M.R. Ramesh and Others vs C. Lakshminarayana and Others

Rathnakala, J.—1. The petitioners are aggrieved by the registration of FIR against them in Crime No. 18/2012 in respect of the offence punishable under Sections 120B, 468 and 471 of IPC and Sections 13(1)(d), 13(2) of Prevention of Corruption Act, 1988 (for short, ''the Act''), in pursuance of the order of reference passed by the Special Court on the private complaint of Respondent No. 1.

The essence of the complaint allegation is, the lands in Sy. No. 100/P1, 101/1 and 103 of Arekere Village, Begur Hobli, Bangalore South Taluk, were acquired for the purpose of formation of 9th Phase, J.P. Nagar, Bangalore, vide Gazette Notification dated 22.7.1991. Accused Nos. 11 to 13 claiming to be the previous owners of the said land, entered into Joint Development Agreement with 1st accused/Company. Accused Nos. 2 and 3 are the Directors of accused No. 1. The first accused sought for de-notification of the land on the pretext of maintaining Nursery and greenery and the land was de-notified subject to condition that he maintains the land as Nursery only; with liberty to the Bangalore Development Authority to acquire the land for its scheme in the event of violation of condition. Accused Nos. 4 to 11 and 14 being the public servants joined hand with accused No. 1 and changed the nature of the land, though it was not permissible to get the land converted for non-agricultural purpose. 20 guntas of land was converted for extraneous reason ignoring the legal formalities. Layout plan was approved. There is indiscriminate sanction and approval to allow Apartments to come up. The co-accused, who were the public servants, working as the Special Deputy Commissioner, the then Commissioner, the then Chairman, the then Town Planning Member, the then Deputy Commissioner (Land Acquisition) of Bangalore Development Authority, have played decisive roles to get the land approved by suppressing the facts. Though relevant and true facts were brought to the notice of the concerned authorities, no action is taken.

Sri Uday Holla, learned Senior Advocate, on behalf of Sri Vijay Kumar Desai, learned counsel for petitioners submits that the petitioner Nos. 2 and 3/accused Nos. 13 and 14 are the sons of petitioner No. 1/accused No. 12. They have remarkable standing in the world of business, community service and philanthropy. They are the owners of converted land measuring 7 acres 29 guntas, in Sy. No. 100/P1, 101/1 and 103 of Arekere Village, Begur Hobli, Bangalore South Taluk, having purchased the same for valuable consideration under the registered sale deed dated 31.12.1980 and 06.06.1983. Out of the said land, 7 acres 3 guntas was acquired under Notification, dated 22.07.1991 under Section 6 of the Land Acquisition Act, 1894 for BDA''s 9th Stage, J.P. Nagar Scheme. No further proceedings were taken and possession of the lands was never disturbed. Instead, in exercise of power under Section 48(1) of the Land Acquisition Act, 1894, the entire extent of 7 acres 3 guntas acquired was withdrawn from the acquisition with a condition that it shall be maintained as a Nursery which the petitioners were doing since 1980. In the event of violation of condition to maintain a Nursery, liberty was reserved to the BDA to acquire the land for its 9th Stage, J.P. Nagar Scheme. A Notification, dated 26.08.1996, was issued for withdrawing the acquired 7 acres 3 guntas from acquisition. Accordingly, for a period of 10 years, the petitioners continued to maintain a Nursery till 2006. The said lands were classified as residential in the CDP 1995 and also in the latest Master Plan-CDP/RMP 2015. There was incongruity between the classification in the CDP/RMP 2015 and in the condition imposed by the Government to maintain a Nursery. The BDA vide its letter, dated 26.02.1996, recommended to the Government to classify the said land as Park Zone in conformity with the condition. The Government did not accede to the request/recommendation made by the BDA since it was residential area as per new CDP i.e. RMP 2015. In that view of matter, the petitioners had to use the land in question for residential purpose. The BDA de-notified several lands in Arekere Village unconditionally and imposing a condition on the petitioners'' land alone was illegal. Vide the BDA''s Planning Committee Report, dated 28.01.1999, it was recommended that lands in Arekere Village were dropped from the BDA''s 9th Stage, J.P. Nagar Scheme, since it was fully developed area. The petitioners applied for conversion under the Karnataka Land Revenue Act, to the extent of 7 acres 13 guntas from agricultural to non-agricultural purpose to fall in line with CDP/RMP 2015. The BDA allowed the application and granted its NOCs, dated 17.10.2006 and 14.01.2008, for conversion. The Special Deputy Commissioner issued conversion order in respect of said land. The BDA has issued its sanction to the Development Plan, dated 17.03.2007 in respect of said land. However, the works order was withheld and kept in pending the production of conversion order in respect of 16 guntas. The petitioners decided to jointly develop the land only to the extent of 7 acres 1.67 guntas along with developer M/s. SJR Builders. Conversion order for 16 guntas was obtained on 05.02.2008 and the BDA issued its Modified Development Plan on 28.03.2008 and Works Order dated 06.03.2008 for lesser extent of 7 acres 1.67 guntas. The BBMP issued its Building License and Commencement Certificate on 04.11.2009. Now the lands are jointly developed in accordance with law and the Modified Development Plan, dated 28.03.2008. Though BDA had power to acquire the land in question, in the event of land not being used for nursery, abandoned its right and decided not to acquire the lands. Area of 7 acres 29 guntas is not feasible to develop a layout. Apartments are constructed over the land. One G. Harish with ulterior motive filed false and frivolous complaint against BDA. Respondent No. 1 and G. Harish alleged that the land vests with the BDA since they have not maintained nursery after 2006. Respondent No. 1-C. Lakshminarayana is an Ex-Councilor from the locality. The BDA after inviting its owner from the Legal Officer, has held with the direction of the petitioners in accordance with law. Aggrieved by the same, Respondent No. 1 and G. Harish have filed false complaint. Learned Special Judge without application of mind as to whether any offence is made out under the provisions of law has mechanically referred the matter for investigation. In pursuance of the order directing the investigation, the BDA has passed resolution directing that the Works order is kept in abeyance. The petitioners challenged the said order in WP Nos. 25066 to 25068/2012. Respondent No. 1 is known for filing false and frivolous complaint. Hence, the order of reference and registration of complaint is bad in law and liable to be quashed in exercise of jurisdiction under Section 482 of Cr.P.C.

Sri Venkatesh P. Dalwai, learned Special Public Prosecutor for respondent No. 14/Lokayukta submits that by the time interim stay order was granted in this case thereby staying further proceedings, on 31.7.2012 investigation was completed and charge sheet was filed to the Court and learned Special Judge had taken cognizance of the offence. However, in view of the interim order operating, the trial is stalled. The petition has become infructuous in view of filing of the charge sheet, hence, the FIR cannot be quashed in exercise of jurisdiction under Section 482 of Cr.P.C.

Before taking off for appreciation of the material on record, it is worth mentioning at this juncture itself that 14th accused of P.C.R. No. 8/2012/Ramegowda challenged his implication in the case by way of Section 482 of Cr.P.C.; said petition was disposed of by him in Criminal Petition No. 4897/2013 D.D. 28.12.2015; now the private complaint and charge sheet so far 14th accused Ramegowda/Special Deputy Commissioner, who had accorded permission for conversion of the land for residential purpose, stand quashed. Having regard to the role attributed to the said Special Deputy Commissioner by the prosecution and for want of sanction from the Government to prosecute him, the PCR and the charge sheet as far as 14th accused is concerned, is quashed. What all observation was made during the course of discussion in the said order, need not have any bearing for adjudication of the present petition because the petitioners herein are private parties and the role attributed to them is distinct from that of public servants/co-accused. It was the submission of learned Senior counsel for the petitioners, filing of the present petition before this Court and filing of the charge sheet before the Special Court were on the same day, which according to him, is not a mere coincidence. Even if that is so, now no enquiry can be made at this length of time to probe, which was the earlier in point of time whether the petition under Section 482 of Cr.P.C.? or the charge sheet? There is no practice in the Trial Court to record the time of presentation of charge sheet in the office, though in respect of the FIR, the Magistrate endorses time and date of the receipt.

Of course, the allegation against these petitioners was not specific while attributing against all the accused persons of fabrication of documents, creation of documents, using them as genuine, etc., but, the prosecution on conclusion of the investigation has arrayed these petitioners as accused Nos. 3, 4 and 5 and has made out definite case against them. Now the case of the prosecution is, the first accused being the Managing Director of M/s. S.J.R. Enterprises along with the second accused/another Director of the said Company entered into joint development agreement with the petitioners/accused Nos. 3 to 5 in respect of the property/subject matter of the whole lis. With an intention to get the development plan from the B.D.A., the accused Nos. 1 to 6 conspired together, created a supplementary agreement as if 16 guntas of land in Sy. No. 103 of Arekere Village was registered in the Sub-Registrar''s office at Bommanahalli on 24.9.2007 vide document No. 685/2007-08; they produced fake documents as genuine before the BDA officials; they have avoided the stamp duty for registration to a tune of Rs. 11,000/-. That apart, they have built apartment and made profit thereby accused Nos. 1 and 2 committed offence under Sections 468, 471, 420 and 120B of IPC. The first petitioner/accused No. 3 in the charge sheet had made representation to the Government that he is maintaining a nursery in the land in question and requested the Government to de-notify the land. He had executed a declaration to the BDA undertaking to continue the nursery in the said land. On that undertaking, the Government de-notified the land with a condition to continue to maintain the nursery. But he suppressed the condition imposed at the time of de-notification, gave representation to the Tahsildar on 22.11.2005 and conspired with the officials/accused Nos. 9 to 12 and through them, gave a report to the De-notification Committee that the land is not acquired and thereby got the land converted for non-agricultural purpose. He obtained the plan approved from the Planning Section of BDA with the connivance of the officials/Land Acquisition Officers/accused Nos. 7, 8, 10 and 11. The accused Nos. 3 to 5 by entering into joint development agreement and by executing GPA with accused Nos. 1 and 2, presented the documents created by accused Nos. 1 and 2 to the BDA officials for sanction on 3.11.2007 and got the sanction thereby the third accused has committed an offence under Sections 471, 420, 120B of IPC; accused Nos. 4 and 5 committed an offence under Sections 420 and 120B of IPC.

As observed earlier, at this length of time, there is no foolproof material available to hold that the charge sheet is earlier in point of time to the interim stay ordered by this Court on 31.07.2012. The charge sheet filed by the Investigating Officer cannot be ignored. In that view of the matter, the contention raised about the illegality in the order of reference passed under Section 156(3) of Cr.P.C. for want of application of mind by the Special Judge, to the complaint allegation and the previous enmity between G. Harish and the petitioners, etc., take a back seat. Whether from the materials collected against these petitioners, the offence under the Indian Penal Code as cited in the charge sheet under Sections 471, 400, 120B of IPC is made out or not is for the Special Judge to frame appropriate charges after giving audience to both parties. It is also upto the petitioners to urge before the Special Judge for discharge if they are to contend that there is no incriminating material against them to proceed with the prosecution.

For the discussion supra, I hold that there is no circumstance to exercise the jurisdiction under Section 482 of Cr.P.C. to quash the proceedings.

Hence, the petition is rejected.

All the contentions are kept open.