Allowed

Sri Nagegowda v. the State of Karnataka

Karnataka HC17 Apr 2023WP/1945/2023

Case brief

AI extract

What is this about?

Writ petition seeking quashment of order refusing sanction for prosecution against a retired Executive Engineer for procurement irregularities during the COVID-19 lockdown. The Court found the State's refusal arbitrary as the parallel Lokayukta proceeding had already closed. Investigation was directed to be conducted.

What did the court decide?

Quashing of impugned order refusing sanction; approval for investigation of Crime No.4 of 2022 accorded by State Government; petition disposed of.

Sri Nagegowda Vs the State of Karnataka — Corruption | Karnataka HC (2023)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 17^TH DAY OF APRIL, 2023

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BEFORE

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THE HON'BLE MR. JUSTICE M. NAGAPRASANNA

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WRIT PETITION No.1945 OF 2023 (GM – RES)

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BETWEEN:

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SRI NAGEGOWDA S/O LATE CHIKKANALE GOWDA AGED ABOUT 55 YEARS R/AT P.B.MANCHANAHALLI VILLAGE SHILANERE HOBLI KRISHNARAJAPET TALUK MANDYA DISTRICT – 571 426.

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... PETITIONER

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(BY SRI VARUN R.R., ADVOCATE)

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AND:

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1 . THE STATE OF KARNATAKA DEPARTMENT OF WATER RESOURCES NO.305 AND 306, 3^RD FLOOR VIKASA SOUDHA AMBEDKAR VEEDHI BENGALURU – 560 001 REPRESENTED BY ITS ADDITIONAL CHIEF SECRETARY.

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2 . THE KARNATAKA LOKAYUKTHA MULTISTORIED BUILDING BENGALURU – 560 001 REPRESENTED BY ITS REGISTRAR.

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3 . SRI K.SRINIVAS S/O MARIGEMPA ALIAS MULLE GOWDA AGED ABOUT 61 YEARS NOW RETIRED EXECUTIVE ENGINEER NO.3, HEMAVATHI EDADANDE NALA DIVISON KRISHNARAJAPETE MANDYA DISTRICT – 571 426.

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... RESPONDENTS

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(BY SRI B.V.KRISHNA, AGA FOR R1; SRI B.B.PATIL, ADVOCATE FOR R2; SRI A.K.VASANTH, ADVOCATE FOR R3; SRI L.M.CHIDANANDAYYA, IMPLEADING APPLICANT)

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THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER BERING NO.JASUME 135 SEEEVI 2020 DATED 03.01.2022 ISSUED BY THE R1 HEREIN (ANNEXURE-A) AS ILLEGAL AND ARBITRARY; DIRECTING THE R1 TO CONSIDER THE SANCTION OF PROSECUTION AGAINST THE R5 HEREIN IN ACCORDANCE WITH LAW.

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THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 13.04.2023, COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT MADE THE FOLLOWING:-

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ORDER

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The petitioner is before this Court seeking quashment of an order dated 03.01.2022 by which approval/sanction for conduct of investigation is refused by the Competent Authority.

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Heard Sri.Varun R.R., learned counsel appearing for petitioner, Sri B.V.Krishna, learned Additional Government Advocate appearing for respondent No.1, Sri B.B.patil, learned counsel appearing for respondent No.2, Sri.A.K.Vasanth, learned counsel appearing for respondent No.3 and Sri.L.M.Chidanandayya, learned counsel appearing for impleading applicant.

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Facts in brief that leads the petitioner to this Court, in the subject petition, as borne out from the pleadings, are as follows:

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The petitioner is the complainant, the complaint is against the 3^rd respondent an Executive Engineer, now retired, on attaining the age of superannuation. The allegations pertain to the period during which the 3^rd respondent was working as Executive Engineer. Floods caused certain damage to four tanks in K.R.Pet taluk,

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Sindagatta tank, Haralahalli tank, Hosaholalu tank and Agrahara Bachihalli tank. This resulted in water seeping into the agricultural fields and causing damage to the crops. The work of repair of the said tanks was declared to be of urgent nature and accordingly permission was accorded to Cauvery Neeravari Nigama Limited to carry out such repairs granting exemption under Section 4(a) of the Karnataka Transparency in Public Procurements Act, 1999 (‘Act’ for short). The declaration reads as follows:

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“C¢ü¸ÆZÀ £À É

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PÀ£ÁðlPÀ ¸ÁªÀðd¤PÀ ¸ÀAUÀæºÀuÉUÀ¼À°è ¥ÁgÀzÀ±ÀðPÀvÉ PÁAiÉÄÝ 1999 gÀ PÀ®A 4(J) CrAiÄ°è ¤Ãq À ¯ÁVg À Äª À C¢üPÁg À z À £ À éAi À Ä ºÁU À Æ ¸ À Äv À ÆÛÃ¯ É ¸ É AS À å:¦q É §Æèöår À 381 DPÆÃ-3/06, ¢£ÁAP É :10.11.2006 g À °è ¤Ãrg À Äª À ¸ À à¶ÖÃP À g À tz À C£ À éAi À Ä, ª À åª À ¸ÁÜ¥ À P À À ¤zÃð± É P À g À Ä PÁª À Ãj ¤ÃgÁª É j ¤U À ª À Ä ¤Ai À Ä«Äv À Eª À g À Ä ¢£ÁAP À :27.12.2019g À ¥ À v À æz À °è À ªg À ¢ ª À iÁrg À Äª À ¥ À æªÁº À ¢AzÁV ºÁ¤U À Æ¼ É UÁVg À Äª À P À .Dgï.¥ É Ãm É vÁ®ÆèQ£ É ¹Azs À U À lÖ À Pg É , º É g À ¼ À °è P À g É , º É Æ¸ É º À Æ¼ É ®Ä P À g É ª É Äv À ÄÛ CU À æºÁg À ¨ÁZ À º À ½î P À g É U É ¼ À z À Äg À ¹Û À PÁªÄUÁjAi À Ä£ À Äß À “ vÄv À Äð PÁª À ÄUÁj À ” JAzÄ W À ÆÃ¶¹z É . É ”

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It is claimed that the work began since then. On 24.03.2020

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on account of the country being engulfed with the pandemic i.e., COVID-19, a nation wide lockdown was declared by the Government of India, whereby all activities stood suspended and necessary works also came to be deferred. On 27.03.2020 it is the allegation of the petitioner that despite lockdown certain work order

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was issued to repair the damage of the tanks aforesaid and on 31.03.2020, the work is said to have been completed and a running bill is submitted to the tune of Rs.5.34 crores, there were 3 running bills.

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This became the subject matter of a complaint before the 2^nd respondent/Lokayukta. The complaint was concerning the exemption granted under Section 4(a) of the Act for a work which was more than Rs.5 crores, which could not have been issued except by issuance of a notification of tender. The Lokayukta examines the issue qua the exemption granted and holds that there was no illegality committed by the State in granting exemption under Section 4(a) of the Act, in the light of the fact that the works had to be attended with immediacy. Therefore, the effort of the petitioner to register a complaint before the Lokayukta had failed. The petitioner then chooses to knock at the doors of the learned Magistrate under Section 200 of the Cr.P.C seeking registration of a private complaint. The Magistrate, accepting the complaint, refers the matter for investigation. For investigation, it was necessary for the Investigating Agency to obtain prior approval from the hands of

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the Competent Authority as obtaining under Section 17A of the Prevention of Corruption Act, 1988 for prevention of corruption offences. After reference by the learned Magistrate, an FIR comes to be registered in Crime No.4 of 2022 for offences punishable under Sections 420, 406, 409, 465, 468, 471, 477A r/w Section 120(B) of the IPC, Sections 23 of the Act and under Sections 7, 8, 9, 13(1)(C) and (D) of the Prevention of Corruption Act, 1988 (Amendment Act-2018).

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The Investigating Agency sought approval from the hands of the Competent Authority to conduct investigation in the light of the crime being registered. The Competent Authority, in terms of its order dated 03.01.2022, holds that there was no illegality in all the four works entrusted to the 3^rd respondent and on the ground that a parallel enquiry was pending before the Lokayukta, the approval was declined. It is this order that drives the petitioner to this Court in the subject petition.

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On the submission made by the learned counsel for the petitioner, this Court on 27.03.2023 had passed the following order:

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The petitioner is before this Court seeking to quash an order dated 03.01.2022 whereby the 1st respondent/State declines to grant sanction for prosecution of the 3rd respondent who has now retired from service.

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The issue relates to the period during his service. The 3rd respondent is alleged that while he was working in the cadre of Executive Engineer at the Hemavathi Yedadande Nala Vibhaga, applies for an exemption under Section 4(a) of the Karnataka Transparency in Public Procurement Act, 1999 contending that certain works are necessary to be executed immediately and secures the said 4(a) exemption under the Act. This became a subject matter of a complaint before the Lokayuktha. The Lokayuktha on examination of the records closes the complaint on the ground that there was no violation of law against others including the petitioner for having secured 4(a) exemption. The matter ends there.

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The petitioner registers a private complaint invoking Section 200 of the Cr.P.C. pursuant to which, an FIR comes to be registered in Crime No.4 of 2022. Sanction was sought to proceed further by the Investigating Officer. Government declines to grant sanction on the ground that a similar complaint was pending before the Lokayuktha.

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The learned Additional Government Advocate submits that the petitioner has no locus to challenge.

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The learned counsel for the petitioner submits that for rejection or according of sanction to prosecute the order must bear application of mind and it should be after consideration of the entire material on record. The learned counsel takes this

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Court through the entire material on record that was available before the Competent Authority, which are all documents appended to the present petition, a perusal of which shocks the conscience of the Court for the following reasons:

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Entire nation was clamped with lockdown on account of the spread of the pandemic COVID-19 with effect from 24.03.2020. No Government office was open, no work was to be undertaken.

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- In spite of the lockdown, the 3rd respondent issues a work order on 27.03.2020 for the purpose of construction of retaining wall to waste weir halla, improvements to waste weirs and improvement to sluice canal of Hosaholalu Doddakere to one P.K.Shivaramu. The work order was admittedly issued on 27.03.2020. The contractor to whom the work order was issued completes the laborious work in 3 days and submits a bill of such work contending that he had completed the work and it was a running accounts bill. All this happen during the lockdown.

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- A bill of Rs.5,02,78,000/- (Rupees Five Crores Two lakhs Seventy Eight Thousand only) is immediately cleared on the approval of the 3rd respondent. Therefore, the work order which is issued on 27.03.2020, is completed within 3 days i.e., on 30.03.2020, on 31.03.2020 a bill is submitted and the aforesaid amount is immediately cleared. All these happen during the lockdown when all the offices were closes and all the works had been suspended.

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With the aforesaid facts, it further shocks as to how the Competent Authority has declined to grant sanction on the ground that a similar case is pending before the Loakayuktha notwithstanding the fact that on the said date, the proceedings before the Lokayuktha had already been closed. The 3rd respondent has not bartered away his money or the Competent Authority who has rejected sanction has not lost his money. What is bartered away is "public money".

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Therefore, the learned Additional Government Advocate is directed to secure instructions and produce the records that went into the impugned action by the next date of hearing.

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List this matter on 05.04.2023 for further hearing at 2.30 p.m.”

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In the light of the afore-quoted order, the State Government has placed on record, portions of the original records and have indicated the calendar of events, as has happened in the case at hand. The calender of events reads as follows:

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“Calendar of events for the 4(a) works executed as in WP 1945/2023

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*Date*	*Details of events*	*Documents* *enclosed*		Page no
*21.10.2019*	*Heavy* *Rain* *Recorded* in KR *Pete* *taluk* *area* *and Nagamangala* *taluk*
*22-10-2019*	*Due* to *heavy* *rain, 8 tanks in Kr* *pete taluk were* *breached and two* *roads* *were* *washed out.* Among 8 tanks, series of four major tanks are 1.Hosaholalu Doddakere. 2. Haralahalli tank. 3.Agraharabachalli tank and	*Breached* *photocopies* *tanks*	of	1-3

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	4.Sindaghatta tank.
Damage occurred in four major tanks	1.Hosaholalu Doddak and weir apron compl 2.Haralahalli tank:- completely washed o 3.Agraharabachalli ta road side bund breac 4.Sindaghatta tank: waste weir canal com Tank D/s paddy field crop washed out.	ere.:-tank R/s Waste etely washed out. Main weir wall and ut. nk:- waste weir wall hed and -Bothside waste weir pletely washed. flooded with water an	weir canal bund D/s cause way partly and D/s wall and R/s d some portion
22.10.2019	Superintending Engineer, Thahasildar, police officers and people representatives visited the breached spot	Thahasildar suggested to take immediate steps to restore breached portion. Paper cuttings.	4-7
22-10-2019	First information report with photocopies were submitted thro proper channel and higher officers were briefed by the Superintending Engineer from the spot regarding the damages occurred.	FIR copy	8-10
23-10-2019	Damages were appeared in News paper	Paper cuttings	11-12
24-10-2019	Taluk MLA Sri Narayana gowda visited the spot, Discussed with higher officers and instructed to take immediate steps to save standing crops of tank atchkhat	Photo copies enclosed	13-16

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	and to restore damaged portion. Also instructed to give the approximate cost required (line estimate).
24-10-2019	Higher officers instructed to take immediate restoration steps to save standing crops with the reputed able agencies having required machineries.	As per higher officers instructions and suggestions temporary bund formation to divert flood water to save crops commenced. Photocopies enclosed	17-18
28-10-2019	DC, Mandya District has visited the spot and assured farmers regarding early restoration works to save crops and instructed irrigation officers to speedy completion of restoration work.	News paper cutting	19-20
28-10-2019	Taluk MLA Sri Narayana gowda wrote a letter to Hon’ble CM to release funds and to instruct concerned to complete the works on emergent basis under 4(g) of KTTP act.	MLA Letter	21-23
30-10-2019	Hon’ble CM directed Finance department to take immediate steps to take up the works on 4(g) and	Hon’ble CM’s endorsed letter copy	21

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	release necessary funds.
4-11-2019	Joint Secretary to Govt, Finance department has instructed Water resources department to take up the works as per norms as per Hon’ble CM’s instructions.	FD letter	24
11-11-2019	Secretary, Water resources, has instructed MD, CNNL to take necessary steps.	Under secretary to Govt, WRD letter	25
14-11-2019	MD, Cnnl has instructed to submit detailed proposal on 4(a) to take up the works on emergent basis.	MD’s officer letter copy	26
19-11-2019	Chief Engineer, Hemavathi project, Gorur has instructed to submit detailed proposal under 4(g).	Chief Engineer office letter copy	27
13-12-2019	Detailed estimates of three tanks (1) Hosaholalu, (2) Haralahalli tank and (3) sindhaghatta tank for Rs 620.00 lakhs as per Schedule of Rates of the year 2019-20 and 4(g) proposal with agency names submitted thro proper channel to	Chief Engineer office letter copy	28-30

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	MD, CNNI for approval.
26-12-2019	Detailed estimates of three tanks for Rs 620.00 lakhs as per Schedule of Rates of the year 2019-20 and 4(g) proposal with agency names submitted to Govt for approval by MD, CNNI	MD’s office letter copy	To be enclosed
28-12-2019	Actual restoration work started since crop harvesting started in the atchkhat	Photo copies	31-32
7-01-2020	Required materials were stocked at work site and Quality control authorities have carried out necessary tests	Copies of test results	33-42
*28-01-2020*	*Approval* *accorded to the* *above* *tanks* to *take* up *under* *section* *4(a)* of *KTTP act vide GO* *WRD 4 NHP 2020* *dtd 28-01-2020*	*Copy of GO*	43
29-01-2020	After obtaining appr were continued on wa restoration of breach summer crops of tank drinking for human h	oval for Govt, work o r footing basis for earl ed portion so as to atchkhat and also to abitation.	f all the tanks y completion of allow water to utilize water for
03-03-2020	1st work, Hosaholalu tank restoration work is completed in all	Completion report issued be the CE, HRP Gorur	44-44(a)

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	respects before entering to agreement well in advance.
*20-03-2020*	*Progress of work* *of other two* *tanks* *1. Haralahalli* *tank – 50%* *completed* *2. Sindaghatta* *tank – 60%* *completed*	*Work photos of* *different stages*	*44(b) – 44()*
*23-03-2020*	*Govt’s* *approval* *communicated to* *chief* *Engineer* *from MD’s office.*	*Copy of letter*	*45-46*
*27-03-2020*	*Govt’s* *approval* *communicated by* *the* *Chief* *Engineer* *and* *instructed* to *complete* *the* *restoration works* *early*	*Copy of letter*	*47-48*
*27-03-2020*	*On the same day,* *since* *lockdown* *enforced from 24-* *03-2020 due to* *covid* 19 *pandemic,* *work* *orders for all the* *three works were* *issued* *with* *the* *help of staff who* *residing* in *the* *Colony* *itself* *which is* *beside* *the* *office* *premises.*	*Work order copies*	*49-57*
*27-03-2020*	*All the staff are res* *colony beside off*	*iding in Hemavathi* *ice premise. All*

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	*engineers were taken* *duty. Before stopping* *24-03-2020 as per Go* *measurements were rec* *portion of work executed*	*for covid 19* *the work on* *vt guideline,* *orded for the* .
*30-03-2020*	*By the time of work orde* *progress of works comm* *24-10-2019 till 30-03-20* *1. Hosaholalu tank – com* *2. Haralahalli tank – 50%* *3. Sindaghatta tank– 60*	*rs issued the* *enced from* *20 is* *pleted 100%* *completed* *% completed*
*30-03-2020*	*Only fund request* *submitted to MD, CNNL* *for portion of work done* *upto date* *1. Hosaholalu – Rs.2.57* *Crores* *2. Haralahalli tank – Rs* *43.12 lakhs.* *3. Sindaghatta tank – Rs* *1.5 crore* *(Total Rs 450 lakhs)*	*No payment* *the month m* *in three day* *agreement d*	*s is made in* *arch 2020.* *s from* *ate*
30-07-2020	2^ndwork sindhaghatta *tank work completed*	Completion report issued be the CE, HRP Gorur	58-60
31.07.2020	Funds released only in the month of July 2020. 1^stpayment 1. Hosaholalu-125.00 lakhs 2. Sindaghatta tank:144.00 lakhs *Total:Rs 269 lakhs*	*Passed* *Vouchers*	61-65 Hosaholalu tank & 66 sindhaghatta
30.08.2020 *Nov 2020*	3^rdwork Haralahalli *tank work completed in* *all respects* 2^ndpayment	Completion report issued be the CE, HRP Gorur *Passed*	67-69 70-71

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	*1. Haralahalli –* *Rs.50.00 lakhs* *Total up to date:* *319.00 lakhs*	*vouchers*
*30.03.2021*	3^rdpayment *1. Hosaholalu-132.00* *lakhs* *2. Sindaghatta* *tank:38.00 lakhs* *Total:Rs 170.00 lakhs*	*Passed* *vouchers*	72-76

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(Emphasis added)

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A little description of the calendar of events would become

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necessary. Facts that have happened upto 28.01.2020 are not germane. On 28.01.2020, the aforesaid exemption under Section 4(a) of the Act was granted. On 03.03.2020 first work of Hosaholalu tank restoration work is completed in all respects even before entering into an agreement for conduct of such work. On 23.03.2020 Government’s approval is communicated to the Chief Engineer from the Managing Director’s office. Even before the approval could be given, the progress of the work in 2 tanks was 50% and 60%. What is shocking is the incidents that have happened on 27.03.2020. On 27.03.2020 when all the offices and the entire country was under lockdown, Government’s approval is communicated by the Chief Engineer with instructions that the

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works should be completed as early as possible. Same day work orders were issued for all 3 works with the help of the staff residing in the colony itself which was beside the office premises. Therefore, what the State depicts is work from home as orders emanate from the residences of the staff. On the same day, all the staff residing in Hemavathi colony besides the office premises were directed to take measurements of the work already done and record the portion of work executed. All these things happen on the same day i.e., on 27.03.2020 during the thick of lockdown. On 30.03.2020 progress of the work is submitted. The work in one of the tanks i.e., Hosaholalu tank is said to have been completed to the tune of 100% and in respect of the other two, Haralahalli and Sindaghatta 50% and 60% of work is said to be completed and bills were submitted for Rs.4.5 crores on 30.03.2020, all during a complete lockdown.

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The agreements were executed on 27.03.2020 and the works which stood at 50% and 60% in two of the tanks complete during the lockdown, measurements are taken, work execution report is submitted along with the bills. The clearance of the bills

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may have been at a later date, but all the aforesaid happen during the lockdown. If these were the dates, there was no warrant for the State Government to have declined approval for investigation. Approval is declined on the ground that parallel enquiry before the Lokayukta was pending. As a matter of fact, the Lokayukta had already closed the proceeding on the date on which the approval was refused. It is therefore this Court had directed the Government to answer as to how the approval could be rejected, on the ground that proceedings before the Lokayuktha were pending while the fact is that it was closed.

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Now at the time when the hearing was on, the learned Additional Government Advocate passes on an order dated 11.04.2023 by which the State Government has accorded approval as obtaining under Section 17(a) of the Prevention of Corruption Act, 1988 for conduct of investigation in terms of the crime so registered in Crime No.4 of 2022 for the aforesaid offences.The aforesaid facts became necessary to be noticed in the light of the memo filed by the learned Additional Government Advocate indicating the dates along with photographs. Any further

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observation beyond what is already narrated hereinabove would cause prejudice to the 3^rd respondent or the investigating agency. Therefore, this Court would hold its hands for any further observations in the light of the approval being granted for investigating into the crime in Crime No.4 of 2022 under Section 17(a) of the Prevention of Corruption Act, 1988.

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In the light of the approval being accorded, the learned counsel for the petitioner submits that the grievance of the petitioner is redressed. Therefore, with the aforesaid narration, the petition stands disposed.

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Consequently, I.A.No.3 of 2023 also stands disposed.

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Sd/JUDGE

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Bkp

Sri Nagegowda v. the State of Karnataka

Case brief

What is this about?

What did the court decide?

Sri Nagegowda v. the State of Karnataka

Case brief

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What did the court decide?

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