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Judgment
The instant bunch of writ petitions as well as criminal misc.
petitions involve common questions of facts and law and are thus
being decided by a single order.
The petitioner Shera Ram was the then elected Sarpanch and
the petitioner Shivdarshan was posted as Gram Sevak-cum-
Secretary at the Gram Panchayat Datina, District Nagaur at the
relevant point of time.
During the tenure of the petitioners, certain construction/
development works were undertaken in the Gram Panchayat
Datina under the MGNREGA Scheme. One Maan Singh lodged
various complaints in the court of learned Special Judge, Anti
Corruption Cases, Jodhpur alleging inter alia that the Sarpanch
Shera Ram and the Gram Sevak Shivdarshan, acting in connivance
with various other officers of the Panchayat Samiti, Nagaur,
carried out the disputed works in a substandard manner and, by
making excessive valuation, got sanctioned the total estimated
cost of the works thereby causing loss to the Government. The
complaints were lodged for the following works:
Construction of Tanka in Aanganbari Kendra No.2 (FIR No.41/2011) Sanction order No.31265 dated 31.03.2008.
Construction of tanka (water tank) in Aangabari Kendra No.3 (FIR No.42/2011) Sanction order No.31265 dated 31.03.2008.
Construction of gravel road from village Datina to Karnoo (FIR No.43/2011) Sanction order No.11194 dated 26.07.2008.
Construction of grave road from the village Datina to Dairywala Rajput Dani (FIR No.44/2011) Sanction order No.21650 dated 13.04.2009.
Construction of Tharali Nadi in the village Datina (FIR No.45/2011) Sanction Order No.24396 dated 14.05.2009.
Construction of Nayi Nadi in the village Datina (FIR No.46/2011).
Digging of Khidolai Nadi (FIR No.47/2011) Sanction order No.3440 dated 20.05.2008 passed by District Collector- cum- District Project Coordinator.
Digging and Pakka construction of Khidolai Nadi in village Datina (FIR No.48/2011) Sanction order No.24396 dated 14.05.2009 passed by the District Collector- cum- District Project Coordinator.
Digging and Pakka construction of Kerolai Nadi in village Datina (FIR No.49/2011) Sanction order No.21680 dated 13.04.2009.
Writ petitions No.8773/2013, 10344/2013, 10345/2013,
10496/2013, 10497/2013, 10498/2013, 10507/2013,
10508/2013, 10509/2013 have been preferred by the petitioner
Shivdarshan under Article 226 of the Constitution of India seeking
to assail the orders whereby sanction to prosecute him was
granted by the competent authority. At the same time, the misc. petitions No.267/2014, 268/2014, 372/2014, 373/2014,
393/2014, 394/2014, 395/2014 have been filed by the petitioner
Shivdarshan under Section 482 Cr.P.C. seeking quashment of the
FIRs mentioned above. At the same time, Misc. Petitions
No.723/2014, 655/2014, 721/2014, 724/2014, 725/2014,
899/2014, 900/2014, 902/2014 and 96/2014 have been preferred
on behalf of the petitioner Shera Ram seeking quashing of the
FIRs under challenge.
Sarva Shri Vinay Kothari and Shri Manoj Bohra, learned counsel representing the respective petitioners vehemently urged
that the entire proceedings sought to be undertaken against the
petitioners including the FIRs under challenge and the sanction
orders issued in the respective cases are arbitrary, perverse and
suffer from gross abuse of process of law and thus deserve to be
quashed and set aside. They urged that sanction to prosecute the
Assistant Engineer Mirza Rehman, who was also intrisically
involved in the works, was sought by the investigating agency in
relation to the FIRs No.42/2011 and 50/2011. In both these
matters, the sanctioning authority turned down the proposal to
issue prosecution sanction against Mirza Rehman assigning a
reason that the evaluation of the disputed works was conducted
after nearly three years from the execution of the works. Further,
the two factual inquiries conducted by the Bureau resulted into
divergent findings and thus, the sanctioning authority did not find
it to be a fit case for granting sanction to prosecute the said A.En. They further urged that in the cases at hand, the reports of site
inspection on the basis whereof the prosecuting agency proposes
to proceed against the petitioners, were prepared after nearly
three years of the actual execution of the works in question. By
this time, the constructions dilapidated owing to efflux of time and
by diminishing effects of elements. They further urged that the
inspection of the works executed under the MGNREGA Scheme is
required to be carried out in accordance with the standing
instructions issued by the Rural Development and Panchayati Raj
Department, Government of Rajasthan whereas the inspection
reports on the basis whereof, the prosecution agency has based its
conclusions, were carried out by a committee consisting of two
Engineers of the Public Works Department. They urged that no
sanctity can be attached to such reports because the committee
constituted by Engineers of the Public Works Department is not
authorised to evaluate the works conducted under the MGNREGA
Scheme. They further urged that the prosecution has adopted a
different yardstick for prosecuting the petitioners. Whilst in the
case of Mirza Rehman, sanction has been refused on the ground
that the evaluation report of the committee was received after
three years from the execution of the disputed works and
possibility of the construction being diminished by efflux of time
and exposure of elements could not be ruled out. On the other
hand, the same reports are being utilized and relied upon for
prosecuting the petitioners. They thus vehemently contended that
the impugned FIRs and the impugned sanction orders are bad in
eye of law and thus deserve to be quashed.
Per contra, learned Sr. Counsel Shri Mahesh Bora assisted by
Shri M.S. Rathore, learned Public Prosecutor assisted by the
investigating officer Shri Zakir Akhtar, Dy. S.P., ACB, Nagaur and
Shri Manish Patel, AGC vehemently opposed the submissions
advanced by the petitioners'' counsel. They urged that upon site
inspection being conducted by the duly authorised committee
consisting of two senior officials of the Public Works Department,
serious deficiencies were found in the works executed under the
active supervision of the present petitioners. Relying on the
inspection reports, the investigating officer has reached to a prima
facie conclusion that the petitioners over-valued the works and
sanctioned excess payments thereby causing huge loss to the
Government. They thus vehemently contended that the petitioners
are not entitled to the relief as claimed for in these petitions while
exercising the extraordinary/ inherent powers of the Court.
I have heard and considered the arguments advanced by the
learned counsel representing the parties and have gone through
the material available on record.
It is an admitted fact that the disputed works were
undertaken under the MGNREGA Scheme at the Gram Panchayat
Datina in active supervision of the petitioners herein in the years
2008/2009 respectively. Mirza Rehman and Buddhram were the
Assistant Engineers during execution of two of the works in
relation whereof, FIR Nos.43/2011 and 50/2011 have been
registered. The State Government, by its orders dated 28.03.2013
and 26.07.2015 respectively, refused sanction to prosecute Mirza
Rehman as well as Budh Ram in relation to the corresponding
works with the following observations:
"VERNACULAR MATTER OMITTED"
Upon going through the case diaries, it emerges that the
investigating officer has procured two sets of verification reports
from the committee constituted by two officers of the PWD. The
first valuation report dated 26.05.2011 was procured in relation to
FIR Nos.41/2011, 42/2011, 43/2011, 44/2011 and 45/2011
whereas the second inspection report dated 02.06.2011 was
procured regarding FIRs No.46/2011, 47/2011, 48/2011, 49/2011
and 50/2011. Evidently, the State Government did not consider
these reports reliable so as to prosecute the Assistant Engineers
Mirza Rehman and Budha Ram and the proposal to grant sanction
to prosecute them was turned down vide orders dated 28.03.2013
and 26.07.2015. Though on a perusal of the entire sanction
refusal orders qua the Assistant Engineers, it would appear that
one of the reasons of refusal of sanction was that the Engineers
were not directly connected with the works in question but at the
same time, the Court cannot overlook the fact that the sanctioning
authority being the Secretary to the State Government has
observed in the sanction refusal order that the inspection reports
were questionable because the site inspection was carried out
after nearly three years of actual execution of the disputed works.
This Court fails to understand that if the inspection reports were
unreliable qua some of the officials involved in the same works,
then how the same could be relied upon for the others. The action
of the prosecution agency thus evidently suffers from gross
arbitrariness.
Learned counsel representing the petitioners have brought to
the notice of the Court, the specific orders issued by the Rural
Development and Panchayati Raj Department, Government of
Rajasthan as per which, the total life of a gravel road has been
prescribed to be 5 years. Thus apparently, the works of the nature
in relation whereto the FIRs were registered are bound to get
degenerated by wear and tear and with efflux of time. Since the
inspection reports which form basis of the prosecution case were
procured after nearly two to three years from the actual execution
works, obviously the reliability thereof is questionable. Further,
learned State counsel failed to satisfy the Court regarding the
jurisdiction of the inspection committee which gave the two
reports mentioned above to evaluate the works. Evidently, the
works were carried out under the MGNREGA Schema and specific
guidelines have been issued by the State Government for
governing the evaluation of works carried out under the said
scheme. Admittedly, the evaluation of the disputed works was not
conducted while adhering to those guidelines/ Rules. In these
circumstances, this Court is of the opinion that allowing
prosecution of the petitioners in these FIRs would amount to gross
abuse of process of law.
Consequently, the miscellaneous petitions as well as writ
petitions deserve acceptance. The impugned sanction orders
issued against the petitioner Shera Ram and so also the FIRs
pending under investigation against both the petitioners
Shivdarshan and Shera Ram are hereby quashed and set aside.
The miscellaneous petitions as well as writ petitions are
allowed in the above terms.