ADITYANATH DAS Vs. STATE OF TELANGANA

JUDGEMENT

(1.) The petitioner is the fifth accused in C.C.No.24 of 2013 on the file of the Princip for Central Bureau of Investigation (C.B.I.) cases, Hyderabad. It is outcome of the cognizance order of the learned Special Judge, dated 25.09.2013, so far as the petitioner A5 concerned, under Section 120 B read with Section 420 of Indian Penal Code (IPC), among the nine accused, from the final report filed against nine accused for the offence punishable under Section 120 B read with Section 420 IPC and Sections 9, 12, 13 1(c) and 1(d) of the Prevention of Corruption Act, 1988 (for short, 'the P.C.Act') and said final report is out come of Crime in R.C.19(A)/2011 - CBI, Hyderabad.

(2.) The grounds urged in the quash petition in a nut shell, impugning the said cognizance order are that the learned Special Judge erred in taking cognizance in a mechanical manner that too without valid sanction from competent authority, even there is a statutory bar thereby to take cognizance, when the entire prosecution case shows the alleged acts attributed against the petitioner while discharging his official duty in processing the file for allocation of water to the India Cements Company - A7 and when there is nexus between the official act and the offence alleged, it is mandatory for valid sanction for taking cognizance. It is also the contention that the charge sheet main allegation is that there is no prior permission obtained from Inter State Water Resources Authority to the additional allocation and thus G.O.Ms.No.43, dated 22.04.2010 not taken into consideration by the investigating officer so also the Cabinet Minister's approval in allocation of water to M/s.India Cement Limited and said Cabinet Minister filed affidavit before the Supreme Court stating there was no any irregularities in allocation of water from river Kagna and river Krishna respectively and mere pendency of the recovery of Water Royalty from A7 then cannot be a ground for launching Criminal prosecution against the petitioner as A5 and these aspects not considered by the learned Special Judge, from the material on record, which no way makes out any prima facie case of alleged quid pro quo by so called extending benefit to any of the accused by the petitioner public servant and even if entire contents of charge sheet on face value is accepted, none of the offences under Section 120 B and Section 420 IPC is made out against the petitioner and the same was not considered by the learned Special Judge. It is also the contest that the charge sheet contains confusion on the compilation of facts and creative write up without prima facie and sustainable accusation to attract ingredients of any offences, much less, petitioner had any wrongful and personal gain from the alleged additional allegation and thereby the cognizance order is liable to be quashed. It is also contended that as per the charge sheet dated 10.09.2013, on 28.03.2008, the Chief Engineer, Minor Irrigation submitted to the petitioner that sufficient water was available in Krishna river and that ten lakh gallon water may be given to India Cements and subsequent to that an observation of S.O., Technical recommending the remarks of Chief Engineer, ISWR (Inter State Water Resources) be obtained and the petitioner asked by raising query as to why matter should be referred to CE ISWR, which is a matter of record and the S.O. Technical did not even mention any procedure, rule or could not cite of any Government Order to refer to CE, ISWR, but merely mentioning that 7 lakh gallons per day are being requested from Krishna river. The petitioner thought that there was a new Tribunal in session on Krishna river and Krishna being a major inter-state river, it would be prudent to take the opinion of CE, ISWR and accordingly agreed to the suggestion of S.O. Technical; that Irrigation and C.A.D.(PW-Reforms) vide memo dated 29.04.2008, called for the remarks of Chief Engineer, ISWR, enclosing the letter of Chief Engineer, Minor Irrigation dated 28.03.2008 and the Chief Engineer, ISWR in his letter dated 23.05.2008 quoting the letter of CE, Minor Irrigation, dated 28.03.2008, enclosed in I & CAD memo dated 29.04.2008 supra stated that the quantity requested by the India Cements is relatively small, duly quoting CE Minor Irrigation and the proposal may be considered to accord permission for the above quantity against the savings from the utilization within the frame work of the Bachawat Tribunal allocations. The CE, ISWR did not contribute anything more than what was referred to him and also the same authority i.e., CE, Minor Irrigation, reported to Government in first place, became the source of information to CE, ISWR, thereby caused delay of one month in decision making process without adding any value to the process occurred and it was entirely due to the perfunctory nature of routine reference to CE, ISWR. Later obtaining orders in circulation of file up to the Chief Minister through the Minister (M & MI), without waiting for replies of Engineer - in - Chief and Industries Department (as it was a second time allotment) the industrial unit being an old one having already been cleared for grant of water by Industry Department and since both CE Minor and CE, ISWR had cleared it and to avoid further delays, orders were issued in G.O.Ms.No.146, I & CAD (PW-Reforms), dated 22.07.2008 by the Government for allocation of additional quantity of 7 lakh gallons of water per day to M/s.India Cements with stipulated conditions and the same was in accordance with the industrial policy of the State and also with the policy of 10% water reserved for Industrial use reservoir as per Government Orders and thereby there is no criminality that can be found in issuance of the G.Os.

(3.) The G.O. granting drawal of water from Kagna river is concerned, it is stated in the charge sheet that the Special Officer in a routine manner observed that the remark be obtained from CE, ISWR without adverting to any rule, order or notification that made it prudent to obtain remarks of CE, ISWR. The Chief Engineer, Minor Irrigation in letter dated 07.08.2008, stated referring to recommendation of the Superintending Engineer, Minor Irrigation, that India Cements requested permission to draw 13 Mcft. of water annually from Kagna river, in addition to the existing 13 Mcft. of water already allowed and accorded in G.O. The point of Kagna river from which proposed water was to be lifted was 0.75 Kms. Towards Chittiganpur village, Tandur Mandal, Ranga Reddy District, that the proposed 13 Mcft. utilization for the factory would neither affect LRR & URR, nor it would exceed the restriction of 6 TMC under Kagna of K6 sub Basin. There was no mention about period of permission granted to the company earlier. It was made clear from the facts regarding payment of royalty as upto date is not clear and there was no remark of ISWR. The file was submitted by the SO (Technical) with observation to seek particulars as per pt. 6 from CE, Minor and views of the CE, ISWR should be called for. The petitioner desired categorically that when it was a matter of the water allocation by Minor Irrigation, then why this should go to CE, ISWR. It was pointed out that the earlier G.O. of earlier allocation was already on file. The petitioner was constrained to note that the Section was not examining the issue on the basis of the documents available on the file or in the Section and in a routine manner the files were sent to Chief Engineers and other departments which are delaying the process and thereby the matter was directed to be examined and put up which is in tune with the industrial development policy of the Government, including single window clearance for industrial growth and development which as a Secretary to the Government is the bounden duty of the petitioner. The SO (Technical), vide his detailed note on the subject noted all the information given by the Chief Engineer, Minor Irrigation, noted that the proposal of CE, Minor Irrigation for according permission for utilization of 13 Mcft. of water from Kagna river to M/s.India Cements Limited and also noted that as per Chief Engineer, Minor this was in addition to existing permission of 10 lakh litres per day and the period of supply was not mentioned while it is noted that the Chief Engineer, Minor Irrigation has stated that the formerly Vishakha Cements Industry Limited has merged with India Cements Limited as per High Court of Madras Order, dated 25.07.2007. The view confirmed on this point should be obtained from Industries Department. The SO, Technical, thereafter, noted that the Chief Engineer, Minor Irrigation informed that as per KWDT, the utilisation of Kagna river is restricted to 6.00 TMC and the proposed 13.00 Mcft. for the India Cements Factory will neither affect LRR or URR nor exceeds the restriction of 6 TMC. The possibility of sparing further 13 Mcft. of water has to be indicated by CE, ISWR and it was presumed that 6.00 TMC for all major and medium irrigation schemes in Kagna Sub Basin and even while giving permission to draw 13 Mcft. initially in the year 1996, the views of Chief Engineer, ISWR, were obtained and in this context suggested that the views to be obtained and also because it was Chief Engineer, ISWR, who was directed to execute an agreement with Vishaka Cements Industries Limited. The SO (Technical) offered no cogent reason nor existence of any order of the Government making consultations with the Chief Engineer, ISWR, mandatory but reiterated to refer the matter to ISWR save and except that in the year 1996 they were consulted and executed the agreement with the then Vishaka Cements Industries. The SO, Technical offered no explanation if there was any Statutory guidelines in this regard which mandated the obtaining the opinion of ISWR in the matter nor answered the points raised in the query of under signed that whether all the papers in the file has been examined and whether there is some additional information which is being sought from Chief Engineer, ISWR, which is neither available in the file nor in the Secretariat and therefore consultation with Chief Engineer, ISWR would add value to the decision making process. The SO, Technical did not take into the account of direction given by the petitioner to examine the record available in the file and in the Section. Though it was his duty to examine the relevant rule available, if any, in the Section or in the records available on the file in the earlier G.O.244 and he failed to do inadvertently or deliberately and it gave no explanation to the observation that such routine exercised needlessly delayed the decision making process which would be precisely against the policy of the Government repeated through various SIPB decisions and APO, IDEA Act, 2002. The SO, Technical replied only in a routine manner without taking note of the petitioner into account and merely because in the past it was sent to ISWR, it does not mean that it should go to him every time until and unless it is mandated through an explicit Government order. The petitioner thereby acted entirely in the public interest and followed due process is the contention with respect to the fact supra and the note of the SO, Technical. The further contest is that the petitioner wanted to be abundantly clear about rules and convention and therefore marked the file to advisor, technical to see the note of SO, Technical and give remarks on the suggestion made by SO, Technical vide note dated 16.12.2008 and submitted that the advisor, Technical vide his note dated 18.12.2008 advised for utilization of smaller quantity of water i.e., generally less than 0.50 TMC., the Chief Engineer, Minor is the utilization authority and Chief Engineer, ISWR deals only with Inter State Water issues and water authorized to be utilized only and not with actual water utilization. It was not understood as to why the Engineer - in - Chief, ISWR asked to execute the agreement with Vishaka Cement Industries Limited and also not known if he actually executed the agreement. The Chief Engineer, Minor reported that 6.0 TMC is available for A.P., to be utilized under Kagna Sub Basin and there may be already utilization under existing Irrigation Schemes. After taking into account of existing and contemplated utilization only, the Chief Engineer, Minor might have recommended for permission for utilization of 13.00 Mcft. of water from Kagna in addition to existing permission. It opined that the Government may consider the recommendation of Chief Engineer, Minor for permission and direct the Chief Engineer, Minor, to enter into agreement for total utilization of water with India Cements Limited. The file was thereafter sent to Minister (Major and Medium Irrigation) on 18.12.2008 and in turn sent to the Chief Minister on 28.02.2009 and the Special Secretary to the Chief Minister returned the file on 03.03.2009, to re-examine the issue in the light of Model Code of conduct which came into force from 03.30 p.m. of 02.03.2009 due to announcement of General Elections to Lok Sabha and A.P.Legislative Assembly in 2009 and this file was sent to General Administration (Election) on 09.03.2009 to examine if it attracts the Model Code of conduct and G.A. (Election) Department opined that the matter may be taken up after elections and it is after the elections were over, the matter again circulated to the Chief Minister in the re-elected new Government sworn on 30.07.2009 through the Minister concerned and on concurrence of the Chief Minister on the file, the draft G.O., granting approval to M/s.India Cements Limited to draw 13 Mcft. water was prepared and issued on 20.08.2009. After the order was issued, the Chief Engineer, ISWR took suo motu note of the order and pointed out certain discrepancies and suggested two amendments in different lines in para - 1 that were duly incorporated and amendments were issued vide a new G.O. The discrepancies in para - 1 had come from the letter of the Chief Engineer, Minor, who had copied it verbatim from G.O. 244 of 1996, which Chief Engineer, ISWR noticed only that G.O. 94 of 2009 was issued and as such necessary corrections were issued by issuing errata through a Government Order. The Government held that the petitioner processed the file for additional drawal of water as per business rule which was duly circulated for approval to the Minister and the Chief Minister and the conclusion is drawn by Investigating Authority with respect to the issuance of GOs. are not only totally irrational and irrelevant but also not based on any evidence and the accusation contained in the charge sheet are based on assumptions without any factual foundation and there is no any cognizable offence that discloses from the police final report to take cognizance by the learned Special Judge, as from reading of the charge sheet, the investigating agency (C.B.I.) failed to show culpability of the petitioner by any justifiable factual accusation and thereby the proceedings are liable to be quashed.