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TMI Blog2024 (9) TMI 1710X X X X Extracts X X X X X X X X Extracts X X X X ..... mplaints before the concerned Court were justified in the fact situation? - HELD THAT:- After cancelling the resolution it appears that a Technical Committee was appointed by Government to go into the illegalities of MUDA. The Technical Committee is said to have submitted its report highlighting huge corruption and fraud played by MUDA officials. When all these inquiries were going on a complaint comes to be registered by 3rd and 4th respondents before the jurisdictional police on 3-07-2024. The jurisdictional Police though acknowledged the complaint, did not take it further. On 12-07-2024 both the 3rd and 4th respondents register complaints before the Commissioner of Police. This was in compliance with clause (1) of sub-section (2) of Section 154 of the Cr.P.C.. Even then, no action is taken. The 4th respondent then approaches the Lokayukta on 26-07-2024 to register a complaint against the petitioner. When things stood thus, the 3rd and 4th respondents file their respective private complaints before the Special Court constituted exclusively to deal with criminal cases against MPs and MLAs. It is then, the 3rd respondent knocks at the doors of the Governor seeking approval/sanction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the order passed by the high functionary. The high functionary in the case on hand is the Governor. It is no doubt true that reasons cannot be supplied by way of statement of objections. That would be a situation where there are no reasons even in the file. Therefore, the said judgment would not become applicable to the facts of the case. Copious reasons are found in the file and even in the impugned order. There are no hesitation to hold that it does bear application of mind. Therefore, the submission of the learned senior counsel for the petitioner qua application of mind would tumble down like a pack of cards. Whether the decision taken by the Governor in alleged hottest haste of issuing a show cause notice on the same day of receipt of the petition has vitiated the entire decision? - HELD THAT:- A feeble attempt is made by the learned senior counsel for the petitioner that the Governor refers to two other petitions, but no show cause notices were issued on those two petitions. Those petitions are of respondents 4 and 5. The Governor though in three lines of a particular paragraph observes that there are petitions of other petitioners also; he does not deliberate upon the con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s erroneous. The order could be considered only as an order under Section 17A of the Act. Therefore, no submissions are made qua Section 218 of BNSS by any of the counsel representing the parties. It is, therefore, it is deemed appropriate to restrict and read the order only as an approval under Section 17A of the Act and not an order for grant of sanction under Section 218 of BNSS. Whether prima facie role of the petitioner is established? - HELD THAT:- The allegations would require investigation in the least, for the reason that if the petitioner was not in the seat of power, helm of affairs, the benefit with such magnitude would not have flown. It has highterto never flown to any common man, nor can it, in future flow. It is unheard of for a common man to get these benefits in such quick succession bending the rule from time to time. Therefore, the petitioner may not have put his signature, made a recommendation or taken a decision, for bringing him into the offence against him under the Act, but the beneficiary is not a stranger. The beneficiary of these acts is the wife of the petitioner. It is the open proclamation which is in public domain by the petitioner himself that if M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de, but the wife of the petitioner. Application disposed off. X X X X Extracts X X X X X X X X Extracts X X X X ..... taka, who is also MLA from No.219 Varuna Assembly Constituency, U/s. 218 of the Bharatiya Nagarik Suraksha Sanhita, 2023, U/s 17A and S.19 of the Prevention of Corruption Act, 1988, for being actively involved in the Criminal Manipulations for Corrupt gains by Corrupt means, for himself & his family to enrich themselves illegitimately and illegally gaining Rs. Rs.55,80,00,700/-, at the cost of the State Exchequer. A Complaint/Information was made/given to the Karnataka Lokayukta Police at Mysore on 18th July 2024 and the same was followed up with additional information on 25-07-2024, for Cognizable offences under Section 173 of the Bharatiya Nagarik Suraksha Sanhita, 2023. (Copies attached). The illegal manipulations and corrupt steps taken at various stages, culminating in the Syphoning away and illegally gaining around Rs.55,80,00,700/-, is enumerated herein, for a better understanding of the need to grant sanction for prosecution, of Sri. Siddaramiah the CM of Karnataka. PREAMBLE On 25-08-2004, Sri.J.DEVARAJ Son of Sri. Ninga S/o Javara SOLD THE LANDS measuring 3 Acres & 16 Guntas, in Sy.No.464, of Kesere Village TO Sri. B.M. MALLIKARJUNASWAMY, the brother-in-law of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... against a loan of Rs.1000/-. A copy of the EC-Encumbrance Certificate (Hand written/entered) since 01-01-1959 to 31-12-2003 is enclosed herewith and marked as ANNEXURE-A-2, AND, a copy of the Registered document dated 13.08.1973 is enclosed herewith and marked as ANNEXURE-A-3. 3. The RTC (Hand written/entered) since 1981-82 indicates that the said lands were suddenly derived as ancestral property and, ONCE AGAIN in the in ownership & possession of Sri. Ninga S/o Javara, until the year 90-91. A copy of the RTC (Hand written/entered) since 1981-82 until the year 90-91 is enclosed herewith and marked as ANNEXURE-A-4. 4. Since the year 1996-97 the RTC (Hand written/entered) up to 1998- 99 indicates that the said lands were in the ownership and possession of J. Devaraj Son of Ninga alias Javara, transferred to J. Devaraj vide IHR 8/92-93. (ΑΝNEX A-2). A copy of the RTC (Hand written/entered) since 1996-97 up to 1998-99 is enclosed herewith and marked as ANNEXURE-A-5. NOTIFICATION OF LANDS: 5. On 20.08.1997, the lands measuring 3 Acres and 16 Guntas, in Sy.No.464, in Kesere Village, of Mysore District, claimed to be belonging to one Sri. Ninga S/o Javara was Not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 263 29.12.2003 Sri. Ramaswamy 284 05.11.2003 Sri Puttalingiah 287 06.01.2004 Smt. Padma 400 15.06.2004 Sri. Shivakumar 423 27.05.2004 Sri.Siddaramiah was the DCM of Karnataka. A copy of the Phani (Computerised land records), indicating the ownership of MUDA is enclosed herewith and marked as ANNEXURE-D. ILLEGAL SALE DEED 10. The EC-Encumbrance Certificate (Computerised) since 01-01-2004 to 10-07-2024 indicates that: On 25-08-2004, MUCH AFTER THE SAID LANDS WERE DISTRIBUTED DEVELOPED AND SEVERAL SITES WERE ALREADY DISTRIBUTED by 27.05.2004 and A FRAUDULENT SALE DEED was Executed, FALSELY DECLARING THE SAID LANDS AS Kushki/Agricultural lands by Sri. J.Devaraju, Smt.M.Sarojamma, Smt.D.Shoba, Sri.D.Dinakar Raj, Smt.D.Prabha, Smt.D.Prathiba D.Shashidhar which is Registered in Book 1, No.MYN-1-06088-2004-05, CD No.MYND22, Mysore North Sub-Registrar's office, in favour Sri. B.M. Mallikarjuna Swamy, the brotherin- law of Sri. Siddaramiah, for a Sale Consideration of Rs.5,95,000/- ONLY. 11. The seller Sri. J.Devaraju is the one who along with his brother Mallaiah had already eliminated all his rights by executing a Registered Deed 1982/68-69, d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... THE SAID LANDS WERE WITH MUDA, AND SEVERAL SITES WERE ALREADY SOLD/DISTRIBUTED and the SALE DEEDS were executed in favour of SEVERAL ALLOTTEES by MUDA, before 27.05.2004 itself. Name of Allottee Site No. Executed on Sri. Ramaswamy 263 29.12.2003 Sri. Ramaswamy 284 05.11.2003 Sri Puttalingiah 287 06.01.2004 Smt.Padma 400 15.06.2004 Sri.Shivakumar 423 27.05.2004 Sri.Siddaramiah was the DCM of Karnataka FRAUDULANT LAND CONVERSION 14. On 15-07-2005, after the Lands in question, were developed by the Mysore Urban Development Authority-MUDA, and SITES were ALREADY DISTRIBUTED to various allottees, Name of Allottee Site No. Executed on Sri. Ramaswamy 263 29.12.2003 Sri. Ramaswamy 284 05.11.2003 Sri Puttalingiah 287 06.01.2004 Smt.Padma 400 15.06.2004 Sri.Shivakumar 423 27.05.2004 Smt.Poornima 366 20.09.2004 Sri.Chennappa 398 19.12.2004 Sri.Shivanna 399 12.01.2005 Sri.Nischal Prakash 368 28.03.2005 Sri.Chotte Sab 396 13.04.2005 Sri.Purushotam Das 285 21.05.2005 Smt.Jayamma 422 31.05.2005 based on the Application dated 01-12-2004 for conversion of lands, that WERE FALSELY AND ILLEGALLY CLAIMED T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the then DC of Mysore Sri.G.Kumara Nayak- IAS (currently a MP from the Raichur Parliamentary Constituency), stating that he had visited the spot on 17-06-2005 (of the Kushki/Agricultural lands measuring 3 Acres and 16 Guntas, in Sy.No.464, in Kesere Village, Kasaba Hobli, Mysore Taluk) before according the Conversion. A copy of the CONVERSION ORDER dated 15-07-2005, the Thazildar's Spot Inspection Report dated 04-03-2005 AND the DC's Spot Inspection Report of 17-06-2005 are enclosed herewith and marked as ANNEXURE-G-1, G-2 & G-3 respectively. Sri.Siddaramiah was the DCM of Karnataka. NULL & VOID REGISTERED GIFT DEED: 16. On 20-10-2010, A GIFT DEED (dated 06-10-2010) was executed by B.M.Mallikarjuna Swamy in favour of his younger sister Smt.B.M.Parvathi W/o. Sri.Siddaramiah, which is entered in Book 1, Νο.ΜΥΝ-1-12432-2010-11, CD No. MYND252, Mysore North Sub-Registrar's office, on 20-10-2010. 17. The GIFT DEED WAS REGISTERED on 20-10-2010, after the LANDS WERE DEVELOPED by MUDA, into a residential layout, 'Devenaur Badavane 3rd Stage', and AFTER THE DEVELOPED SITES WERE ALREADY DISTRIBUTED and SALE DEEDS WERE ALREADY EXECUT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed herewith and marked as ANNEXUREK. 20. On 18.08.2014, when Sri.Sidaramiah was the Chief Minister of Karnataka, MUDA in response to the application dated 23.06.2014 by Sri. Siddaramiah's wife Smt. B.M.Parvathi, MUDA replied stating that, it was decided to derive at a market rate for the lands belonging to Smt.B.M.Parvathi W/o. Sri.Siddaramiah, OR IN THE ALTERNATIVE proposed to allot developed sites in a SIMILAR LAYOUT formed by MUDA, in a 40:60 Ratio. A copy of the reply by the Commissioner of MUDA to the applicant Smt. Parvathi on 18.08.2014, is enclosed herewith and marked as ANNEXURE-L. 21. On 11.02.2015, when Mr.Siddaramiah was the CM of Karnataka, the Urban Development Department issued a Notification Vide Order No: UDD 08 TTP 2014, Bangalore, Dated:11.02.2015, for an Amendment to Rule 3 of the Karnataka Urban Development Authorities (Allotment of sites in lieu of compensation for land acquired) Rules, 2009, BY WHICH the compensation Ratio was changed from 40:60 to 50:50. A copy of the Notification Vide Order No: UDD 08 TTP 2014, Bangalore, dated:11.02.2015, is enclosed herewith and marked as ANNEXURE-M. 22. With the Notification Vide Order No: UDD 08 TTP 201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d". 26. On 20.03.2021, interestingly Sri.S.Yatindra - MLA from the Varuna Constituency and son of Sri.Siddaramiah was present and participated in the proceedings of MUDA held on 20.03.2021, which discussed the issue of the compensatory land/sites to be allotted to the Applicant Smt.B.M.Parvathi (W/o. former CM Sri. Siddaramiah), in lieu of the 13,759 Sq. Mts of land (1,48,104 Sq.fts) used by MUDA and as a request for the deferment/postponement of a decision on the subject relating to Smt. Parvathi "was sought for by the land lord", explicitly revealing that it was Mr. Yatindra the son of the alleged land lord, who has made the request as a member of the family. The family which also included the then former CM, Sri.Siddaramiah. A copy of the subject discussed and decided by Council of MUDA held on 20.03.2021, is enclosed herewith and marked as ANNEXURE-P. 27. On 25.10.2021, when Mr.Siddaramiah was the Leader of the Opposition in the KLA, (and his son S.Yatindra was a MLA), his wife Smt.B.M.Parvathi ONCE AGAIN made an application to MUDA, seeking Compensatory Alternative Developed Sites, in lieu of the 3 Acres & 16 Guntas, in Sy.No.464, of Kesere Village, allegedly belongin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rked Market Value at the rate of Rs. 15,000/- per Sq.fts is enclosed herewith & marked as ANNEXURE-T. 31. Interestingly and most intriguingly, the Allotment Letters issued on 05.01.2022 to Smt.Parvathi W/o.Sri Siddaramiah and Mother of Sri.S. Yatindra-MLA, mentions that the Allotment is done in accordance with the decision taken during the Meeting of the MUDA Council, held on 20.11.2020. A copy of the Allotment Letters, issued on 05.01.2022 is enclosed herewith and marked as ANNEXURE-U. 32. Interestingly and most intriguingly, Sri.S.Yatindra- MLA and Son of both Sri.Siddaramiah and Smt.Parvathi was present during the Council Meeting of MUDA held on 20.11.2020. The Minutes of the Meeting of the MUDA Council, held on 20.11.2020 is allegedly signed by Sri.D.B.Natesh the Commissioner and Sri.H.V.Rajeev the Chairman of the MUDA. A copy of the Minutes of the Meeting of the MUDA Council, held on 20.11.2020 is enclosed herewith and marked as ANNEXURE-V. 33. WHEN THE DECISION TO ALLOT THE COMPENSATORY SITES TO Smt. Parvathi HAD ALREADY BEEN TAKEN ON 20-11-2020: (a) WHERE WAS THE NEED FOR, the subject regarding the Allotment of the Compensatory Sites to Smt. Parvathi being ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er of MUDA as on 03-09-98, the Thazildar of Mysore as on 04-03- 2005 Sri. Malige Shanker, the then Revenue Inspector on 04.03.2005, the Village Accountant as on 04.03.2005, the Surveyor as on 04-03-2005, the then Sub-Registrar's of the Mysore North Sri.S.K.Siddiah from 05-05-2003 to 18-11-2004, Sri.K.S.Madhaviah from 06-03-2002 to 20-12-2004 and Sri.Chickanna from 21-07-2002 to 19-11-2004, the then DC Mysore as on 17-06-2005 Sri.G.Kumar Nayak-IAS (currently the MP form Raichur District), and the then DC of Муsore as on 15-07-2005 Sri.S.Selvakumar-IAS, Sri. J.Devaraju, Smt.M.Sarojamıma, Smt.D.Shoba, Sri.D.Dinakar Raj, Smt.D.Prabha, Smt.D.Prathiba and D.Shahidhar, along with other connected and involved persons, deserves to be investigated by a competent and independent Agency, such as the Lokayukta Police, to unravel the truth, in Public Interest. Wherefore, it is requested of your good office, to kindly Grant Sanction for the Prosecution of Sri.Siddaramiah, for offences under Section 7, Section 9, Section 11, Section 12 and Section 15 of the Prevention of Corruption Act, 1988 AND Section 59, 61, 62, 201, 227, 228, 229, 239, 314, 316(5), 318(1), 318(2), 318(3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e petitions one from Snehamayi Krishna, a social activist, the 4th respondent and the other from Pradeep Kumar S.P., the 5th respondent have been received at his office with the same allegation. The show cause notice is issued only on the petition presented by the 3rd respondent/T.J.Abraham. The learned senior counsel would contend that, this is in violation of the principles of natural justice, as the order makes reference to two petitions, but show cause notice is issued only on one petition. 5.1. The Governor receives the petition on 26-07-2024. He issues show cause notice to the Chief Secretary and the petitioner on the very same day. Therefore, it suffers from want of application of mind. 5.2. He would further contend that the Governor has completely ignored the reply given by the Cabinet - Council of Ministers while according sanction. He has completely ignored the reply given by the petitioner to the show cause notice and by one sentence, observes that he is not satisfied or it cannot be taken note of. 5.3. The Governor relies on a particular judgment of the Apex Court in the case of MADHYA PRADESH POLICE ESTABLISHMENT v. STATE OF MADHYA PRADESH [(2004) 8 SCC 788] which, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder emanating from a high office. The order per se, need not contain elaborate reasons. The reasons in the order must be those which are culled out from the file. He would, therefore, place the entire file before the Court. 6.1. The order of the Governor did not spring like removing a rabbit from the hat. It bears complete application of mind. He would take this Court through the file notings in the original file to contend that the Governor's consideration prior to passing of the impugned order is threadbare. Every point which has been made in the reply to the show cause notice by the petitioner or by the Cabinet has been completely taken note of. 6.2. He would contend that the judgment on which the learned senior counsel for the petitioner relies on in NABAM REBIA, has in fact affirmed M.P.POLICE ESTABLISHMENT supra and has not distinguished it. 6.3. He would contend that under Article 163 of the Constitution of Inida, no doubt the Governor has to act with the aid and advice of the Council of Ministers. Aid and advice, in the case at hand, cannot be that the Council of Ministers who are appointed by the Governor on the advice of the Chief Minister, would recommend anything ag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... irects spot inspection and report. Two people are said to have inspected the property and given a report that agricultural status of the land still subsists. 7.2. He would submit that in the land that is converted and sites are formed where from the agricultural activities can spring. The Deputy Commissioner also is said to have inspected the property, noted that it is an agricultural land and grants conversion. 7.3. After conversion is granted, the land is gifted to the wife of the petitioner in 2010. From here begins the process of claiming compensation. During the period of gift, the petitioner was the leader of the opposition. When the wife of the petitioner made a clam for compensation by submission of representation to MUDA in the year 2014 the petitioner was the Chief Minister. The resolution for grant of compensation is taken by the members of MUDA. Decision is taken therein to amend the Rule. The rule is amended. The rule is with regard to compensatory alternate site. Notings and correspondences galore and finally 14 sites are granted to the wife of the petitioner. 7.4. Immediately after the grant, the concerned Rule is withdrawn and an order is passed by Government tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es in the lands belonging to her and therefore, in terms of extant Rules she is entitled to compensation or alternate sites. 8.3. In the year 2015 a notification comes to be issued changing the Rule from **60:40 to **50:50. 50% of the acquisition should be compensated by way of alternate sites. It is in this, the wife of the petitioner gets 14 sites worth Rs. 56/- crores, in the midst of prime land of Mysore. He would submit that the Court should take note of three figures - one Rs. 350/- offset price that is paid; Rs. 3,56,000/- compensation determined by way of an award and whooping Rs. 56/- crores worth property granted to the wife of the petitioner by way of 14 sites in an upscale area of Mysore. 8.4. With regard to the role of the petitioner, the learned senior counsel would submit that throughout, on and off the petitioner was in power or leader of the opposition. It is not that he was not knowing this even to yield any influence. He would emphatically submit that the beneficiary is not a stranger but the wife and brother-in-law of the petitioner. 9. Learned senior counsel Sri K.G. Raghavan, who took over from the learned senior counsel Sri Maninder Singh, albeit on a diff ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g the 5th respondent would toe the lines of other learned counsel who have made their submissions. He would seek to place reliance on certain judgments apart from the ones that are relied upon by the respondents. Barring this, he would adopt the submissions insofar as application of mind is concerned to the submissions made by the learned Solicitor General and to the facts of both the learned senior counsel Sri Maninder Singh, the learned senior counsel Sri K.G.Raghavan and the learned counsel Sri Raghunatha Reddy. REJOINDER SUBMISSIONS: 12. The learned senior counsel Sri Abishek Manu Singhvi appearing for the petitioner would trade lengthy rejoinder submissions. He would reiterate that the Governor has not applied his mind at all to the facts, the decision of the cabinet that was conveyed to the Governor nor the reply of the petitioner to the show cause notice. He would take this Court again threadbare to the order passed by the Governor. 12.1. It is his submission that the Governor records that there is apparent bias on the part of the cabinet to have declined or recommended rejection of the approval or sanction that was sought against the petitioner. He would submit that ima ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der which suffers from blatant non-application of mind eschewing relevant consideration and taking note of irrelevant consideration cannot but be termed to be perverse and on the said basis grant of an approval under Section 17A of the Act, that too for prosecution of the petitioner/Chief Minister is a frolicsome act on the part of the Governor. For these reasons, he would seek quashment of according of approval. Insofar as sanction is concerned, the learned senior counsel would submit that the 2nd respondent has virtually conceded that the observation of sanction in the impugned order is an error. Therefore, he would not delve deep into the issue of sanction or the offence under the BNSS. 13. The learned senior counsel Sri Ravivarma Kumar again representing the petitioner would add that all the submissions made by the learned counsel for the respondents on the facts of the matter are completely erroneous. It is his submission that the land vested with Devaraju, one of the sons of Linga. Devaraju had applied for de-notification. De-notification was made. After denotification, the land still remained with Devaraju. In the lay-out plan of Devanuru Badavane these lands are shown to b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lace reliance upon the Standard Operating Procedure notified by the Ministry of Home Affairs for conduct of preliminary enquiry, to buttress his submission that the investigating officer should conduct a preliminary enquiry and then seek approval from the hands of the Competent Authority. In effect, he would seek the order of the Governor to be set aside for all the aforesaid reasons, as also the reasons projected by the learned senior counsel appearing for the petitioner. CLARIFICATORY SUBMISSIONS BY THE LEARNED COUNSEL FOR RESPONDENT NO.3: 14. The learned counsel for respondent No.3 would vehemently submit that character assassination of the complainant cannot mask the real issue before the Court. Even on the antecedents of the 3rd respondent, he would contend, that the cost of Rs. 25/- lakhs that was imposed by the Apex Court did not remain the cost. It was reduced to Rs. 1,00,000/-. The petitioner projects as if the cost imposed is Rs. 25/- lakhs. Insofar as other complaint made by one D.Sudha, he would contend that the complainant had complained against corrupt activities of D. Sudha which led to registration of crime against her. As a counter-blast the complaint for offenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g in the Department of Public Instructions. He gives an affidavit that he is jobless. Therefore, since then the illegality sprung, the family of the Chief Minister might have come into the picture in 2004. Therefore, for the events from 1992 up to 2004 Devaraju is an accused. 16. All the learned senior counsel both for the petitioner and the respondents have relied on plethora of judgments rendered by the Apex Court and this Court. Noting them here and at the appropriate places would only bulk the judgment, as some of them overlap with the judgments placed on record by each of them. Therefore, they would all bear consideration qua their relevance at the appropriate stage of the order. 17. I have given my anxious consideration to the submissions made by the respective learned counsel and have perused the material on record. In furtherance whereof, the following issues would arise for my consideration: ISSUES: (1) Whether the petitions before the Governor and the complaints before the concerned Court were justified in the fact situation? (2) Whether the approval under Section 17A of the Act is mandatory in the teeth of facts? (3) Whether Section 17A of the Act requires only a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the preliminary notification. The compensation for acquisition of the land of Ninga, in Sy.No.464 of Kesare Grama was determined at ₹ 3,24,700/-. Since nobody came forward pursuant to the award notice, the award amount was deposited in the jurisdictional civil Court. 19. I now deem it appropriate to notice the preliminary notification and the award notice insofar as subject land is concerned. They read as follows: Preliminary Notification After the issuance of the preliminary notification, it is an admitted fact that a final notification comes to be issued on 20-08-1997. Pursuant to the final notification, the amount of compensation was determined. A general award was passed on 31-10-1997 which was approved by the Deputy Commissioner on 12-03-1998 and the award notice later was issued on 30-03-1998. The award notice reads as follows: Award notice The afore-quoted notice called upon the owner of the property to produce the RTC, E.C. for the previous 3 years and in the **event of failure of such production, possession would be taken under Section 16 of the Land Acquisition Act, 1894. Therefore, 3 events happen. On 18-09-1992 the preliminary notification is issued in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... twithstanding the fact that the amount of award was also deposited before the jurisdicational civil Court, the land comes to be denotified. This is, on the face of it, an illegal act on the part of the State. The order of denotification dated 18-05-1998 reads as follows: Notwithstanding the aforesaid denotification, an individual award is determined in favour of the khatedar on 15-02-1999. The determination of individual awarded dated 15-02-1999 reads as follows: The individual award notice would clearly indicate that despite Mallaiah or Mylaraiah who has received the notice on 18-04-1998 has not come forward to claim compensation, therefore in terms of Section 31(2) of the Land Acquisition Act, the amount is deposited before the jurisdictional civil Court. Here lies the choke. If the land had been denotified, why at all did MUDA, after such denotification determine individual award. The MUDA does not stop at that, continues to form the layout and distributes sites in favour of allottees. From 1998 till 31-12-2003, the owner of Sy.No.464 is shown as MUDA. The Encumbrance Certificate also reflects the name of MUDA. Upto the date of acquisition, it reflected the name of Mylaraiah. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ome up and the land has been dropped from acquisition. It is unundertandable, what did they inspect, as the very existence of agricultural land then was in doubt as by then, MUDA had formed sites and distributed sites to the allottees. What conversion from agriculture to residential was inspected is a mystery. A spot inspection actually took place or the report was drawn sitting in the airconditioned chambers, is to be enquired into. Even then, an official memorandum is issued granting conversion on 15-07-2005 by the Deputy Commissioner. It reads as follows: Thus, the brother-in-law of the petitioner purchases the so called agricultural land and gets it converted from agricultural to non agricultural purposes on the score that the land was kept for residential purpose. It is necessary here to again observe that MUDA had already distributed sites to the allottees in this very property. 22. The story fast forwards by 4 years, comes 2010. On 06-10-2010 the brother-in-law of the petitioner executes a gift deed in favour of the wife of the petitioner. The Gift Deed reads as follows: The Gift Deed again narrates the history of the brother-in-law of the petitioner coming into possessio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ules, namely:- RULES 1. Title and commencement:- (1) These rules may be called the Karnataka Urban Development (Allotment of sites in lieu of compensation for land acquired) (Amendment) Rules, 2015. (2) They shall come into force from the date of their final publication in official Gazette. 2. Amendment to Rule 3:- In rule 3 of the Karnataka Urban Development Authorities (Allotment of sites in lieu of compensation for land acquired) Rules, 2009, - (i) The words and figures "Notwithstanding anything contained in the Karnataka Land Acquisition Rules, 1965 and" shall be omitted; (ii) For the words and figures "Land Acquisition Act, 1984" occurring in two places, the words, figures and brackets "Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (Central Act 30 of 2013)" shall be respectively substituted; and (iii) in clause (b), for the figures "40", the figures "50" shall be substituted. By order and in the name of the Governor of Karnataka R.RAJENDRA Under Secretary to Government, Urban Development Department." (Emphasis supplied) The compensation was earlier in the ratio of 60:40 i.e., 60% to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2 and the decision of the MUDA dated 20-11-2020. Although the prevalent Market Value in Vijayanagar is between 10 & 12 thousand, calculating the MARKET RATE at a rate of approximately Rs.15,000/- Per Sq. Feet, as being demanded Mr.Siddaramiah in public. Sl. No. Allottee Site No. Measuring Location Guidelines Value / & total cost for total Sq.Mts Market Rate/Sq.fts & Total cost for total Sq.Fts 1 Smt.Parvathi B.M 25 15 X 24=360 Mts 3875.01 Sq.Fts Vijaynagar, 3rd Stage, 'C' Block Rs.24,000/- Rs.86,40,000/- Rs.5,81,25,150/- 2 Smt.Parvathi B.M 331 12 x 18 =216 Mts 2325 Sq.Fts Vijaynagar, 3rd Stage, 'D' Block Rs.24,000/- Rs.51,84,000/- Rs.3,48,75,000/- 3 Smt.Parvathi B.M 332 12 x 18 =216 Mts 2325 Sq.Fts Vijaynagar, 3rd Stage, 'D' Block Rs.24,000/- Rs.51,84,000/- Rs.3,48,75,000/- 4 Smt.Parvathi B.M 213 15 X 24=360 Mts 3875.01 Sq.Fts Vijaynagar, 3rd Stage, 'E' Block Rs.24,000/- Rs.86,40,000/- Rs.5,81,25,150/- 5 Smt.Parvathi B.M 214 15 X 24=360 Mts 3875.01 Sq.Fts Vijaynagar, 3rd Stage, 'E' Block Rs.24,000/- Rs.86,40,000/- Rs.5,81,25,150/- 6 Smt.Parvathi B.M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the petitioner by issuance of 14 allotment letters and khatas are changed by MUDA in favour of the wife of the petitioner for all 14 sites. Therefore, the wife of the petitioner becomes the owner of 14 sites value. Its value is as indicated hereinabove. Then comes 14 sale deeds registered in faovur of the petitioner on 12-01-2022. The aforesaid facts are all borne out of records. All these things have happened between 1996 to 2022. This is the period in which the petitioner was at the helm of affairs twice; a law maker twice; the Chief Minister once. 25. From 1996 to 1999 the petitioner was the Deputy Chief Minister of Karnataka State. Again in 2004 and 2005 he was the Deputy Chief Minister; from 2013 to 2018 he was the Chief Minister and between 2018 and 2023 son of the petitioner was an MLA. Therefore, intermittently on and off, the petitioner has been at the helm of affairs. Notwithstanding the aforesaid period of the petitioner at the helm of affairs, the vehement contention of the petitioner is that he made no recommendation nor has signed any document nor has any connection to the transaction. It is rather difficult to accept that the beneficiary of the entire transaction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er. When things stood thus, the 3rd and 4th respondents file their respective private complaints before the Special Court constituted exclusively to deal with criminal cases against MPs and MLAs. It is then, the 3rd respondent knocks at the doors of the Governor seeking approval/sanction to prosecute the petitioner as obtaining under Section 17A of the Act. The facts narrated would clearly justify the complaints/petitions by the complainants. The issue is answered accordingly. Issue Nos.2 & 3: (2) Whether the approval under Section 17A of the Act is mandatory in the teeth of facts? & (3) Whether Section 17A of the Act requires only a Police Officer to seek approval from the Competent Authority? Since issues 2 and 3 are intertwined, the two are considered together. It therefore becomes necessary to go back to the genesis of Section 17A of the PC Act. GENESIS OF SECTION 17A OF THE PC ACT: 28. The Prevention of Corruption Act (Amendment Bill) when it was first introduced in the year 2014, it did not contain any clauses akin to Section 17A. The Standing Committee of Rajya Sabha on Personnel, Public Grievances, Law and Justice and the Law-Commission had proposed certain amendmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ployed, at the time when the offence was alleged to have been committed, in connection with the affairs of the Union, of that Government; (b) in the case of a person who is or was employed, at the time when the offence was alleged to have been committed, in connection with the affairs of a State, of that Government; (c) in the case of any other person, of the authority competent to remove him from his office, at the time when the offence was alleged to have been committed: Provided that no such approval shall be necessary for cases involving arrest of a person on the spot on the charge of accepting or attempting to accept any undue advantage for himself or for any other person: Provided further that the concerned authority shall convey its decision under this section within a period of three months, which may, for reasons to be recorded in writing by such authority, be extended by a further period of one month." In terms of the above extracted provision of law introduced by an amendment, no Police Officer shall conduct any enquiry or inquiry or investigation into any offence alleged to have been committed by a public servant under the Prevention of Corruption Act, wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mitted to conduct any enquiry or inquiry or conduct investigation into any offence done by a public servant where the offence alleged is relatable to any recommendation made or decision taken by the public servant in discharge of his public functions without previous approval, inter alia, of the authority competent to remove the public servant from his office at the time when the offence was alleged to have been committed. In respect of the public servant, who is involved in this case, it is clause (c), which is applicable. Unless, therefore, there is previous approval, there could be neither inquiry or enquiry or investigation. It is in this context apposite to notice that the complaint, which has been filed by the petitioners in Writ Petition (Criminal) No. 298 of 2018, moved before the first respondent CBI, is done after Section 17-A was inserted. The complaint is dated 4.10.2018. Para 5 sets out the relief which is sought in the complaint which is to register an FIR under various provisions. Paras 6 and 7 of the complaint are relevant in the context of Section 17-A, which read as follows: "6. We are also aware that recently, Section 17-A of the Act has been brought in by way ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the way of the first respondent in Writ Petition (Criminal) No. 298 of 2018 from taking action on Ext. P-1, complaint in accordance with law and subject to first respondent obtaining previous approval under Section 17-A of the Prevention of Corruption Act." The Apex Court has considered the importance of previous approval of the competent authority in the afore-extracted judgment. 18. Section 17A casts an obligation of application of mind on the part of the Competent Authority in three situations. The Section makes it clear that no officer shall conduct any enquiry or inquiry or investigation without previous approval. Therefore, the approving authority will have to look into the materials, apply its mind in all the three contingencies i.e., enquiry or inquiry or investigation. Though, enquiry and inquiry are often used interchangeably, there exists a difference between the two. Etymologically, the source of both enquiry and inquiry could be the same as 'en' is derived from French and 'in' is from Latin. Inquiry has a formal and official ring to it. Enquiry is informal and can be unofficial. Enquiry could even mean, to question; Inquiry is a formal investigation; investig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e police would come into picture only after referring the matter for investigation. If the matter is referred for investigation, the jurisdictional Police or to whom the reference is made, would have no choice but to register the crime and once the crime is registered, investigation has to commence. Section 17A, in these circumstances, would be rendered redundant. Therefore, it is necessary that whoever complains against a public servant by registering a private complaint, it is his burden to seek approval from the hands of the Competent Authority before the matter is referred under Section 156(3) of the Cr.P.C. or Section 175 of the BNSS, failing which the protective filter to a public servant would have no meaning. It is the aforesaid concept that led this Court to pass an order in DR. ASHOK V. v. STATE. It is for this reason the complainant would approach the Competent Authority, in the case at hand the Governor seeking approval under Section 17A of the Act so that the private complaint would be referred for investigation. Therefore, no fault can be found with the complainant approaching the Governor/Competent Authority seeking approval prior to any reference being made by the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... referring the matter for investigation, should not be entertained by the Magistrate/Sessions Judge, as the case would be. 14. The case at hand forms a classic illustration of misuse and abuse of law by the 2nd respondent/ complainant. If the 2nd respondent had preferred a complaint before the Karnataka Lokayukta, the complaint would have been forwarded to the competent authority seeking permission under Section 17A to register a crime and crime would have been then registered only after prior approval from the competent authority. Invoking Section 200 of the Cr.P.C., the complainants or complainant in the case at hand are seeking to circumvent the rigor of Section 17A of the Act. If this practice is permitted, it would only open gates for frivolous and vexatious litigation by the complainants. 15. In the light of the aforesaid analysis and the unfolding of issues, it becomes necessary to direct the learned Sessions Judges/Special Court who would entertain complaints against public servants filed by private persons alleging offences punishable under the provisions of the Prevention of Corruption Act, 1988 even if it is an amalgam not to entertain such complaints if they do no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce officer to seek approval from the hands of the Competent Authority, in a private complaint. It is the complainant, whomsoever it is, should discharge the duty of seeking approval from the hands of the Competent Authority, a caveat, only in a private complaint registered under Section 200 of the Cr.P.C. or under Section 223 of the BNSS. Issue Nos.4 & 5: (4) Whether the order of the Governor suffers from want of application of mind? & (5) Whether it would suffice for reasons to be recorded in the file of the decision making authority and the same culled out in parts in the impugned order? Since both the issues are intertwined, they are considered together. PROCEEDINGS BEFORE THE GOVERNOR: 32. As observed hereinabove, the complainant/3rd respondent approaches the jurisdictional Police, no action is taken for 7 days, approached the Commissioner, no action is taken, then he seeks to knock at the doors of the Governor and simultaneously files a private complaint before the Special Court invoking Section 200 of the Cr.P.C. In terms of law laid down by this Court in ASHOK supra and the circular issued by this Court, the 3rd respondent submits a petition before Governor on 26-0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itted for further orders. Sd/- (R.Prabhushankar) (07) Hon'ble Governor] (08) I have heard Sri T.J.Abraham in person and gone through the petition and supporting documents submitted by him. Prima facie, I am of the view that there might be irregularities and misuse of power. Hece, issue show cause notice to Sri Siddaramaiah, Chief Minister calling explanation within 7 days. Sd/- (Thaawarchand Gehlot) Sanction for prosecution (08) As per the order of the Hon'ble Governor, draft copy of the letter is placed in the file for kind perusal and approval. Sd/- 26/07 (09) (W.S) - On training. (10) Special Secretary Sd/- 26/07/2024 (11) Hon'ble Governor Sd/-26-07-2024. (12) As per the above approval, fair copies are submitted for kind signature. Sd/- 26-07-2024 (13) Hon'ble Governor Sd/- 26-07-2024 (Emphasis supplied) Noticing that the allegations were grave and on hearing the 3rd respondent and having gone through the petition and the supporting documents, the Governor was of the prima facie view that there may be irregularities and misuse of power. Therefore, directs issuance of show cause notice to the petitioner calling for explanation withi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as follows: i. The Hon'ble Governor ought to have, under the present set of facts and circumstances, acted only on the aid and advise of the council of ministers and not in his discretion. ii. The Hon'ble Governor while proceeding to issue the show cause notice has failed to consider the material available on record. The Governor ought to have taken into consideration the reply submitted by the Chief Secretary dated 26-07- 2024, received by him at around 6.30 p.m. in person on the same day. It is to be noted that the Chief Secretary in his reply has, inter alia, highlighted that direction contained in Governor's letter dated 15-07-2024 was already acted upon by way of constitution of a Judicial Commission of Enquiry under the Chairmanship of Justice P.N.Desai, vide Government order of 14.07.2024. The issuance of show cause notice, without consideration of these and all other relevant material available on the record, suffers from total non-application of mind. iii. The Hon'ble Governor has failed to take note of the fact that the application for sanction dated 26.07.2024 suffers from serious legal infirmities and was not maintainable on a reading of the provision is of Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s including the ones referred to supra. viii. A reading of the show cause notice, more so the finding by the Governor that "on perusal of the request, it is seen that the allegations against you are of serious nature and prima facie seem plausible" leads to an undeniable conclusion that there is pre-judging of the issue, disregarding the report of the Chief Secretary dated 26-07-2023. ix. The entire sequence of events and the admitted facts and circumstances based on the available records lead to an unequivocal conclusion that there is gross misuse of the constitutional office of the Governor and a concerted effort is being to destabilize a lawfully elected majority government in Karnataka for political considerations. Therefore, under Article 163 of the Constitution, the Council of Ministers, for all the aforesaid facts and reasons, strongly advises the Hon'ble Governor to withdraw the notice dated 26-07- 2024 issued by him to the Hon'ble Chief Minister, based on the petition and addendum dated 26-07-2024, filed by one T.J. Abraham, and to proceed forthwith to reject the said application by denying prior approval and sanction as requested by the petitioner Abraham. Sd/- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ect the said application for sanction". The decision of the Council of Ministers and the entire file was placed before me for my information, by the Urban Development Department since I had recommended to place the matter before the Council of Ministers. I have gone through the entire records as well as the detailed decision of the Cabinet. 4. I would to categorically establish, for your kind perusal and judicious action, as to why the notice issued by you is grossly illegal, unconstitutional, patently lacking in jurisdiction, suffers from total non-application of mind and ultra vires the provisions of Section 17A, 19 Prevention of Corruption Act and Section 218 BNSS. 5. That, being the competent authority to grant sanction under the provisions of the Prevention of Corruption Act, 1988, insofar as the Ministers and the Chief Minister is concerned, the fundamental question that would arise is whether the Governor in such matters would totally bypass the mandate of Article 163 of Constitution of India and the various judgments of the Hon'ble High Courts and the Hon'ble Supreme Court of India. Is the Hon'ble Governor jurisdictionally competent to directly receive application ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plication for sanction was also premature since the applicant had filed a complaint to the Lokayukta Police on 18-07-2024 and thereafter had also mot followed the mandatory procedure as laid down by the Hon'ble Supreme Court in Priyanka Srivastava in (2015) 6 SCC 287 and Lalitha Kumari (2014) 2 SCC 1. v. You have failed to take note of the fact that the entire allegations made by the applicant does not reveal any offence punishable under the provisions of the Prevention of Corruption Act, 1988 or the BNS 2023. vi. You have Governor failed to take note of the fact that T.J. Abraham comes with criminal antecedents having criminal case of blackmail and extortion registered against him and his conduct in misusing the public interest jurisdiction has also been frowned upon by the Hon'ble Supreme Court, levying ₹25 lakh as costs on him. His acts are politically motivated and lacks bona fides and suffers from factual and legal mala fides. vii. You, in issuing the show cause notice, have acted in undue haste, throwing to wind all procedural requirements. The fact that the Governor has proceeded to issue the notice on the very same day as he received the petition and on a pet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5. The Chief Secretary has submitted the Cabinet decision dated 1-08-2024 along with enclosures. The Cabinet note is of 91 pages long with relevant copies of the judgments and legal opinion in reply to the show cause notice dated 26-07-2024 issued to Hon'ble Chief Minister (Received at 10-00 p.m. on 1.08.2024 in this secretariat). 16. Further, Hon'ble Chief Minister has submitted his reply to the show cause notice dated 26-07-2024 along with legal opinion and relevant records which runs through 60+ odd pages. (Received at 3.00 p.m. on 04-08-2024). 17. The State Cabinet for the facts and reasons mentioned in the Cabinet decision has strongly advised the Hon'ble Governor to withdraw the notice dated 26-07- 2024 issued to the Hon'ble Chief Minister based on the petition and addendum dated 26-07-2024, filed by one T.J. Abraham, and to proceed forthwith to reject the said application by denying prior approval and sanction as requested by the petitioner Abraham. 18. The Hon'ble Chief Minister in his reply has requested to peruse his reply, as well as the advice rendered by the Cabinet, vide its resolution dated 1-08-2024, and to withdraw the notice issued to him and to deny p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prosecution is placed below the file 26. As directed, the file along with the above details, documents and comparative statements, dictated notes by Hon'ble, is placed before the Hon'ble for further necessary orders. Sd/- (R.Prabhushankar) Special Secretary to Governor 16-08-2024 Hon'ble Governor. 27. Petitions received from Sri T.J. Abraham dated 26.07.2024 (page Nos. 01-240) & clarification dated 29-07-2024 (page nos. 247-275) and petition with additional documentation dated 06-08-2024 (page nos.694-824), petition from Sri Pradeep Kumar S.P. dated 14-08-2024(page Nos. 686-1150), and petition from Snehamayi Krishna dated 5-07-2024 (page nos. 826-866) requesting grant of sanction for prosecution in respect of irregularities conducted and corrupt practices adopted by Shri Siddaramaiah, Hon'ble Chief Minister of Karnataka concerning allotment of alternative sites by Mysore Urban Development Authority ("MUDA") under various sections of PC, Act, 1988 and BNSS, 2023 has been perused. 28. In view of the allegations and on prima facie perusal of the petitions for grant of sanction for prosecution and materials in support of the allegations, a show cause notice dated 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all other relevant material available on the record, suffers from total non-application of mind. 30.3 The Hon'ble Governor has failed to take note of the fact that the application for sanction dated 26.07.2024 suffers from serious legal infirmities and was not maintainable on a reading of the provision is of Section 17A, 19 of the Prevention of Corruption Act, 1988 and Section 218 of the Bharatiya Nagarik Suraksha Sanhita, 2023 along with settled legal position, as envisaged under the judgments referred to in the cabinet note. An application for previous approval under Section 17A of the Prevention of Corruption Act, 1988 can be made only by Police Officer and not private person. 30.4 The Hon'ble Governor failed to take note of the fact that the entire allegations made by the applicant do not reveal any offence punishable under the provisions of the Prevention of Corruption Act, 1988 or the BNSS 2023. 30.5 A reading of the show cause notice, more so the finding by the Governor that "on perusal of the request, it is seen that the allegations against you are of serious nature and prima facie seem plausible" leads to an undeniable conclusion that there is pre-judging of the i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Chief Minister and the decision of Council of Ministers is affected by the apparent bias. As regards the application of doctrine of aid and advise is concerned, this has been conclusively settled in the State of Maharashtra v. R.S. Naik AIR 1982 SC 1249 that sanction to prosecute the Chief Minister is the exclusive function of the Governor to be exercised by him in his discretion followed by the decision in Dr. J.Jayalalitha v. Dr. Channa Reddy (1995) 2 MLJ 187, wherein it was further amplified that it is erroneous to say that the view of the Supreme Court was based on a concession made by counsel and a perusal of the relevant part of the judgment shows that the Court has expressed its opinion that such concession was rightly made. 31.4 In the present matter, the allegations and the materials in support of the allegations would prima facie indicate that the said land was given to SC person by due course of law. The records of the said land was transferred from the father to childrens and again from childrens to father, this mystery was not considered by the State Cabinet. When the notification for land acquisition issued and the de-notification order was issued, Sri Siddaramai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e is a potential big ticket scam in the allotment of sites by MUDA does not inspire much confidence. It is well settled legal principle that the person against who, allegations are made, should not be empowered to decide the course of action. Even after such grave allegations being involved in the present matter and the fact that the materials prima facie support the allegations, therefore, the decision taken by the Council of Ministers is irrational as even after the appointment of high-level single member inquiry committee on such serious allegation the council of Ministers do not consider the entire material in support of the allegation. 31.6 The subject of binding of the advice of the Council of Ministers for Governor and discretionary power of the Governor during special circumstances is well discussed and decided in the case of Madhya Pradesh Police Establishment v. State of Madhya Pradesh, (2004) 8 SCC p.788 at pages 802, 805, the five Judges bench of Supreme Court has held that "If on these facts and circumstances, the Governor cannot act in his own discretion there would be a complete breakdown of rule of law inasmuch as it would then be open for Governments to refuse s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it compulsory that the previous sanction is necessary to file a private complaint in the Court of Law by private persons. 31.8. In view of the aforesaid it emerges that the present situation amounts to peril to democratic principles and therefore, requires independent application of mind and my subjective satisfaction and objective assessment of the facts and materials provided. 31.9 Since the sanction is sought against the Chief Minister himself, the surrounding circumstances of placing the show cause notice dated 26-07-2024 before the Cabinet and the decision of the Cabinet advising me to withdraw the notice, would not inspire confidence to act on such advice of the Cabinet. 31.10 Upon perusal of the petition along with the materials in support of the allegations in the petitions and subsequent reply of Sri Siddaramaiah and the advice of the State Cabinet along with the legal opinion, it seems to be that there are two versions in relation to the same set of facts. It is very necessary that a neutral, objective and non-partisan investigation should be conducted, I am prima facie satisfied that the allegations and the supporting materials disclose commission of offences. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... office has received the resolution of the Cabinet dated 1-08-2024 on 1-08-2024. My office has also received the reply of Shri Siddaramaiah dated 3.08.2024, denying the allegations along with certain documents on 4-07-2024. 04. It is seen from the decision taken by the Council of Ministers that a committee under the chairmanship of Shri Venkatachalapathy, IAS was constituted to look into the present matter. However, the Government upon considering the facts of the present matter as reported in the media/newspapers appointed a high-level single member inquiry committee under the 'Commission of Inquiry Act, 1952'. It appears from the terms of reference of the highlevel single member inquiry committee that there are serious allegation involving illegal allotment of alternative sites, illegal allotment of land and irregularities in allocation of land. Further, the constituting of a committee under an IAS officer and immediately constituting one more committee under a retired Judge of the High Court and the Governments own acceptance that there is a potential big ticket scam in the allotment of sites by MUDA does not inspire much confidence. It is well settled legal principle that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e advice of the Council of Ministers for Governor and discretionary power of the Governor during special circumstances is well discussed and decided in the case of Madhya Pradesh Police Establishment v. State of Madhya Pradesh, (2004)8 SCC p.788 at pages 802, 805, the five Judges Bench of Supreme has held that "If on these facts and circumstances, the Governor cannot act in his own discretion there would be a complete break- down of Rule of law inasmuch as it would then be open for Governments to refuse sanction in spite of overwhelming material showing that a prima facie case is made out. If, in cases where prima facie is clearly made out, sanction to prosecute high functionaries is refused or withheld, democracy itself will be at stake. It would then lead to a situation where people in power may break the law with impunity safe in the knowledge they will not be prosecuted as the requisite sanction will not be granted." 10. Upon perusal of the petition along with the materials In support of the allegations in the petitions and subsequent reply of Sri Siddaramaiah and the advise of the State Cabinet along with the legal opinion, it seems to me that there are two versions in rela ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his discretion. (2) If any question arises whether any matter is or is not a matter as respects which the Governor is by or under this Constitution required to act in his discretion, the decision of the Governor in his discretion shall be final, and the validity of anything done by the Governor shall not be called in question on the ground that he ought or ought not to have acted in his discretion. (3) The question whether any, and if so what, advice was tendered by Ministers to the Governor shall not be inquired into in any court." Article 163 deals with Council of Ministers to aid and advice the Governor. It reads that there shall be a Council of Ministers with the Chief Minister at the head to aid and advice the Governor in exercise of his functions except insofar as he is required to exercise his functions or any of them in his discretion. Article 164 of the Constitution reads as follows: "164. Other provisions as to Ministers.-(1) The Chief Minister shall be appointed by the Governor and the other Ministers shall be appointed by the Governor on the advice of the Chief Minister, and the Ministers shall hold office during the pleasure of the Governor: Provided that in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ime to time by law determine and, until the Legislature of the State so determines, shall be as specified in the Second Schedule." (Emphasis supplied) Article 164 deals with the other provisions as to Ministers. The Chief Minister will be appointed by the Governor and the other Ministers shall be appointed by the Governor on the advice of the Chief Minister. A question arose before the Apex court with regard to granting of sanction for prosecution of Ministers. Whether the Governor should act on the aid of the Council of Ministers or can take his independent decision in the matter. The Apex Court in M.P. SPECIAL POLICE ESTABLISHMENT supra holds as follows: ".... .... ... 8. The question for consideration is whether a Governor can act in his discretion and against the aid and advice of the Council of Ministers in a matter of grant of sanction for prosecution of Ministers for offences under the Prevention of Corruption Act and/or under the Penal Code, 1860. .... .... ... 12. Mr Sorabjee relies on the case of Samsher Singh v. State of Punjab [(1974) 2 SCC 831 : 1974 SCC (L&S) 550] . A seven-Judge Bench of this Court, inter alia, considered whether the Governor could act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the State by allowing the Governor to go against the advice of the Council of Ministers. 56. Similarly Article 200 indicates another instance where the Governor may act irrespective of any advice from the Council of Ministers. In such matters where the Governor is to exercise his discretion he must discharge his duties to the best of his judgment. The Governor is required to pursue such courses which are not detrimental to the State." The law, however, was declared in the following terms: (SCC p. 885, para 154) "154. We declare the law of this branch of our Constitution to be that the President and Governor, custodians of all executive and other powers under various articles shall, by virtue of these provisions, exercise their formal constitutional powers only upon and in accordance with the advice of their Ministers save in a few well-known exceptional situations. Without being dogmatic or exhaustive, these situations relate to (a) the choice of Prime Minister (Chief Minister), restricted though this choice is by the paramount consideration that he should command a majority in the House; (b) the dismissal of a Government which has lost its majority in the House, but refu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6. In the case of A.K. Kraipak v. Union of India [(1969) 2 SCC 262] the question was whether a selection made by the Selection Board could be upheld. It was noticed that one of the candidates for selection had become a member of the Selection Board. A Constitution Bench of this Court considered the question of bias in such situations. This Court held as follows: (SCC pp. 270-71, paras 15-16) "15. It is unfortunate that Naqishbund was appointed as one of the members of the Selection Board. It is true that ordinarily the Chief Conservator of Forests in a State should be considered as the most appropriate person to be in the Selection Board. He must be expected to know his officers thoroughly, their weaknesses as well as their strength. His opinion as regards their suitability for selection to the all-India service is entitled to great weight. But then under the circumstances it was improper to have included Naqishbund as a member of the Selection Board. He was one of the persons to be considered for selection. It is against all canons of justice to make a man judge in his own cause. It is true that he did not participate in the deliberations of the committee when his name was cons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his appeal was pending before the State Government. Therefore there was no occasion for them to distrust the opinion expressed by Naqishbund. Hence the Board in making the selections must necessarily have given weight to the opinion expressed by Naqishbund." 17. On the basis of the ratio in this case Mr Sorabjee rightly contends that bias is likely to operate in a subtle manner. Sometimes members may not even be aware of the extent to which their opinion gets influenced. .... .... ... 19. Article 163 has been extracted above. Undoubtedly, in a matter of grant of sanction to prosecute, the Governor is normally required to act on aid and advice of the Council of Ministers and not in his discretion. However, an exception may arise whilst considering grant of sanction to prosecute a Chief Minister or a Minister where as a matter of propriety the Governor may have to act in his own discretion. Similar would be the situation if the Council of Ministers disables itself or disentitles itself. .... .... ... 23. Mr Tankha is not right when he submits that the Governor would be sitting in appeal over the decision of the Council of Ministers. However, as stated above, unless a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Council of Ministers has to first consider grant of sanction. We also presume that a high authority like the Council of Ministers will normally act in a bona fide manner, fairly, honestly and in accordance with law. However, on those rare occasions where on facts the bias becomes apparent and/or the decision of the Council of Ministers is shown to be irrational and based on nonconsideration of relevant factors, the Governor would be right, on the facts of that case, to act in his own discretion and grant sanction." (Emphasis supplied) The Constitution Bench of the Apex Court considers this very issue and holds that normally the Governor is required to act on the aid and advice of the Council of Ministers, but if it is a matter of sanction to prosecute, it may carve out an exception whilst considering the grant of prosecution of Chief Minister or a Minister whether as a matter of propriety the Governor may have to act on his own discretion. Similar would be the situation if the Council of Ministers disable itself or disentitles itself. The Apex Court also considers what would be apparent bias, though the plea of apparent bias is held to be an exception to the general rule. 35 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Ministers. There are only three exceptions ["except insofar as"] to this: (i) The Governor may, in the exercise of his functions, act in his discretion as conferred by the Constitution; (ii) The Governor may, in the exercise of his functions, act in his discretion as conferred under the Constitution; and (iii) The Governor may, in the exercise of his functions, act in his individual judgment in instances specified by the Constitution. 362. The development of constitutional law in India and some rather peculiar and extraordinary situations have led to the evolution of a distinct category of functions, in addition to those postulated or imagined by the Constitution and identified above. These are functions in which the Governor acts by the Constitution and of constitutional necessity in view of the peculiar and extraordinary situation such as that which arose in M.P. Special Police Establishment [M.P. Special Police Establishment v. State of M.P., (2004) 8 SCC 788 : 2005 SCC (Cri) 1] and as arise in situations relating to Article 356 of the Constitution or in choosing a person to be the leader of the Legislative Assembly and the Chief Minister of the State by proving ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f bias. In the case of S. PARTHASARATHI v. STATE OF ANDHRA PRADESH [(1974) 3 SCC 459], it is held as follows: "14. The test of likelihood of bias which has been applied in a number of cases is based on the "reasonable apprehension" of a reasonable man fully cognizant of the facts. The courts have quashed decisions on the strength of the reasonable suspicion of the party aggrieved without having made any finding that a real likelihood of bias in fact existed (see R. v. Huggins [(1895) 1 QB 563] ; R. v. Sussex, JJ., ex. p. McCarthy [(1924) 1 KB 256] ; Cottle v. Cottle [(1939) 2 All ER 535] ; R. v. Abingdon, JJ. ex. p. Cousins [(1964) 108 SJ 840].) But in R. v. Camborne, JJ. ex. p Pearce [(1955) 1 QB 41 at 51] the Court, after a review of the relevant cases held that real likelihood of bias was the proper test and that a real likelihood of bias had to be made to appear not only from the materials in fact ascertained by the party complaining, but from such further facts as he might readily have ascertained and easily verified in the course of his inquiries. 15. The question then is: whether a real likelihood of bias existed is to be determined on the probabilities to be inferred f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was likely and is whether Respondent 4 was likely to be disposed to decide the matter only in a particular way. ... ... ... 17. As to the tests of the likelihood of bias what is relevant is the reasonableness of the apprehension in that regard in the mind of the party. The proper approach for the Judge is not to look at his own mind and ask himself, however, honestly, "Am I biased?"; but to look at the mind of the party before him." (Emphasis supplied) Considered on the touchstone of the principles of bias, as laid down by the Apex Court and on the perusal of the preamble of the Cabinet note supra what would unmistakably emerge it that the decision of the Cabinet - the cabinet nominated by the Chief Minister, would not be free from bias or being partisan towards their leader. It is in such exceptional circumstance, independent discretion is imperative; the Governor has thus taken an appropriate decision to independently assess the matter, exercise his independent discretion and pass the order. I find no fault with the discretion exercised by the Governor acting on the Aid and advice of the Council of Ministers is normal imder Article 163 and exceptionally the Governor ne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... presentation to the superior authority, cannot be considered against him. See: Gurdial Singh Fijji v. State of Punjab [(1979) 2 SCC 368 : 1979 SCC (L&S) 197 : (1979) 3 SCR 518]. In the circumstances it is necessary that the authority must consider the explanation offered by the government servant and to decide the same in a fair and just manner. The question then arises whether in considering and deciding the representation against adverse report, the authorities are duty bound to record reasons, or to communicate the same to the person concerned. Ordinarily, courts and tribunals, adjudicating rights of parties, are required to act judicially and to record reasons. Where an administrative authority is required to act judicially it is also under an obligation to record reasons. But every administrative authority is not under any legal obligation to record reasons for its decision, although, it is always desirable to record reasons to avoid any suspicion. Where a statute requires an authority though acting administratively to record reasons, it is mandatory for the authority to pass speaking orders and in the absence of reasons the order would be rendered illegal. But in the absence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the matter is generally considered at various levels and the reasons and opinions are contained in the notes on the file. The reasons contained in the file enable the competent authority to formulate its opinion. If the order as communicated to the government servant rejecting the representation does not contain any reasons, the order cannot be held to be bad in law. If such an order is challenged in a court of law it is always open to the competent authority to place the reasons before the court which may have led to the rejection of the representation. It is always open to an administrative authority to produce evidence aliunde before the court to justify its action." (Emphasis supplied) The Apex Court observes that perusal of the file is a permissible mode of examination by the constitutional courts in judicial review, to arrive at a conclusion as to whether actual reasons behind the order are found or not. As quoted hereinabove, the order that is communicated though is not bald, laconic or cryptic, as is alleged, the file contains elaborate reasons. The gist of these reasons is also quoted hereinabove. Therefore, it is not a case where there is no reason, in the file, or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as they grow older." (Emphasis supplied) There can be no qualm about the principles laid down therein. It is no doubt true that reasons cannot be supplied by way of statement of objections. That would be a situation where there are no reasons even in the file. Therefore, the said judgment would not become applicable to the facts of the case. Copious reasons are found in the file and even in the impugned order. I have no hesitation to hold that it does bear application of mind. Therefore, the submission of the learned senior counsel for the petitioner qua application of mind would tumble down like a pack of cards. Issue Nos.4 and 5 are accordingly answered. Issue No.6: Whether the decision taken by the Governor in alleged hottest haste of issuing a show cause notice on the same day of receipt of the petition has vitiated the entire decision? 40. It is submitted that decision was taken in undue haste as the 3rd respondent submits his petition on 26-06-2024; on the same day proceedings are drawn and show cause notice is issued. Therefore, it is in undue haste and this undue haste would vitiate the proceedings. This submission is again noted only to be rejected as the decisio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is accordingly answered. 41. A feeble attempt is made by the learned senior counsel for the petitioner that the Governor refers to two other petitions, but no show cause notices were issued on those two petitions. Those petitions are of respondents 4 and 5. The Governor though in three lines of a particular paragraph observes that there are petitions of other petitioners also; he does not deliberate upon the contents of those petitions and it is no law that prior to grant of an approval under Section 17A the person against whom the approval is sought should be heard in the matter. If natural justice is stretched to the extent of hearing the person against whom a complaint is registered prior to registration of the crime it would be stretching it to an unimaginable extent. If the submission of the learned senior counsel for the petitioner is to be accepted, every person against whom approval is sought, a notice will have to be issued to the person against whom such approval is sought under Section 17A of the act. It is akin to hearing an accused before registering the FIR. This is not the purpose of law. Merely because the Governor has in the case at hand issues a show cause notice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... counsel for the petitioner against the order of the Governor qua the approval under Section 17A are acceptable. Issue No.7: Whether reference to Section 218 of BNSS in the impugned order vitiates the entire order? 42. What was sought before the Governor in the petition filed by the 3rd respondent was in fact approval under Section 17A of the Act. Though the petition was worded sanction, it was in fact not a sanction, but an approval under Section 17A of the Act. The operative portion of the order of the Governor is indicative of the fact that both approval and sanction under Section 218 are granted. The crime is yet to be registered and investigated into. Therefore, granting of sanction under Section 218 of BNSS would not arise at this juncture as investigation itself is yet to take place. The learned Solicitor General has admitted that observation or grant of sanction under Section 218 of BNSS at this juncture was erroneous. The order could be considered only as an order under Section 17A of the Act. Therefore, no submissions are made qua Section 218 of BNSS by any of the counsel representing the parties. It is, therefore, I deem it appropriate to restrict and read the order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccordingly. Devaraju at the time when he submits the representation, is said to be working as a Teacher, in the Department of Public Instructions. Therefore, it was on a false pretext that Devaraju sought denotification of the land and the land is de-notified. The denotification itself is contrary to law, as the land is de-notified after the deposit of the award in the civil Court. Notwithstanding this, the land is de-notified owing to falsehood of Devaraju. Devaraju could not have claimed the land being son of the original owner, as he has already relinquished his rights over the land in favour of his brother Mylarappa. Mylarappa does not apply for de-notification. It is Devaraju who applies. Nonetheless the land is de-notified. Notwithstanding de-notification, MUDA shows the land as one acquired, forms sites, in the aforesaid Devanur Badavane and also distributes the sites. Even after distribution of sites, on forming layout, to the allottees, Devaraju sells the land in favour K.B. Mallikarjunaswamy, brother of the wife of the petitioner and brother-in-law of the petitioner. It is surprising how he buys the subject land in which MUDA had already formed the layout. It is here, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under which MUDA functioned. 48. The submission is that the son of the petitioner was a silent spectator in the deliberations and did not utter a word. This submission, to say the least, is preposterous. It can hardly be justified that a law maker, son of the former Chief Minister and the present leader of the opposition, would be a silent spectator in the deliberations. Nonetheless, the beneficiary of the deliberations is his mother, the wife of the petitioner. After the resolution, the wife of the petitioner was asked to execute a relinquishment deed. The relinquishment deed is executed by the wife of the petitioner. The allotment letter is issued in favour of the wife of the petitioner. One such allotment letter is dated 05-01-2022. 49. What is discernible from the allotment letter is the land that is relinquished is in Kesare grama. The sites that are allotted in favour of the wife of the petitioner are in Vijayanagar III Stage 'G, block, in the heart of Mysore City. Kesare grama is said to be 15 Kms. away from the Mysore city. If compensatory sites had to be granted, it could be either in the very land or in adjacent lands of Kesere grama or any layout that is subsequently f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ranganatha Reddy appearing for the 3rd respondent has also vehemently projected that fraud is played by the family of the petitioner as non-existent land is now projected to be loss of land and Rs. 55/- crores worth compensatory sites are granted. The learned senior counsel Smt. Lakshmi Iyengar contends that but for the wife of the petitioner being an applicant the files would not have moved so fast and compensatory sites are granted in the heart of the city when relinquishment of land is 15 kms. away from Mysore city. 53. All the aforesaid allegations, in the considered view of the Court, would require investigation in the least, for the reason that if the petitioner was not in the seat of power, helm of affairs, the benefit with such magnitude would not have flown. It has highterto never flown to any common man, nor can it, in future flow. It is unheard of for a common man to get these benefits in such quick succession bending the rule from time to time. Therefore, the petitioner may not have put his signature, made a recommendation or taken a decision, for bringing him into the offence against him under the Act, but the beneficiary is not a stranger. The beneficiary of these ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r attempts to obtain, any undue advantage for himself or for another person, by abusing his position as a public servant or by using his personal influence over another public servant; or by any other corrupt or illegal means; (ii) it shall be immaterial whether such person being a public servant obtains or accepts, or attempts to obtain the undue advantage directly or through a third party. ... ... ... 9. Offence relating to bribing a public servant by a commercial organisation.-(1) Where an offence under this Act has been committed by a commercial organisation, such organisation shall be punishable with fine, if any person associated with such commercial organisation gives or promises to give any undue advantage to a public servant intending- (a) to obtain or retain business for such commercial organisation; or (b) to obtain or retain an advantage in the conduct of business for such commercial organisation: Provided that it shall be a defence for the commercial organisation to prove that it had in place adequate procedures in compliance of such guidelines as may be prescribed to prevent persons associated with it from undertaking such conduct. (2) For the purpos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a public servant, prescribe such guidelines as may be considered necessary which can be put in place for compliance by such organisations. ... ... ... 11. Public servant obtaining 11[undue advantage], without consideration from person concerned in proceeding or business transacted by such public servant.-Whoever, being a public servant, accepts or obtains or attempts to obtain for himself, or for any other person, any undue advantage without consideration, or for a consideration which he knows to be inadequate, from any person whom he knows to have been, or to be, or to be likely to be concerned in any proceeding or business transacted or about to be transacted by such public servant, or having any connection with the official functions or public duty of himself or of any public servant to whom he is subordinate, or from any person whom he knows to be interested in or related to the person so concerned, shall be punishable with imprisonment for a term which shall be not less than six months but which may extend to five years and shall also be liable to fine. "12. Punishment for abetment of offences.-Whoever abets any offence punishable under this Act, whether or not that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... influence there need not be any recommendation or any order being passed by a public servant. The petitioner, is undoubtedly, behind the smoke screen for every benefit that has flown to the wife of the petitioner. If the benefit had flown to a stranger outside the family, the petitioner could not have been alleged of any offence. The benefit in fact has flown to the family and the benefit is to the family prima facie due to the power of the petitioner. Not a single instance is shown where a person who has relinquished land in Kesare Grama, has been granted compensatory land in the upscale area of Mysore City. It is no doubt true that it is not only in the case of the petitioner that compensatory land by way of sites is granted. But it is only in the case of the wife of the petitioner that it is granted in Vijaynagar, III Stage. 55. What is further surprising is, the moment benefit is flown to the hands of the wife of the petitioner proceedings begin to withdraw the Rule of grant of compensatory land in the ratio of 50:50. A direction is issued by the Urban Development department on 14-03-2023 to stop allocation of compensatory sites. This reads as follows: The Urban Development ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ered. None of the armoury that sprang from the arsenal of the learned senior counsel for the petitioner did lend any assistance, that would lead to quashment of the order impugned. 58. Much is spoken about the criminal antecedents of the 3rd respondent, while all that has been contended are contrary to records. The submission of criminal antecedents of the 3rd respondent cannot and can never mask the real issue that he has brought before the Governor. Even otherwise, all the allegations are absolutely unfounded and deliberate mudslinging upon the 3rd respondent. I deem it appropriate to observe that, whistleblowers would sometimes face such allegations, particularly when they blow the whistle of corruption. 58. On the last day of the conclusion of the submissions, certain contentions are advanced with regard to discriminatory treatment at the hands of the Governor. Quoting an illustration of another law maker Smt. SHASHIKALA JOLLE whose approval under Section 17A is rejected and two of their approvals pending are sent back to the State, to swing back to the original submission of violation of Article 14 in the act of the Governor. The case of Smt. SHASHIKALA JOLLE is not before ..... X X X X Extracts X X X X X X X X Extracts X X X X
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