said 107 sites to its own officers and employees. Applications were said to have been invited from its employees and 13 employees, including the present petitioner had submitted applications. And a

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residential site bearing no.246, measuring 30 feet by 40 feet is said to have been allotted to the petitioner. He is said to have been put in possession of the same as per certificate dated 3-32010. The petitioner is said to have paid the sale consideration after obtaining a bank loan, with the permission of MUDA, and a sale deed dated 8-3-2010 was said to have been registered in his favour.

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However, in the year 2013, the petitioner learnt that a criminal case had been lodged alleging irregularity in the allotment of sites made in favour of the employees of MUDA, including the one in favour of the petitioner. And that the same had been referred to the Central Bureau of Investigation (CBI) by the Government of Karnataka. However, the petitioner had remained clueless of the alleged FIR said to have been lodged against the erstwhile Commissioner of MUDA, during whose tenure the allotment had been made in favour of the petitioner.

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The CBI is then said to have filed another FIR dated 23-12-2014 naming the erstwhile Commissioner and other

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officials of MUDA, including the petitioner as the accused and had thereafter filed a charge sheet, before the Special Judge for CBI Cases, Bangalore, alleging offences punishable under Sections 406, 409, and 420 read with Section 120 B of the IPC read with Sections 13(2) read with Section 13(1) (c) & (d) of the Prevention of Corruption Act, 1988. It is those proceedings which are under challenge in this petition.

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The learned Senior Advocate, Shri Udaya Holla, appearing for the counsel for the petitioner would contend that the criminal proceedings are wholly misconceived. The allotment of the site in favour of the petitioner was not made in secrecy, it was allotted in accordance with Rule 4 of the KUDA Rules and after obtaining permission from the Government. The allegation of conspiracy and criminal breach of trust or criminal misappropriation are hence untenable and

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mischievous.

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That the criminal prosecution is also vitiated for want of

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prior sanction to prosecute the petitioner and other public servants.

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The respondent - CBI has entered appearance through counsel and has filed statement of objections to contend that the present petition is misconceived and premature since the court below is yet to take cognizance of the offences alleged.

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It is contended that the first accused in the above case was the Commissioner, Mandya Urban Development Authority. During the relevant time, the accused No.2 was the President of MUDA, accused No.3 was the Municipal Councillor, accused Nos.4, 5 and 6 were the Members of Legislative Assembly, accused No.7 was the Assistant Executive Engineer, MUDA, accused No.8/petitioner herein was Town Planner at MUDA, accused No.9 was the Group ‘D’ employee in the office of Commissioner, MUDA, and accused No.10 was computer operator in the office of the Commissioner, MUDA, accused

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No.11 was working as Assistant on contract basis at MUDA, accused No.12 was working as waterman on contract basis at MUDA, accused No.13 was the Chairman of MUDA, accused No.14 was Assistant Engineer at MUDA, accused No.15 was working as Typist at MUDA and the remaining accused are all private individuals who have conspired with the other accused persons in the matter of illegal allotment of sites in their favour.

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It is contended that on the basis of the first information by the third respondent/Commissioner, MUDA on 31.10.2013, Mandya West Police, Mandya had registered a case in Crime No.370/2013 against several accused persons for having committed various offences under the provisions of Indian Penal Code, 1860 and Prevention of Corruption Act, 1988. During the pendency of the said investigation, the State Government issued notification under the provisions of Delhi Special Police Establishment Act, 1946 and the case was made over to the second respondent/CBI. Pursuant thereto, second respondent/CBI registered the case in R.C.No.21(A)/2014 and

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took up investigation, and on conclusion of investigation, charge sheet has been laid in all against 24 accused persons for the offence under Sections 409 and 420 read with Section 120B of IPC and Section 13(1)(c) and (d) read with Section 13(2) of Prevention of Corruption Act.

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It is the case of the prosecution that the accused Nos.1 to 15 while discharging their duties in various capacities in relation to MUDA entered into criminal conspiracy themselves and also accused Nos.16 to 24 in the matter of allotment of stray sites for themselves by imposing breach of trust, and by cheating and thus derived pecuniary advantage for themselves and for the others.

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It is contended that the investigation revealed that the MUDA is a body corporate constituted in 1988, under the KUDA Act. The objects of the Authority as per the Act, shall be planning and promoting and securing the development of the urban area and for these purposes, the Authority shall have the power to acquire, hold, manage and dispose of movable and

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immovable property whether within or outside the urban area under its jurisdiction to carry out constructions, engineering and other operations and generally to do all things necessary or expedient for the purpose of such development and for purposes incidental thereto. The MUDA was following the KUDA Act and KUDA Rules for site allotment. The authority consisted of the Chairman, Town Planner, Executive Engineer as the whole time members appointed by the Government. There are also other part time members, like Members of Karnataka Legislative Assembly or Legislative Council representing a part or the whole urban area, Representative from Karnataka Urban Water Supply and Drainage Board, Representative from Karnataka Electricity Board, Commissioner of Corporation or Municipal Commissioner or Chief Officer of the Municipal Council, Deputy Commissioner of the District, Elected member of the Local Authority, Commissioner of Police or the Superintendent of Police of the District, Elected member of the Local Authority concerned, an officer of the Karnataka Health

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and Family Welfare Department, a person having experience in Architecture and the Commissioner of the authority. As per the KUDA Act, the meeting of the authority shall be convened by the Chairman having attendance of at least half of the members. The Chairman and Commissioner of the Urban Development Authority (UDA) play an important role in the function of the authority. Chairman, who is the whole time member heads the authority and holds office for a period of three years. Chairman is responsible for convening the meetings of authority under Section 2(g) of KUDA Act.

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It is contended that the MUDA, Mandya formed a Layout under the name ‘Vivekananda Nagar Layout’ after obtaining the necessary conversion order and developed 2714 sites of different dimensions, of which there were 2354 numbers of centre sites and 360 numbers of corner sites. The layout plan was approved by the Government of Karnataka vide order No. Na.a.E./477/MIB/97 dated 12.6.1998 with percentage for allotment of site under various categories such as SC, ST, OBC,

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handicapped, State/Central Government Employees etc. Applications were called from the general public on 18.1.1999 for various dimensions and based on the 4549 applications received, 2354 sites were modified as 2295 sites on 2.9.2000, of which, 1507 sites were physically separated and 788 sites were yet to be formed. These 2295 sites were not bifurcated category-wise and were allotted. However, out of the above, 107 sites remained un-allotted.

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It is contended that the investigations revealed that, a meeting of MUDA was convened on 8.9.2009, in which, of 14 members, 9 members had attended the meeting and decisions were taken on various subjects. One of the decisions was taken to generate funds for the project to finalise the left over work like underground drainage work and drinking water facility at Vivekananda Nagar Extension, which would cost about Rs.425 lakhs and Rs.400 lakhs, respectively. It was decided to generate fund by way of the allotment of 107 numbers of the middle sites (stray sites) and auction of the corner and

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commercial sites through a Sub-Committee, which was agreed upon. The Sub-Registrar had quoted Rs.200/- per sq.ft. for the corner and commercial sites and Rs.130/- per sq. ft. for the middle sites. However, MUDA re-examined the same and fixed Rs.300/- per sq.ft for corner and commercial sites and Rs.130/- for the middle sites.

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It is contended that one more illegal decision was taken by the accused - members of the MUDA on 8.9.2009 and in which they had allotted sites to Smt. Vidhya Nagendra (Accused-2), Shri M.J.Chikkanna (Accused -3), Shri M. Srinivas (Accused -4), Shri C.S.Puttaraju (Accused -5), Shri A.B.Ramesh (Accused -6), the members and Shri K.M.Nagaraj (Accused -7), Shri Muralidhar (Accused -8)/petitioner herein, Shri S. Sathish (Accused -9), Shri Venkataiah (Accused-10), Shri A.S.Manjunath (Accused -11), Shri D. Nagesh (Accused - 12), Shri P. Lingaraju (Accused -13), Shri Kalegowda (Accused -14), Shri A.G.Mahalingegowda (Accused -15), the employees of MUDA, Mandya.

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It is contended that the definition of stray sites as per

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Rule 2(J) of KUDA Rules is that the sites, which are the sites already allotted and then cancelled, surrendered or any additional sites added beyond the notified sites. MUDA, Mandya was having 107 vacant sites as on 8.9.2009, which were already allotted in the year 2002-03 and subsequently cancelled or surrendered. As per Rule 6 of THE KUDA Rules, the stray sites have to be disposed as per the instructions of the Government issued from time to time. As per the circular No.UDA 291 DAD 86 dated 24.11.2000, 75% of the stray sites wee to be auctioned. The remaining 25% are also to be specifically allotted to specific groups, such as persons who have excelled in the fields of Art, Sports, Science and Technology, Ex-Servicemen etc. However, the then members and the then Commissioner, MUDA have violated the circular and have allotted 107 sites instead of auctioning the same.

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It is contended that it is also revealed that the accused members of MUDA had also allotted sites to MUDA officials

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and the members of MUDA, including the President and member, Members of Legislative Assembly, through its meeting held on 8.9.2009. As per para 4 of Section 8 of KUDA Act, majority votes were obtained for this decision. It is revealed that 107 MUDA sites were vacant in 2009 and there were no buyers even in schemes like “One time Payment” and “Nimma Ayke (Your Choice)” in 2006. Investigation has revealed that the applications of the officials of MUDA, except two, were submitted after the meeting held on 8.9.2009. However, the individual files of MUDA officials show that prior to 8.9.2009, they had submitted a letter requesting for MUDA sites, instead of submitting application forms. It is revealed that during the said meeting, specific sites were allotted whereas the site allotment is to be made on receipt of application. Investigation reveals that the decision for allotting particular sites to its employees and members in the MUDA meeting held on 8.9.2009 was in violation of the KUDA Act, as it is clearly mentioned in a clarification received by THE

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Commissioner, MUDA vide letter No.Mum.Na.Pra/Ni/032003-04 dated 17.3.2009, from Urban Development Department, Government of Karnataka, that an allotment to the employees and members of MUDA can be made only under the existing guidelines of KUDA Act and KUDA Rules. The

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allotment made to the employees and members of MUDA in the above meeting dated 8.9.2009, was in gross violation of the above Act and Rules as there was no application received form the members and employees as on that particular date and the

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members attending the meeting went to the extent of even allotting the site numbers to the members and employees. Moreover, 107 sites that were left over from the initial allotment would fall under the stray sites and as per the Government Circular No.UDA 291 DAD 86 dated 24.11.2000, the stray sites were supposed to be disposed of only by a predetermined method of auction and allotment as specified in the order, which was completely ignored.

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It is contended that the above facts reveal that the meeting convened on 8.9.2009 was as per the provisions under Section 8 of KUDA Act. Decisions regarding pending works were taken as per Section 15 and Section 8(4) of the KUDA Act and approval was taken as per Clause No.1(b). Investigation has revealed that the decision taken during the MUDA meeting held on 8.9.2009, was decided earlier itself and meeting was convened only to formalize the decisions.

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It is contended that investigations further revealed that, following meeting of 8.9.2009, the MUDA decided to publish a notification to the effect that, 107 sites at Vivekananda Nagar, Mandya are available for allotment to eligible members of the public. As per the KUDA Act, and KUDA Rules, the Commissioner is the authority to execute the decision taken by the authority. As per the Section 17(3) of KUDA Act, the authority shall also cause a copy of the said notification to be published in two consecutive issues of local newspapers having wide circulation in the area. Further, as per the KUDA Rules, ,

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Rule 3 thereof, the notification in respect of site allotment is to be not only put on the notice board of the UDA, but also to be published in local newspapers of wide circulation, both in English and Kannada.

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It is contended that Shri D.Upendra Nayak, the then Commissioner, Mandya had advertised the MUDA site allotment plan in the newspapers and also in Notice Boards as per the decision taken by the MUDA meeting held on 8.9.2009. The advertisement was supposed to be published in leading Kannada and English newspapers of the area. However, it was advertised only in local newspapers, like ‘Suddi Sangharsha’ on 22.9.2009 and ‘Star of Mandya’ on 18.9.2009, there by violating the guidelines of the Karnataka Urban Development Authority. Investigation has also revealed that these two above newspapers are not subscribed by any household and are only printed to the extent of 700 to 1000 copies per day and distributed to various offices on complementary basis. This

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clearly proves that, Shri Upendra Nayak (Accused -1), Commissioner, MUDA in connivance with the Chairman and other members have suppressed the notification from the eyes of the general public. On further verification of MUDA records prior to 2009, it was revealed that earlier publications of the MUDA were made in local and State level newspapers. Further it is also seen that the earlier publications were all routed through the District Information Officer, who would get it published in prominent newspapers based on the Government Order dated 16.12.2003 issued by the Department of Information, Tourism and Youth Services, wherein it is clearly mentioned that for any property above the value of Rs.10 lakhs, the publication should be made in prominent State level newspapers in English and Kannada. It is seen in this case that, the Commissioner, MUDA in connivance with the Chairman and other members has conveniently violated the above guidelines thereby suppressing the advertisement from the general public.

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It is contended that the investigation also revealed that

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the demand was not made to test by properly informing the public about the notification and also not conducting the auction as mandated in the Act and Rules. Further, investigation has also revealed that in the year 2007, when MUDA conducted a demand survey for layouts to be formed in different areas within Mandya, there were nearly 29000 applications received. Though these applications were for different layouts planned in Mandya, it can easily be presumed that there was sufficient demand for sites in the city. The only way to test this presumption was to sufficiently advertise the notification, which was not done. In addition, the very fact that important persons, such as the Members of the MUDA, its employees, MLAs and their relatives were willing to purchase these sites in multiple numbers by misrepresentation, proves that there was a demand for the MUDA sites. Persons described above are generally more well to do and can afford sites at the best of the localities in the local area when compared

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to the general public. An open call was made to the public with regard to inviting complaints, if any, in relation to the said notification that was suppressed from the knowledge of the public. Accordingly, several complaints were received, which have clearly stated that the notification was not advertised in regular newspapers and that the notification was not to their knowledge. It was also stated that had they been in the knowledge of the notification, they would have applied for the sites. Further, the only way that the demand for the sites could have been tested was by proper advertising of the notification and then conducting an auction of the sites as prescribed by KUDA Act and Rules. However, in this case, both have been grossly violated.

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It is contended that investigations revealed that, subsequent to the advertisement as made above, the MUDA had received 119 applications. Of these 119 applications, 17 applications belonged to the members and employees of the MUDA, who were already allotted sites with site numbers in

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the meeting dated 8.9.2009. Further, it is also seen that of the other 102 applications, 9 applications clearly belonged to the kith and kin and friends of the members and employees of MUDA. The remaining applications were cleared for allotment of sites. Further, as per the public notice issued regarding allotment of 107 numbers of MUDA sites on 17.9.2010, the last date for receipt of applications was at 5.30 PM on 30.11.2009. However, MUDA had scrutinized 90 applications received on or before 26.11.2009 and allotted sites to 83 applicants on receipt of 10% of the site value as initial payment, before the last day i.e., 30.11.2009 and the remaining applicants were allotted sites later. The allotment of sites to the 83 applicants before 30.11.2009, is in clear violation of the procedure.

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Further, on the basis of the request of the employees and members of MUDA for allotment of sites submitted to the Commissioner/Chairman, the resolution dated 8.9.2009 was passed which is also mentioned in the individual allotment files. However, the Under Secretary, Urban Development

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Department (UDD), Karnataka Government, had clearly clarified that the Commissioner is empowered to allot sites to its employees as per the existing guidelines under the KUDA Act and KUDA Rules. This clarification was received by the Commissioner, MUDA in March 2009 and he was very much aware of this clarification at the time of the meeting dated 8.9.2009. Despite being in the know of the above fact, the Commissioner in connivance with the members and employees of MUDA proceeded to allot sites to themselves with specific numbers even without an application being submitted. Moreover, the above allotment was in clear violation of the Government Circular in respect of disposal of stray sites as mandated in Government Circular No.UDD 291 dated 24.11.2000 of UDD, Government of Karnataka. Further, it is revealed that the committee has not taken prior permission from the Government of Karnataka to allot sites to its members and officials through the resolution dated 8.9.2009.

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It is contended that the investigation further revealed that the petitioner/Accused -8, Son of Munivenkataramaiah (late) is a resident of Dharma Nilaya, Kallahalli, 2^nd Cross, Mandya. He was working as Town Planner at MUDA, Mandya during the period from 2008 to 2012. At present, he is working as Assistant Director, Town and Country Planning, Tumkur. The petitioner herein conspired with Accused-1 and other members of MUDA and got allotted a MUDA site through the MUDA meeting held on 8.9.2009 knowing very well that stray sites are to be auctioned and that he is not eligible to get the site allotted to himself. The petitioner has also failed to obtain the permission of the Government, as a Government Servant, before registering the site in his name.

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It is contended that the above facts would clearly make out that the accused, including the present petitioner/accused No.8, in conspiracy with each other in the matter of allotment of stray sites, had entered into criminal conspiracy with an intention to cheat the Government and the accused, being public

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servants, entrusted with the dominion over the property of MUDA, in their capacity as public servants have committed the act of criminal breach of trust, and in the said process the accused have also committed the offence punishable under the provisions of the Prevention of Corruption Act, 1988.

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It is contended that the contention of the petitioner that the site has been allotted in favour of the petitioner in accordance with Rule 4 of the KUDA Rules and thus the petitioner is entitled for an order at the hands of this Court is unsustainable, as the sites in question are stray sites and that their allotment is not governed under Rule 4 of the KUDA Rules. However it is governed under Rule 2(j) of Rules, and also by Circular dated 24.11.2000 issued by the State, which has been stated supra.

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The petitioner has further contended that the Board of MUDA comprising of Government officials like Deputy Commissioner of the District, Superintendent of Police, MLAs, MLCs, President of MUDA and other officials had held a

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meeting and that they had resolved to allot sites which is the matter of investigation by the second respondent/CBI, may not support the case of the prosecution in as much as several public servants were, in fact, on the Board of MUDA, have also been arrayed as accused. It is contended that the said officials have also misused the official position held by them and caused wrongful loss to the Government and consequently wrongful gain to themselves and others, without there being any public interest.

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The contention of the petitioner that he has been allotted only a site measuring 30 x 40 feet and since the allotment is made by the MUDA being the authority, it must be presumed that the Government had knowledge about the petitioner acquiring immovable property etc., is a far-fetched argument in as much as when Rule 23(2) of the Karnataka Civil Services (Conduct), Rules, 1966 imposes a mandate on the Government servant that he shall obtain prior permission of the Government before acquiring immovable property. In that view of the

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matter, the contention that MUDA had prior knowledge, and there was no duty caste upon the petitioner herein to disclose about acquiring immovable property, cannot be accepted.

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The petitioner contends that he had applied for allotment of site pursuant to public notice issued by MUDA and that allotment is in accordance with law etc., is not correct. It is contended that the investigations conducted by the second respondent/CBI has clearly established that the accused in collusion with each other have not published advertisement in any leading Kannada and English Newspaper as per the mandate and that advertisement has been published in a local newspaper which do not have circulation even in the locality. This act on the part of the accused is a part of large scale conspiracy to avoid the public from having knowledge about the MUDA allotting stray sites.

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The contention of the petitioner that he has paid entire sale consideration to MUDA and that he cannot be saddled with criminal liability is again liable to be rejected. The prosecution

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has made out a specific case that the accused persons in collusion with each other, in order to cheat the Government and public at large, and have converted the property in dominion which was entrusted to public servants to their own use in violation of the provisions of law i.e., in violation of the provisions of KUDA Rules and thus have committed the offence.

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It is contended that in order to make out a prima-facie case under Section 13(1)(c) and (d) read with Section 13(2) of Prevention of Corruption Act,1988, what is to be established prima-facie by the prosecution is that the accused by their act of criminal misconduct had obtained pecuniary advantage to themselves or for any other person. This pecuniary advantage need not be quantified. In the instant case, stray sites which are required to be allotted in accordance with the Rules have been allotted to the accused by themselves in conspiracy with each other, and thus the accused have committed the offence.

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It is thus contended that viewed from any angle, the petition is liable to be rejected.

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By way of reply, Shri Holla would point out that the basic premise on which the complaint has been lodged is that the accused had entered into a criminal conspiracy in engineering allotment of stray sites for themselves. This, it is pointed, is a wrong assumption. Firstly, the theory of conspiracy is baseless as the process of allotment was undertaken only after receiving approval from the State Government. Secondly, the sites involved are not "stray" sites. It is pointed out that at paragraph 7 of the Statement of objections, it is admitted that 107 sites formed in the Vivekananda Nagar Layout were never allotted. If the same were not allotted sites or such sites as are defined to be "stray" sites, according to the KUDA Rules, there is no violation committed of the Rules, as alleged. The respondents have sought to bring the criminal case only on this incorrect basis.

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It is pointed out that the allegation as to the sites in question having been allotted at the guidance value prescribed by the Sub-Registrar does not result in any irregularity. The further fact that the Authority had fixed a higher rate than the guidance value for commercial sites cannot also be construed as illegal or irregular. In any event, the rate paid by the petitioner was much higher than the rate paid by original allottees, who had purchased similar sites in the first instance.

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It is contended that the assertion as to the 107 sites had been allotted earlier and later cancelled in the year 2002-2003, as stated at paragraph 10 of the Statement of objections is incorrect and contrary to what is stated in paragraph 7.

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It is asserted that the allegation as to only letters having been received from two of the allottees instead of the prescribed applications and the said applications later having been received, is a procedural irregularity at best and does not result in any illegality. The said allottees, one of whom was the petitioner had paid the consideration in time.

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Reliance placed on the Government Circular dated 24-11-2000, is not tenable as the said Circular could not have the effect of re-writing the definition of a stray site.

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The emphasis as regards the procedure that was required to be followed in respect of auction of stray sites is wholly irrelevant and inapplicable to the subject sites.

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In the light of these contentions, the point for consideration is whether the site allotted in favour of the petitioner and 12 other employees of the MUDA are to be considered as "stray" sites as defined under the KUDA Rules, for if only the same are treated as such that the alleged violation of the Rules and the irregularity would be apparent. The respondent CBI appears to rely on a Government Circular no.UDD 291 dated 24-11-2000 of the Urban Development Department to contend that the site in question is a stray site and hence could have been allotted only in accordance with the

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guidelines issued by the government and in accordance with the KUDA Rules.

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The KUDA Rules, which are said to have been published only in the Kannada language, with no English translation available, is itself an oddity. The said Rules contains a definition of "stray sites" ("bidi niveshana") to mean a site which had been allotted and subsequently cancelled, or a site surrendered by an allottee, or in a situation where applications having been invited for allottment, a site is subsequently formed on account of a modified layout plan, as being construed as a stray site.

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As rightly pointed out by Shri Holla, the site allotted to the petitioner and also the sites allotted to the other employees of MUDA do not fall under the above category and the entire proceedings have apparently been initiated under this primary misconception.

¶127

Further, the allotment itself cannot be said to be tainted with any illegality, it is neither made surreptitiously or for want

¶128

¶129

of consideration. The allottees including the petitioner have paid the prescribed value, which was seen to be much higher than the value paid by the allottees, who had been originally allotted sites, out of which these had remained without being allotted even 8 years after such formation.

¶130

Therefore, the criminal proceedings initiated, though at the nascent stage, is a costly and futile exercise and patently misconceived.

¶131

The criminal petition is allowed the impugned Annexures to the criminal petition are quashed.

¶132

Sd/-

¶133

JUDGE

¶134

nv*

Sri Muralidhar v. State of Karnataka

Case brief

What is this about?

What did the court decide?

Sri Muralidhar v. State of Karnataka

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

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