vague allegations against a quasi judicial order - FIR Quashed
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
WEDNESDAY, THE 15TH DAY OF MARCH 2023 / 24TH PHALGUNA, 1944
CRL.MC NO. 8766 OF 2022
(AGAINST FIR NO.VC.06/2022/TSR OF VIGILANCE &
ANTI-CORRUPTION BUREAU, THRISSUR)
2. The petitioners are the accused Nos. 1, 2 and 5 to 10.The
offences alleged are punishable under Sections 13(2) r/w 13(1)(d)
(i,ii,iii) of the Prevention of Corruption Act, 1988 and Section 7 of the
Prevention of Corruption (Amendment) Act, 2018, along with Section
120B of the Indian Penal Code, 1860.
3. The accused No.1 is the Taluk Land Board Chairman and
Deputy Collector (LR), Thrissur. The accused No.2 is the Tahsildar,
Thrissur Taluk, who is the Ex-officio member of the Taluk Board . The
accused Nos.3 and 4 are Taluk Land Board members, Thrissur Taluk.
The accused No.5 is the managing director, and the accused Nos. 6 to
10 are the directors of M/s.Thomson Granites Pvt. Ltd (for short ‘the
Company’), a private limited company registered under the Indian
Companies Act engaged in the quarrying business. The accused No. 11
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is described as ‘Public servants in various departments’.
4. The prosecution case, in short, is that the accused Nos.5 to
11 conspired together since 2003 to undertake mining activity
illegally in 19.0938 hectares of assigned forest land at Ollukkara
Village, which was purchased and registered in the name of the
Company, paid land tax and generated other certificates for
production before the Mining and Geology department, thereby
obtaining mining sanction wrongfully. It is further alleged that, in the
year 2019, the accused Nos. 1 to 4, being the Chairman and Members
of the Taluk Land Board, Thrissur, as such being public servants,
connived and conspired with the accused Nos.5 to 11 by misusing
their official capacity and by violating Section 81 of the Kerala Land
Reforms Act, 1963 (for short ‘the KLR Act’), and Rule 3 of the Kerala
Land Assignment Special Rules 1993 and also by suppressing the
report of the Tahsildar Ceiling and Return, illegally issued order
No.LR1-4070/18 dated 2/4/2019 (for short ‘the impugned order), in
favour of the Company for exempting the company-owned forest land
of 19.0938 hectares mentioned above as a commercial site for
quarrying purposes by way of accepting pecuniary benefits without
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public interest involved and for performing the official duty
improperly.
5. I have heard Sri.Johnson Gomez, the learned counsel for
the accused Nos. 1 and 2, Sri. Paul Jacob, the learned counsel for the
accused Nos. 5 to 11 and Sri. A.Rajesh, the learned Special Public
Prosecutor.
6. The learned counsel for the accused Nos. 1 and 2 Sri.
Johnson Gomez submitted that the allegations in the FIR, even if
they are taken at their face value and accepted in their entirety do not
prima facie constitute any offence or make out any case against the
accused Nos. 1 and 2. The learned counsel further submitted that
accused No.1 being the Chairman and accused No.2 being the Exofficio member of the Taluk Land Board, which is a quasi-judicial
authority constituted under Section 100A of the KLR Act, are entitled
to protection against prosecution. F.I.R was registered without
obtaining sanction under Section 17-A of the Prevention of
Corruption Act, added the counsel.
7. The learned counsel for the accused Nos. 5 to 10 Sri. Paul
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Jacob submitted that the averments in the FIR do not constitute any
offence whatsoever against the accused Nos. 5 to 10. The learned
counsel further submitted that accused Nos. 5 to 10 have been roped
in their official capacity as directors of a duly incorporated Company
and without the Company in the array of the accused, a criminal
prosecution against the directors alone could not stand. The counsel
also submitted that the prosecution is bad since no previous sanction
of the State Government was obtained.
8. The learned Special Public Prosecutor Sri. A. Rajesh
submitted that this court under the exercise of its inherent power
under section 482 of Cr.P.C should not interfere with the
investigation when the FIR discloses the commission of a cognizable
offence.
9. As stated already, accused No.5 is the managing director
and accused Nos. 6 to 10 are the directors of the Company which is
engaged in the business of quarrying. It also runs a crusher unit.
19.0938 hectares of land situated in Ollukkara Village, Thrissur Taluk
in Thrissur district mentioned in the F.I.R. admittedly belong to the
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Company. The Company purchased the said land through 16 separate
sale deeds during the period 2003-2014. It is not in dispute that all
those 16 sale deeds traced their title to the land assignment that
happened under the Kerala Land Assignment Rules, 1964. It is also
not in dispute that a granite quarry and crusher unit are functioning
on the above-said land. For the said purpose, the company has
obtained a quarrying license, which expired on 27/10/2018. It
appears that the Director of Mining and Geology insisted for a Ceiling
Limit Certificate to renew the license on the premises that the
company possessed land more than the ceiling limit under the Land
Assignment Act. Accordingly, the Company filed the Ceiling Limit
Return at the Taluk Land Board, Thrissur. The Company also filed an
application under Section 85 A of the KLR Act at the Taluk Land
Board Thrissur, seeking a declaration that the land in question is
used for commercial purposes as provided under Section 81(1)(q) of
the KLR Act. The Company claimed before the Taluk Land Board that
the whole land is used as a quarry and there is a crusher unit therein
as well and thus eligible for exemption under Section 81(1)(q). The
Taluk Land Board called for three reports from the concerned
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Tahsildars for deciding the issue. The three reports were filed by
Deputy Tahsildar (Ceiling Return) dated 4/1/2019, Tahsildar (LR)
dated 13/11/2018 and Tahsildar (LR) dated 29/3/2019. Over and
above those reports, the accused No.1, who is the Chairman of the
Taluk Land Board, himself conducted a personal inspection of the
land in question. Ultimately, after hearing both sides, the Taluk Land
Board, as per the impugned order, allowed the application in favour
of the Company. A declaration sought was granted. It was thereafter
the FIR was registered
...
13. The FIR contains two parts. In the first part, the offences
under the unamended PC Act of 1988 have been invoked, and in the
second part, the offence under the amended Act of 2018 has been
invoked. The allegation in the first part is that the accused Nos.5 to
10 conspired with public servants in various departments from 2003
onwards to illegally perform mining activities in the land in question
purchased in the name of the company, paid land tax and generated
other certificates to produce before the Mining and Geology
Department for getting mining sanction wrongfully. The allegation in
the second part is that the accused Nos.1 to 4 conspired with the
accused Nos. 5 to 10 by misusing their official capacity and by
violating certain provisions and suppressing the report of the
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Tahasildar (Ceiling and Return), issued the impugned order in favour
of the company for exempting the land in question as a commercial
site for the quarrying purpose by accepting pecuniary benefits,
without public interest.
14. The offences alleged under the first part are punishable
under Sections 13(2) r/w 13(1)(d) (i, ii iii) of the PC Act, 1988 and
Section 120B of IPC. To attract Section 13(d) (i), (ii) & (iii), there must
be an allegation that the public servant by corrupt or illegal means or
by abusing his official position as a public servant or without any
public interest, obtained for himself or for any other person any
valuable thing or pecuniary advantage. As stated already, the only
allegation in the first part of the FIR is that the accused Nos.5 to 10
conspired with public servants of various departments from 2003
onwards for illegally performing mining activities on the land
purchased in the name of the Company. The said allegation is so
vague. The allegation does not speak about any illegal gratification,
nor does it say that any specified public servant obtained any
pecuniary advantage or valuable thing either for himself or for the
company by abusing their official position. There is also no allegation
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that the accused Nos.5 to 10 bribed any of the public servants for
obtaining various certificates for performing mining activities in the
land in question. In the investigation conducted so far, the
investigating agency could not locate or pinpoint the so-called public
servants who were allegedly involved in the offences that fall within
the first part. Thus, there is absolutely nothing to attract Section 13(1)
(d) (i), (ii) & (iii) of the PC Act, 1988. To bring home the charge of
conspiracy within the ambit of Section 120B of IPC, it is necessary to
establish that there was an agreement between the parties for doing
an unlawful act, which is also lacking in the FIR. Hence, Section 120B
of the IPC is also not attracted.
15. Regarding the second part of the FIR as well, the
allegation is vague. The precise allegation is that the accused Nos.1 to
4 colluded with the accused Nos.5 to 10, misusing their official
capacity and in violation of the statutory provisions passed the
impugned order exempting the land owned by the company on the
ground that it is a commercial site which falls within Section 8(1)(q)
of the KLR Act. The Taluk Land Board is a quasi-judicial authority.
The accused No.1 is the Chairman, the accused No.2 is the Ex-officio
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member and the accused Nos.3 and 4 are the members of the Taluk
Land Board. They were performing statutory duties vested in them
while passing the impugned order. The records would show that
when the company applied for renewal of its quarrying licence, the
Mining and Geology Department insisted for a Ceiling Certificate. It
was in these circumstances, the company submitted a ceiling return
and also filed an application under Section 85(A) of the KLR Act,
seeking a declaration that the land is used for a commercial purpose
and thus eligible for exemption under Section 81(q) of the KLR Act. It
is seen from the records that the Taluk Land Board under the exercise
of its quasi-judicial function conducted an enquiry, called for a report
from the Tahasildar and after perusal of all the records and also after
hearing the parties, passed the impugned order. The said order is
amenable to statutory appeal. It is submitted that an appeal filed by
the Government is still pending. A criminal proceeding cannot be
initiated merely on the ground that a wrong or incorrect order was
passed by the public servant. If a public servant acting as a quasijudicial authority under a statute passes an order and if such order is
in favour of a person other than the Government, any pecuniary
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advantage obtained by such person by virtue of such order, cannot be
the basis for prosecution of the public servant under the PC Act,
unless there is an allegation that he was actuated by extraneous
considerations or oblique motives in passing the order (See Sunil
Kumar v. State of Kerala 2021 (4) KLT 51). There is no case for
the prosecution that the accused Nos. 1 to 4 is actuated by any such
extraneous considerations or oblique motives in passing the
impugned order. Even though it is vaguely alleged in the second part
of the FIR that the impugned order was passed by the Taluk Land
Board by accepting pecuniary benefits, there is no specific allegation
that the accused Nos.5 to 10 made any payment to the accused Nos.1
to 4. That apart, Section 8 of the PC Act was not invoked. There is
nothing on record to suggest that the order in question was passed by
the accused Nos.1 to 4 obtaining or accepting any undue advantage
from the accused Nos.5 to 10 as a reward for passing such an order.
Hence, Section 7 of the Amended Act also is not attracted.
16. As stated already, the impugned order was passed by
accused No.1 and 2 in their capacity as the Chairman and Member of
the Taluk Land Board which is a quasi-judicial authority constituted
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under Section 100A of the KLR Act. No doubt, the proceeding under
Section 85(A) of the KLR Act is a legal proceeding. Hence, the
Chairman and Member of the Taluk Land Board would fall within the
definition of the ‘Judge’ in Section 2 of the Judges (Protection) Act,
1985 which refers to every person who is empowered by law to give a
definitive judgment in a legal proceeding. The Chairman and Member
of the Taluk Land Board are entitled to get protection under Section
3(1) of the Judges (Protection) Act, 1985 in respect of the order
passed by them under the exercise of their quasi-judicial functions
(See Santhosh Kumar v. State of Kerala 2021 (4) KLT 547). The
criminal prosecution against the accused Nos.1 and 2 is, thus, barred
under law and not maintainable.
17. It was the Company which approached the Taluk Land
Board with an application for exemption. The order passed was in
favour of the Company which is a legal entity. The accused Nos.5 to
10 have been arrayed as an accused in their official capacity as
directors of the Company. In short, vicarious liability is sought to be
imposed on them. However, the Company as such has not been
arrayed as accused. The allegations in the FIR are essentially
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attributable to the acts purportedly committed by the accused Nos.5
to 10 in their official capacity as directors of the Company. There is no
allegation that they independently or in their personal capacity
gained out of the transaction. It is settled that in the absence of a
specific allegation against the managing director or directors of
vicarious liability, no criminal proceedings can be initiated against
them in the absence of Company being arrayed as a party. When a
complainant intends to rope in a managing director or any officer of a
Company, it is essential to make requisite allegations to constitute
vicarious liability [See Sharad Kumar Sanghi v. Sangita Rane
(2015) 12 SCC 781 and also Sushil Sethi and Another v. State of
Arunachal Pradesh and Others (2020) 3 SCC 240]. Here also,
there is no specific averment to constitute vicarious liability. There is
also no averment that the accused Nos. 5 to 10 were in-charge of and
responsible for the business of the Company and by virtue of their
position, they are liable to be proceeded with. Hence, without the
Company in the party array, the prosecution against the accused
Nos.5 to 10 in their official capacity as directors of the Company
cannot be sustained.
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18. In the light of the above findings, the prosecution against
the petitioners is not sustainable. No purpose will be served in
proceeding with the matter any further. Accordingly, all further
proceedings against the petitioners in FIR No.VC-6/2022/TSR of
VACB, Thrissur are hereby quashed.