B.M. PRAKASH S/O B.M. MUNIKRISHNAPPA Vs. STATE OF KARNATAKA DEPARTMENT OF URBAN DEVELOPMENT M.S. BUILDING, DR. B.R. AMBEDKAR VEEDHI, BANGALORE- 560 001, BY ITS SECRETARY AND OTHERS

JUDGEMENT

(1.) THE orders at Annexure -'A' and 'B' passed by the Deputy Commissioner, Kolar, and Director of Municipal Administration, Bangalore, dated 19.5.2010 and 13.7.2010 respectively, are called in question in this writ petition.

(2.) THE petitioner was elected as President of Town Municipal Council, Srinivasapura (4th respondent herein) in the year 2008. M/s. Vodafone Limited, a Mobile service provider sought permission by its letter dated 22.8.2008 to fay Optic Fibre Cable within the limits of Srinivasapura Town, Kolar District. The town Municipal Council passed a Resolution as per Annexure - R -2' on 12.1.2009 permitting M/s. Vodafone Limited to lay Optic Fibre Cable by depositing Rs. 2.81.870/ - (escavation charges) with the 4th respondent Municipality. It is specifically resolved that such amount of Rs. 2.81.370/ - was to be paid by M/s. Vodafone Limited either in the form of Demand Draft or by cash to the Municipality. The estimation prepared by the Town Municipal Council, Srinivasapura, is produced at Annexure - 'R -3' along with the statement of objections. The same clearly reveals that the estimation prepared was at Rs. 2.81.870/ -. The estimation was prepared and signed by the jurisdictional Assistant Engineer and the Chief Officer, Town Municipal Council, Srinivasapura. Accordingly, M/s. Vodafone Limited was intimated that permission is granted to it for laying Optical Fiber Cable in particular areas, subject to certain conditions, including depositing the amount of Rs. 2.81.870/ payable at Srinivasapura, in favour of Chief Officer, T.M.C., Srinivasapura. However, the petitioner being the President of the Municipality wrote a letter in the letterhead of Town Municipal Council as per Annexure - 'R -5' on 20th December 2009 directing the Deputy Manager, M/s. Vodafone Limited, to pay Rs. 5.79.873/ - as the cost for digging the land. Along with the said letter, it seems, the petitioner has sent one more estimation prepared and signed by him along with Junior Engineer of the Municipality as per Annexure - 'R -6', which discloses that the estimation prepared by the petitioner was for Rs. 5.79.873/. After receipt of such letter from the petitioner, M/s. Vodafone Limited sent the demand draft of Rs. 5.79.873/ - to the petitioner. The demand draft was in the name of the President, T.M.C., Srinivasapura and the same was dated 6.1.2009. On the very day, i.e., on 6th January 2009, petitioner opened an account (fresh account) in the name of the President in ING Vysya Bank Ltd., as per Annexure - R -6 and deposited the demand draft received by him in the said account on 12.1.2009. On the next day i.e., on 13.1.2009, petitioner withdrew a sum of Rs. 4 lakhs out of such money in cash and deposited a sum of Rs. 2.81.870/ - only with the Municipality as is clear from the document at Annexure -' R -9'. Remaining amount (i.e., Rs. 2.98.003/ -) was with the petitioner.

(3.) IT is not in dispute that the Municipality passed a Resolution demanding the cost to be imposed by the Municipality for digging the land (escavation) for the purpose of laying Optic Fiber Cable at Rs. 2.81.870/ -. The copy of the Resolution is produced at Annexure - 'R -2' along with the statement of objections. The Municipality has prepared the estimation as per Annexure - 'R -3'. Such estimation bears the signatures of jurisdictional Assistant Engineer and Chief Officer of Town Municipal Council, Srinivasapura. Accordingly, a letter came to be issued by the Town Municipal Council, Srinivasapura as per Annexure - 'R -4' on 12.1.2009 directing M/s. Vodafone Limited to deposit Rs. 2.81.870/ - either by way of demand draft or by way of cash in the office of the Municipality. The very letter Annexure -'R -4' reveals that the demand draft was payable at Srinivasapura in favour of Chief Officer, Town Municipal Council, Srinivasapura. There cannot be any dispute that neither the President or any elected representatives have got jurisdiction to open an account in the name of the President or Vice -President etc., The account of Town Municipal Council would be standing in the name of either the Town Municipal Council represented by Chief Officer or the Chief Officer of Town' Municipal Council. In the matter on hand, the account of the Municipality stands in the name of the Chief Office. Thus, by the letter vide Annexure -'R -4', M/s. Vodafone Limited was directed to deposit an amount of Rs. 2.81.870/ - in the form of demand draft payable at Srinivasapura drawn in favour of Chief Officer, TMC, Srinivasapura. In spite of the same, the President (petitioner) proceeded to issue letter under his own signature as per Annexure -'R -5', that too, on the letterhead of the Municipality on 20th of December 2008 falsely stating therein that the Municipality has prepared an estimation to an extent of Rs. 5.79.873/ - and therefore, the said amount should be deposited. In the very letter Annexure - 'R -5', it is noted in the hand writing that the demand draft shouid be issued in favour of B.M. Prakash (i.e., petitioner herein). Town Municipal Council, Srinivasapura. There is no reason as to why such note should be found directing M/s. Vodafone Limited to pay demand draft in favour of B.M. Prakash (petitioner). Even the estimation prepared by the petitioner as per Annexure -' R -6' subsequently for an amount of Rs. 5.79.873/ - is also created to suit his purposes. The same is not signed by jurisdictional Assistant Engineer or by the Chief Officer of the Municipality. But, such created estimation is signed by the petitioner himself and by a Junior Engineer (who are unauthorised). Thereafter, the petitioner has accepted the demand draft sent by the Vodafone company in the name of President, Town Municipal Council, Srinivasapura and has opened an account in the name of President, Town Municipal Council, Srinivasapura on 6.1.2009. There was no reason as to why the petitioner should open a new account on 6.1.2009 i.e., on the date of receipt of the demand draft in the name of President, Town Municipal Council, Srinivasapura. If the petitioner had no intention of using the amount for his purpose, he would have simply directed the Vodafone company to send one more demand draft for appropriate amount by refusing to accept the demand draft sent by the Vodafone company. In stead of doing so, petitioner has accepted the said demand draft and got it deposited in his account on 12.1.2009. On the next day, i.e., on 13.1.2009, petitioner has withdrawn the amount of Rs. 4 lakhs in cash for "Self" and in turn deposited only Rs. 2.81.870/ - in cash with the Municipality. These facts clearly go to show that the petitioner has misutilised his office and earned profits out of such office for his personal use. Only after lodging of complaints by the 5th respondent and others before various authorities, petitioner chose to deposit the entire amount received by him from Vodafone company on 24.11.2009 i.e., after the lapse of about 11 months.