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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 ..... h Kushalappa, Smt. **Anitha S.M.Patil, Advocates For R4; Sri Prabhuling K.Navadgi, Senior Advocate A/W., Sri Prakash M. H., Advocate For R5) CAV ORDER The petitioner is the Chief Minister of the State of Karnataka. He is knocking at the doors of this Court, calling in question a GUBERNATORIAL order, which grants permission or approval under Section 17A of the Prevention of Corruption Act, 1988 ('the PC Act' for short) and sanction under Section 218 of the Bharatiya Nagarik Suraksha Sanhita, 2023 ('BNSS' for short) against him. 2. Sans details, introductory facts, as borne out from the pleadings, are as follows:- The petitioner is the present Chief Minister of the State of Karnataka. Before embarking upon the present controversy, I deem it appropriate to notice the period of power of the present Chief Minister, at the relevant points in time, which forms the fulcrum of the lis. Between the years 1996 and 1999 and during 2004 and 2005, the petitioner was the Deputy Chief Minister. He served as a Leader of the Opposition on two occasions, between 2009 and 2013 and between 2019 and 2023 and as Chief Minister in two stints - one, between 2013 and 2019 and the other, currently from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Sri. Siddaramiah. Sri.Ninga S/o Javara the erstwhile owner of the mentioned lands which were allegedly purchased by him in the year 1935, had Three Sons. (1) Mallaiah, (2) Mylaraiah and (3) Devaraju, Sri.Mallaiah and Sri.Mylaraiah were since dead. SURRENDER OF SHARE & RIGHTS OVER PROPERTY 1. The revenue records indicate that the rights of Sri. Ninga s/o Javara has been relinquished by him: On 29.10.1968 the eldest son of Ninga-Sri.Mallaiah and 3rd son of Ninga-Sri J.Devaraj together SURRENDER THEIR SHARE & RIGHTS, (ಸರ್ಕಾರಿ ಬೀಳು) ರಿಸ್ಟೋರ್, ನಿಂಗ ಬಿನ್ ಜವರ ಮೈಲಾರಯ್ಯ ಬಿನ್ ಹಕ್ಕು ಖು ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... py 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 Notified for Acquisition vide Order No.NaAaE 577, A.Pra.Vi 96 dated 20.08.1997, for the formation of the 'Devanuru 3rd Stage', in Mysore, by the Mysore Urban Development Agency-MUDA. AWARD DECLARED: 6. On 30.03.1998, subsequent to the Notification dated: 28.08.1997, the Preliminary Award Notice dated 28.08.1997, the Award Decision Notice dated 12.03.1998, AND the Final Award Notice indicating the Award of Rs.3,24,700/- was issued on 30.03.1998 to Sri. Ninga S/o. Javara A copy of the Preliminary Award Notice dated 28.08.1997, the Award, Decision Notice dated 12.03.1998 & the Final Award Notice dated 30.03.1998 are enclosed herewith and marked as ANNEXURE-B-1, B-2 & B-3. POSSESSION WITH MUDA 7. As a consequence, of the Notification dated 20.08.1997, the entries for the year 1998-99 in the RTC (Hand written/entered) indicates that the said lands were in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -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, dated 29.10.1968, after receiving the consideration Rs.300/- from Sri. Mylaraiah. He cannot automatically become the owner of the transferred land merely because the legal heirs of the actual owner are unaware of the Registered Deed in their favour. The Illegal Sale has been executed by the Mysore North Sub-Registrar's office, in favour Sri.B.M.Mallikarjuna Swamy, the brother-in-law of Sri. Siddaramiah, allegedly without any original title deeds in the name of the Seller Sri.Devaraj and Family, under the oral instructions from Sri.Siddaramiah. 12. The then Sub-Registrar of the Mysore North Sub- Registrar's office (Sri.S.K.Siddiah 05-05-2003 to 18-11- 2004, Sri.K.S.Madhaviah 06-03-2002 to 20-12-2004 and Sri Chickanna 21-07-2002 to 19-11-2004) had connived with Sri.B.M.Mallikarjuna Swamy, the brother-in-law of Sri. Siddaramiah and family under instruction from Sri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 TO BE AGRICULTURAL LANDS by B.M.Mallikarjuna Swamy, (intentionally avoiding the submission of the details of any utilisation of the said lands by MUDA) the very same ALREADY DEVELOPED AND SOLD LANDS WERE FRAUDULENTLY CONVERTED vide CONVERSION ORDER ALN.(1) 190/2004-05 dated 15-07- 2005, issued by the then DC of Mysore, Sri.S.Selvakumar- IAS. A copy of the List of beneficiaries, including sites allotted by 31.05.2005, is enclosed herewith and marked as ANNEXURE-F. 15. The CONVERSION OF THE ALREADY DEVELOPED AND SOLD lands measuring 3 Acres and 16 Guntas, in Sy.No.464, in Kesere Village, CLAIMING THAT THEY WERE AGRICULTURAL LANDS WAS MANIFESTLY ILLEGAL BECAUSE: Firstly, a BOGUS LETTER was issued by the then Thazildar of Mysore Sri. Malige Shankar, vide No.LLN1CR134/2004-05 dated 05-03-2005 (as mentioned in the Conversion Order dated 15- 07-2005) recommending the conver ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 EXECUTED in favour the 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 Smt.Malathi Swarnabai 391 19.08.2005 Sri.Pradeep Kumar 397 24.08.2005 B.S.Govinde Gowda 283 17.10.2005 Smt.Annaporna 264 07.02.2006 Sri.K.B.Ponacha 369 19.02.2006 Sri.Jeevan 367 19.02.2007 Sri.Raghavendrachar 392 30.07.2009 The Gift Deed dated 20-10-2010 was executed when Sri.Siddaramiah was the Leader of the Opposition in the Karnataka Legislative Assembly. A copy of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 2014, Bangalore, Dated: 11.02.2015 the Quantum of the COMPENSATION GOT AUTOMATICALLY ENHANCED to a Ratio of 50:50, benefiting Smt.B.M.Parvathi W/o.Sri.Siddaramiah. 23. On 15.12.2017 and 30.12.2017, during the Council Meetings of MUDA, when Mr.Siddaramiah was the CM of Karnataka, a decision was taken BY MUDA, THAT, since MUDA has formed Sites + Roads + Parks formed on the 3 Acres & 16 Guntas, (13,759 Sq. Mts) in Sy.No.464, of Kesere Village, belonging to Smt.B.M.Parvathi W/o. Sri.Siddaramiah and the same has been already put to for public use, by transfer of Site Nos. 396, 397, 398, 399, 400, 421, 422 and 423 measuring 6 x 9 meters each AND Site Nos.386, 387, 388, 389, 390, 391, 366, 367, 368, 369, 365 and 392 measuring 9 x 12 meters each AND Site Nos. 262, 263, 264, 265, 287, 290, 291, 292, 288 and 289 measuring 12 x 18 meters each, in lieu of the 13,759 Sq. Mts of land ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 belonging to Smt.B.M.Parvathi W/o. Sri.Siddaramiah, that was utilised by MUDA for the formation of the 'Devanur 3rd Stage', AND MUDA distributing the developed sites to various beneficiaries since 2001 itself. A copy of the Application dated 25.10.2021 by Smt. Parvathi for the allotment of Alternative Compensatory sites, is enclosed herewith and marked as ANNEXURE-Q. 28. On 23.11.2021, in response to the Application dated 25.10.2021 by Smt. Parvathi seeking the allotment of Alternative Compensatory sites, the Special Land Acquisition Officer of MUDA issued a Notice to Smt. Parvathi, QUOTING THE DECISIONS of MUDA Council meetings held on 15.12.2017, 30.12.2017 and 20.03.2021 AND referring to the two applications/requests by Smt.Parvathi to MUDA dated 23.06.2014 and 25.10.2021, requiring her to execute a deed of release of the title of the 3 Acres & 16 Guntas, in Sy.No.46 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 placed for consideration before the MUDA Council meeting held on 20.03.2021? (b) WHERE WAS THE NEED FOR, the subject regarding the Allotment of the Compensatory Sites to Smt. Parvathi being discussed extensively during the MUDA Council meeting held on 20.03.2021? (c) WHERE WAS THE NEED FOR, the decision regarding the Allotment of the Compensatory Sites to Smt. Parvathi, getting deferred/postponed TO ANOTHER DAY 'At the request of the Land Owner' on 20.03.2021? (d) WHERE WAS THE NEED FOR, Smt.B.M.Parvathi W/o.Sri.Siddaramiah and Mother of Sri.S.Yatindar-MLA, TO ONCE AGAIN MAKE AN APPLICATION TO MUDA, ON 25-10-2021, seeking alternative compensatory developed sites, in lieu of the 3 Acres & 16 Guntas, Sy. No. 464, of Kesere Village? (e) WHERE WAS THE NEED FOR, the Special Land Acquisition Officer of MUDA to issue a Notice on 23.11.2021 to Smt.B.M.Parvathi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... herefore, 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), 319, 322, 324, 324(1), 324(2), 324(3), 335, 336, 338 and Section 340 - of the Bharatiya Nyaya Sanhita, 2023 and other applicable provisions of law, in the interest of enforcing probity in life and service of Public Servants AND upholding the law of the land. Yours faithfully, Sd/- Abraham T.J President. Anti-Graft/Corruption & Environmental Forum R 'Ashirwad', 2326, 2nd 'A' Cross, 16th 'B' Main, H.A.L 2nd Stage, Indiranagar, Bengaluru-560 008. M-9379916625. [email protected]." The aforesaid is the petition in its entirety. The Governor, then issues a show cause notice to the petitioner, seeking to show cause as to why approval/sanction as is sought by the complainant should not be granted. The same is also sent to the Chief Secretary, to place it before the Cabinet, as necessary in law. The office of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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, according to the learned senior counsel, has been considered and distinguished in a subsequent judgment in the case of NABAM REBIA v. DEPUTY SPEAKER, ARUNACHAL PRADESH LEGISLATIVE ASSEMBLY [(2016) 8 SCC 1]. 5.4. On the facts of the case, the learned senior counsel would seek to emphasise that the petitioner throughout the period of allegations has not put a dot of ink on any paper concerning the issue; neither the file is placed before him at any time when he was in power. Therefore, he would submit that no decision is taken or recommendation made by the petitioner, for an approval to be granted under Section 17A of the Act. All the actions are pointed against the wife of the petitioner and the brother-in-law of the petitioner. For the acts of the wife or the brother-in-law, it is the submission of the learned senior counsel, that the petitioner cannot be dragged into th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 against the Chief Minister, particularly setting of the criminal law into motion. It is, therefore, the Governor rejects the reply of both the petitioner and the Cabinet, takes an independent decision on complete application of mind and has accorded sanction. 6.4. He would contend that Governor's approval should be distinct from judicial review applicable to other prosecution sanctions. It is not necessary for the Governor to pass a detailed order on every aspect that has been put forth in the reply to the show cause notice. It would suffice if the file contains details. He would seek to place reliance upon several judgments on the issue. Broadly speaking the learned Solicitor General of India, answering every point of the learned senior counsel for the petitioner would seek dismissal of the petition, on the score that after all what is ordered by the Governor is only an a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 that henceforth compensatory sites should be stopped. He would thus submit that if the petitioner was not involved at all points of time, who else could have done so. He might not have signed any document, but he is behind all these, as compensatory sites are granted to his wife by way of grant of 14 sites. It is his submission, that the petitioner himself proclaims to the media, that if Rs. 62/- crores are given him, he would relinquish all sites. 7.5. He would, therefore, contend non-existent agricultural land is purchased; non-existent agricultural land is converted; nonexistent agricultural land is made the subject matter of compensatory sites and for non-existent things Rs. 56/- crores compensatory sites are granted all out of public money. He would submit that the matter would require investigation in the least. 8. Learned senior counsel Sri Maninder Singh representi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 different date, would contend that facts are narrated by the learned senior counsel Sri Maninder Singh or the learned counsel representing the 3rd respondent. But, he would submit on legal aspect of the matter. He would re-read Section 17A of the Act, to contend that there need not be a recommendation or a decision made by the petitioner, but if it is relatable to any decision or recommendation that would suffice. He would emphasise on the word 'relatable'. The relatability, according to him, would be known only through an investigation. 9.1. There is an allegation which should be investigated into as purity of administration of high office of Chief Minister would require such investigation. If there was no problem in the issue, the State would not have appointed a one man Commission of Inquiry or a Committee to go into the affairs of MUDA. The State is aware that there is i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld 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 imaginary apparent bias cannot lead to the Governor exercising discretion of taking a decision himself. He has to act with the aid and advice of the Council of Ministers. 12.2. He would submit that Section 17A of the Act clearly mandates that it is the Police Officer alone who should seek approval from the hands of the Competent Authority as the language in Section 17A is couched with the word "that no Police Officer shall conduct any enquiry or inquiry or investigation". He would elaborate this to contend that the complainant in the case at hand has sought approval from the hands of the Competent Authority. This is impermissible in law. 12.3. It is his further contention that the time line that is shown for the acts of the petitioner can nowhere lead to either a decision taken by the petitioner or a recommendation made by the petitioner for him to be drawn into the web of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 be denotified. 13.1. If they are shown to be de-notified and the land still vest with Devaraju, he would submit where from illegality would spring that too against the petitioner who is the popular Chief Minister in the history of Karnataka. He would add that the petitioner has been in power for the last 40 years. He would not fight for the ಜುಜಬಿ sites. 13.2. Insofar as the order of the Governor is concerned, he would only seek to add that the Governor has gone into irrelevant consideration in granting approval. It is his submission that the Governor should not have entertained the complainant. Hearing of the complainant at the stage of Section 17A is unknown. Therefore, with all these errors granting of approval under Section 17A would undoubtedly be an error. Both the learned senior counsel would project one fact of criminal anteceden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 offences punishable under Sections 384, 504 and 506 of the IPC is registered against the 3rd respondent. 14.1. The learned counsel would further clarify that if denotification had happened and if the wife of the petitioner did not know what is happening in the land or if Devaraju was still in possession of the property, the sale deed or the representation be noticed. The representation of the wife of the petitioner is that in 2001 itself MUDA had formed lay-out and she should get compensation at the rate of 50:50 ratio which was not even in existence on that day. Therefore, it is clear that what would happen in future is known to the wife of the petitioner. After these representations comes the amendment to the Rule. Even before the amendment, the wife of the petitioner had projected that she is entitled to compensation in the ratio of 50:50 and not 60:40. CLARIFICATORY SUBMI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld 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 Police Officer to seek approval from the Competent Authority? (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? (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? (7) Whether reference to Section 218 of BNSS in the impugned order vitiates the entire order? (8) Whether prima facie role of the petitioner is established? Issue No.1: Whether the petitions before the Governor and the complaints before the concerned Court were justified in the fact situation? ACTUAL FACTS AND THE FACTUAL ACTS: 18. The consideration of this issue would require noticing and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oted 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 terms of law; on 20-08-1997 the final notification and on 30-03-1998 determination of compensation and the notice of award. None came forward claiming compensation for the acquisition in reply to the award notice. MUDA then deposits the compensation amount before the jurisdictional civil Court. All that is necessary for a land acquisition to get complete did happen on the deposit of the award amount before the jurisdictional civil Court. This was done after following all the parameters, as necessary in law. 20. Between the dates of preliminary notification and final notification, it transpires that one Devaraju claiming to be the son of Ninga submits a representation to MUDA to drop Sy.No.464 measuring 3 acres 16 guntas from the acquisition proceedings. The communication dated 13-08-1996 reads as follows: MUDA did not act on this, but went on with the acquisition process. A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ual 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. Nowhere it reflected the name of Devaraju. 21. Here springs into the picture the family of the Chief Minister. One Devaraju who claiming to be the son of Ninga, executed a sale deed in favour of B.N. Mallikarjunaiah. B.N. Mallikarjunaiah is the brother-in-law of the petitioner. The sale deed is executed on 25-08-2004, by then, on 15-06-2004 sites were formed, areas were demarcated for park and other amenities and several sites had already been distributed to the allottees, they were 19 in number. The names of the allottees and the dates of distribution are as follows: It now becomes interesting to notice the sale deed executed by one Devaraju, in favour of the brother-in-law of the petitioner on 25-08- 2004. It reads as follows: (Emphasis supplied) What is discernible from the sale deed is, none of the factors that have happened from 1992 are even noticed. Devaraju was a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 possession of the property and him executing the Gift Deed after getting the lands converted agriculture to residential purposes. 23. After the Gift Deed is executed, begins the efforts of claiming compensation. A representation emanates from the wife of the petitioner on 23-06-2014, it reads as follows: It is interesting to notice the representation. The representation indicates few factors. They are, the MUDA had formed the layout and distributed the sites in the year 2001 itself. If the wife of the petitioner was aware that MUDA had distributed the sites in 2001 itself, how did her brother purchase a property which was already with MUDA and how it was accepted by way of a gift. It is here the needle of lurking suspicion about the transaction emanates. This representation is taken forward by a communication from Commissioner, MUDA to the Secretary, Urban Development Department. A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (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 acquired authority and 40% to the land loser. The 40% of the total extent of land acquired was to become the determination for compensation. The aforesaid notification amends the Rule by making the ratio of 60:40 to 50:50. 24. After all these proceedings, MUDA passes a resolution. The agenda for the resolution of MUDA insofar as the subject land is concerned reads as follows: It was resolved that in the ratio of 50:50 the compensation was to be given to the wife of the petitioner. Again the issue lies in cold storage for some time as after 2017 the next date on which it is decided to compensate the wife of the petitioner comes about on 20-03-2021. Proceedings on 20-03-2021 read as follows: The son of the petitioner Dr. Yathindra.S who was an MLA of the very same constituency - Varuna participates in the said meeting, which resolves as aforequoted. The wife of the petitione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 00/- 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 215 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/- 7 Smt.Parvathi B.M 5 12 x 18 =216 Mts 2325 Sq.Fts Vijaynagar, 3rd Stage, 'G' Block Rs.25,000/- Rs.54,00,000/- Rs.3,48,75,000/- 8 Smt.Parvathi B.M 5108 09 x 12= 108 Mts 1162.5 Sq.Fts Vijaynagar, 4th Stage, 2nd Phase Rs.23,312/- Rs.25,17,696/- Rs.1,74,37,500/- 9 Smt.Parvathi B.M 5085 09 x 12= 108 Mts 1162.5 Sq.Fts Vijaynagar, 4th Stage, 2nd Phase Rs.23,312/- Rs.25,17,696/- Rs.1,74,37,500/- 10 Smt.Parvathi B.M 11189 12 x 18 =216 Mts 2325 Sq.Fts Vijaynagar, 4th Stage, 2nd Phase Rs.23,312/- Rs.3,48,75,000/- Rs.50,35,392/- 11 Smt.Parvathi B.M 10855 12 x 18 =216 Mts 2325 Sq.Fts Vijaynagar, 4th Stage, 2nd Phase Rs.23,312/- Rs.50,35,392/- Rs.3,48,75,000/- 12 Smt.Parvathi B.M 12065 12 x 15=180 Mts 1937. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fairs. 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 to which compensation is determined at Rs. 3.56 lakhs to become Rs. 56/- crores is not the family of the petitioner. In the decision making process at certain time son of the petitioner was a party to the meeting which took a decision finally to allot 14 sites. It is too bleak contention meriting any acceptance albeit prima facie that the petitioner was not behind every thing standing just behind the curtain. It is not behind the smoke screen but behind the curtain even. 26. If events or the link in the chain of events are noted, there are few dots to be connected. It is that connection of dots that would require an inquiry or an investigation in the least. I say so for the reason that immediately after 14 sale deeds were registered in favour of the wife of the petitioner, the Urban Development Department issues directions to the Commissioner, MUDA to stop allocation of com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7A 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 amendments. Amongst them was a new Section 17A. A question arose as to who should grant approval. It was initially envisaged that the Lokpal or the Lokayukta should be empowered to grant approval, on a requisition or application under Section 17A as Section 17A was thought of a protective filter or an entry check point. It is then the bill was referred to the select committee which presented its report in the month of August 2016. The bone of contention as to who should grant approval, was changed from Lokpal or Lokayukta, to the Competent Authority who is empowered to grant sanction under Sectiion 19 of the PC Act for prosecution, to be the authority to grant approval under Section 17A. The present statute as it stands today is what is chiseled after 4 years of deliberation. The purport of Section 17A need not detain this Court for long or delve deep into the matter. This Court in W ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y, 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, where the alleged offence is relatable to any recommendation made or decisions taken by such public servant in discharge of his official functions or duties without the previous approval of the officer or authority concerned. 15. Clause (a) thereof provides that in case of public servant who is or was employed in connection with the affairs of the Union at the time when the offence alleged to have been committed, the previous approval of the Central Government shall be obtained. Clause (b) likewise provides that in case of a public servant who is or was an employee in connection with the affairs of the State at the time when the offence was alleged to have been committee, the approval of the State Government shall be obtained before proceeding. Clause (c) provides that in case of any other person who comes within the definition of public servant previous approval of the comp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 of an amendment to introduce the requirement of prior permission of the Government for investigation or inquiry under the Prevention of Corruption Act. 7. We are also aware that this will place you in the peculiar situation, of having to ask the accused himself, for permission to investigate a case against him. We realise that your hands are tied in this matter, but we request you to at least take the first step, of seeking permission of the Government under Section 17-A of the Prevention of Corruption Act for investigating this offence and under which, "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". (emphasis supplied) 118. Therefore, the petitioners have filed the complaint fully knowing that Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ween 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; investigation is a search. Therefore, the act casts an obligation of application of mind upon the authority to consider whether approval is sought for an enquiry, inquiry or an investigation. It becomes imperative for the authority to apply its mind to what is brought before it, as application of mind is the bedrock of any order that an authority passes, failing which, it would be contrary to the principles of natural justice, as non-application of mind is in itself violative of principles of natural justice." This Court considered the importance and purport of Section 17A. The petitioner is a public servant and the allegations against him are wanting to be investigated into. If investigation has to ensue, it must pass through the gates of 17A. Therefore, an approval under Section 17A from the hands of the Competent Authority is imperative, as it is the mandate of the statute. With ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hority, 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 concerned Court. 30. This Court, in DR. ASHOK V. v. STATE [Criminal Petition No.531 of 2022 decided on 4th July 2023] has held as follows: "In the light of Section 17A creating a protective filter for vexatious and frivolous prosecution and complaints to pass muster to the rigors of Section 17A, I am of the considered view that it must be observed with complete strictness bearing in mind public interest, and protection available to such officers against whom offences are alleged, failing which many a time it would result in a vexatious prosecution. This cannot however, be considered as a protective shield for the guilty, but a safeguard for the innocent. Therefore, its observance becomes mandatory ... ... ...... .....What would unmistakably emerge is, forum be it any; proceedings be it any; if offences punishable under the Prevention of Corruption Act, 1988 / 2018 is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecomes 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 not comply with the following: (i) The complaint should narrate that the complainant has made his efforts to register a crime before the Karnataka Lokayukta and no action is taken by the police on the complaint. Mere statement in the complaint would not suffice but documentary evidence to demonstrate such fact should be appended to the private complaint. (ii) The private complaint should also append prior approval granted by the competent authority to register a private complaint, akin to a prior approval for an FIR to be registered by the Investigating Agency as obtaining under Section 17A of the Act. This would become a prerequisite to the concerned Court to refer the matter for investigation under Section 156(3) of the Cr.P.C. (iii) The aforesaid direction (ii) would be applicable only if the offences alleged would be the ones punishable under the Prevention of Corr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hen 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 26-07- 2024 seeking approval to prosecute the petitioner. The petition submitted by the 3rd respondent is quoted hereinabove. What happens in the aftermath is what is required to be considered. On receipt of the petition from the 3rd respondent, on 26-07- 2024 what action is taken is borne out from the records. The proceedings of the day are as follows: "File No.GS 40 ADM 2024 Subject: Sanction for prosecution of Sri Siddaramaiah, Hon'ble Chief Minister of Karnataka. Reference: Petition submitted 1) Sri T.J.Abraham dated 26-07- 2024. 01. Kindly peruse the petition submitted by Sri T.J. Abraham dated 26-07-2024 placed in the file. 02. Wherein, the petitioner has requested for sanction for offences under Section 7, 9, 11, 12 & 15 of t he Prevention of Corruption Act, 1988 and Sections59, 61, 62, 201, 227, 228, 229, 239, 314, 316(b), 318(1)(2)(3), 319, 322, 324, 324(1)( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egations 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 within 7 days from 26-07-2024. The show cause notice resulted in two replies - one submitted by the petitioner and the other by the Cabinet, which is communicated by the Chief Secretary. On 1-08-2024 the Council of Ministers resolved to advice the Governor to withdraw the notice issued to the petitioner and reject the petition seeking sanction so filed by the 3rd respondent. The Cabinet was presided over by Sri D.K. Shivakumar, Deputy Chief Minister of the State of Karnataka as he was nominated to do so by the Chief Minister. The preamble reads as follows: "Show cause notice issued by the Hon'ble Governor of Karnataka to the Chief Minister to respond within 7 days as to why sanction for prosecution should ot be granted as requested by one Shri T.J. Abraham in his application dated 26-07-2024 - reg. CABINET DECISION The Cabinet meeting was presided over by Shri D.K. Shivakuma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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. iv. The Hon'ble Governor failed to take note of the fact that the application for sanction was also premature since the applicant had filed a complaint to the Lokayukta Police on 18-07-2024 and thereafter had also not 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. The Hon'ble Governor failed to take note of the fact that the entire allegations made by the applicant do not reveal any offence pun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rnor 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/- (D.K.Shivakumar) Deputy Chief Minister 1-08-2024." (Emphasis supplied) On 3-08-2024, the petitioner also submits his reply. The reply of the petitioner refers to the cabinet decision of 1-08-2024. The preamble of the reply reads as follows: "SIDDARAMAIAH VIDHANA SOUDHA, CHIEF MINISTER BENGALURU-560 001 Date: 3-08-2024. D.O.Letter No.UDD/248/MUD/2024(E) Dear Sir, 1. With reference to the show cause notice bearing No.GS 40 ADM 2024, dated 26-07-2024, issued to and addressed to me, I would like to bring to your notice as follows:- 2. The notice was received by my office at around 3.00 p.m. on 27-07-2024. The notice was accompanied with a copy of the petition dated 26-07-2024 and all annexures filed by one Sri T.J. Abraham, seeking sanction for prosecution against me, under Section 17A and 19 of the Prevention of Corruption Act, 1988 and Section 218 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stion 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 is for sanctions in the Raj Bhavan and without ensuring suitable enquiry including examination of official records available with the concerned department, proceed further on such application or decide such application. The fact remains, that the application filed by Sri T.J. Abraham was received by you on 26-07-2024 and, within few hours of receipt of such application you have proceeded to issue me with the show cause notice in question. It is rather ironical that a constitutional office required to discharge its functions in the manner provided under the Constitution, has chosen to, iin extreme urgency, proceed in the matter, bypassing all known constitutional requirements and procedures in this context, please take note of the following:" The reminder portion of the reply is verbatim similar to what the Cabinet decision was. The crux of the reply contains from paras 128 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 petition by a person with criminal antecedents and without examining the records, relevant material as well as the reply of the Chief Secretary dated 26-07-2024, added to the fact that several applications for sanction before him are long pending, such as proposal for prior approval u/s 17A of the Prevention of Corruption Act, 1988, dated 9.12.2021 against one Shashikala Jolle, former Minister and another proposal dated 26.02.2024 against Murgesh Nirani, former Minister and a permission for sanction under Section 19 of the Prevention of Corruption Act, 1988, dated 13-05-2024 against Janardhana Reddy, Member of Legislative Assembly and Former Minister. Therefore, the issuance of the show cause notice, is an act that suffers from legal mala fides as laid down by the Hon'ble Supreme Court in a catena of judgments including the ones referred to supra. viii. The entire sequence of eve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lication 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 prior approval and sanction sought by the petitioner by rejecting his application. 19. With the above details and along with records submitted, the file is placed before the Hon'ble for kind perusal and orders. Sd/- (R.Prabhushankar) Special Secretary to Governor 6-08-2024 20. Hon'ble Governor] Put up along with comparative statements of petitions, Chief Minister reply and cabinet decision. Sd/- 8-08-2024." (Emphasis supplied) It appears that the Governor perused the file, directs putting of comparative statements of the objections - Chief Minister's reply and the Cabinet decision. This is complied with and placed before the Governor on 14-08-2024. The notings made on 14-08-2024 in the file read as follows: "21. As directed at para-20, comparative statement of petitions received, from (1) Sri T.J.Abraham, (2) Sri Snehamayi Krishna and (3) Sri Pradeepkumar S. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 26-07-2024 along with the copy of the petition by T.J. Abraham and materials in support of the allegations was issued to Sri Siddaramaiah, Hon'ble Chief Minister of Karnataka. The reply to the show cause notice dated 3-08-2024 along with the annexures was received at the office of His Excellency the Governor of Karnataka on 4.08.2024. 29. It appears from the materials annexed to the reply to the show cause notice that vide note dated 27.07.2024 Sri Siddaramaiah, Hon'ble Chief Minister of Karnataka requested the Chief Secretary to place the show cause notice along with the copy of the petition and the materials in support of the allegations before the Council of Ministers for further consideration and examination. The Chief Secretary on 31-07-2024 took the opinion of Ld. Advocate General and the Council of Ministers vide resolution dated 1-08-2024 concluded as follows: "There ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 issue, disregarding the report of the Chief Secretary dated 26-07-2023. 31. In view of the averments made in the aforementioned petitions seeking grant of sanction for prosecution and the materials in support of the same, the subsequent issuance of show cause notice dated 26-07-2024, reply to the show cause notice by Shri Siddaramaiah, Hon'ble Chief Minister of Karnataka dated 3-08-2024, legal opinion of the Ld. Advocate General dated 31-07- 2024 and the decision of the Council of Ministers dated 1-08-2024, I am of the opinion, that, in exercise of my powers under Article 163(1) of the Constitution of India considering aforesaid materials placed before me and the facts and circumstances of the present matter, as a matter of propriety, I shall exercise my discretion by independently examining the aforesaid materials for following reasons: 31.1 It is seen from the resolution o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en 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 Siddaramaiah was the Member of Legislative Assembly from Chamundeshwari Constituency as well as Member of Mysuru Urban Development Authority, and further, this land was purchased by the brother-in-law of Sri Siddaramaiah, wherein, the seller was from the constituency of Chamundeshwari, and later on after getting the lnd converted in to the residential purpose gifted it to the wife of Sri Siddaramaiah, who became the owner of the property and the application for allocation of alternative sites come to be moved on the basis of relinquishment of agriculture land. On the basis of this application MUDA passed a resolution pursuant to the amendment to allot alternative sites. It has been specifically averred that the Rule was specifically amended from 40:60 to 50:50 to aid this transaction when Sri Siddaramaiah was the Chief Minister. Further, the petition seeking grant of sanction for prosecuti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 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 ini the knowledge they will not be prosecuted as the requisite sanction will not be granted. 31.7 On the point raised by the Council of Ministers that 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, Section 17A of Prevention of Corruption Act, 11988 provides that no enquiry or inquiry or investigation shall be conducted by a police officer into any offence alleged to have been committed by a public servant under the PC Act without prior approva ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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. 31.11 In view of the above facts and circumstances, I am satisfied that sanction can be accorded against the Chief Minister Shri Siddaramaiah on the allegations of having committed the offences as mentioned in the petitions of Sri T.J.Abraham, Sri Pradeep Kumar S.P. and Sri Snehamayi Krishna. 32. Hence, I hereby accord sanction against Chief Minister Sri Siddaramaiah, under Section 17A of the Prevention of Corruption Act, 1988 and Section 218 of the Bharatiya Nagarik Suraksha Sanhita, 2023 for the commission of the alleged offences as mentioned in the petitions. Sd/- (Thaawarchand Gehlot) 16-08-2024." (Emphasis supplied) The aforesaid decision of the Governor is communicated to the Chief Secretary, Government of Karnataka on 17-08-2024. The communication encloses the decision of the Competent Authority. The decision that is communicated reads as follows: "Decisio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 supports the allegations, therefore, the decision taken by the Council of Ministers is irrational. 05. The operative part of the Resolution of the Cabinet dated 1-08-2024 reads as follows: "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 Ahraham." 06. I have considered t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 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 offence. 11. In view of the above facts and circumstances, I am satisfied that sanction can be accorded against Chief Minister Shri Siddaramaiah on the allegations of having committed the offences as mentioned in the petitions of Sri T.J.Abraham, Sri Pradeep Kumar S.P. and Sri Snehamayi Krishna. 12. Hence, I hereby accord sanction against Chief Minister Sri Siddaramaiah under Section 17A of the Prevention of Corruption Act, 1988 and Section 218 of the Bharatiya Nagarik Suraksha Sanhita, 2023 for the commission of the alleged offences as mentioned in the petitions. Sd/- (Thaawarchand Gehlot) 16-08-2024" (Emphasis supplied) This brings the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 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 the States of Chhattisgarh, Jharkhand, Madhya Pradesh and Odisha, there shall be a Minister in charge of tribal welfare who may in addition be in charge of the welfare of the Scheduled Castes and backward classes or any other work. (1-A) The total number of Ministers, including the Chief Minister, in the Council of Ministers in a State shall not exceed fifteen per cent of the total number of members of the Legislative Assembly of that State: Provided that the number of Ministers, including the Chief Minister, in a State shall not be less than twelve: Provided further that where the total number of Ministers, including the Chief Minister, in the Council of Ministers in any State at the commencement of the Constitution (Ninety-first Amendment) Act, 2003 exceeds the said fifteen per cent or the number specified in the first proviso, as the case may be, then, the total numbe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 by personally applying his mind and/or whether, under all circumstances, he must act only on the aid and advice of the Council of Ministers. It was inter alia held as follows: (SCC pp. 848-49, paras 54-56) "54. The provisions of the Constitution which expressly require the Governor to exercise his powers in his discretion are contained in articles to which reference has been made. To illustrate, Article 239(2) states that where a Governor is appointed an administrator of an adjoining Union Territory he shall exercise his functions as such administrator independently of his Council of Ministers. The other articles which speak of the discretion of the Governor are paragraphs 9(2) and 18(3) of the Sixth Schedule and Articles 371-A(1)(b), 371-A(1)(d) and 371-A(2)(b) and 371- A(2)(f). The discretion conferred on the Governor means that as the constitutional or formal head of the S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... out 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 refuses to quit office; (c) the dissolution of the House where an appeal to the country is necessitous, although in this area the head of State should avoid getting involved in politics and must be advised by his Prime Minister (Chief Minister) who will eventually take the responsibility for the step. We do not examine in detail the constitutional proprieties in these predicaments except to utter the caution that even here the action must be compelled by the peril to democracy and the appeal to the House or to the country must become blatantly obligatory. We have no doubt that de Smith's statement (Constitutional and Administrative Law - by S.A. de Smith - Penguin Books on Foundations of Law) regarding royal assent holds good for the President and Governor in India: 'Refusal of the royal assent on the ground that the Monarch strongly disapproved of a Bill or that it was intens ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 considered. But then the very fact that he was a member of the Selection Board must have had its own impact on the decision of the Selection Board. Further admittedly he participated in the deliberations of the Selection Board when the claims of his rivals particularly that of Basu was considered. He was also party to the preparation of the list of selected candidates in order of preference. At every stage of his participation in the deliberations of the Selection Board there was a conflict between his interest and duty. Under those circumstances it is difficult to believe that he could have been impartial. The real question is not whether he was biased. It is difficult to prove the state of mind of a person. Therefore what we have to see is whether there is reasonable ground for believing that he was likely to have been biased. We agree with the learned Attorney General that a mere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 situation arises as a result whereof the Council of Ministers disables or disentitles itself, the Governor in such matters may not have any role to play. Taking a cue from Antulay [Ed.: See R.S. Nayak v. A.R. Antulay, (1984) 2 SCC 183. Other connected Antulay cases are reported at (1984) 2 SCC 500; (1984) 3 SCC 86; (1986) 2 SCC 716; 1986 Supp SCC 510; (1988) 2 SCC 602] , it is possible to contend that a Council of Ministers may not take a fair and impartial decision when their Chief Minister or other members of the Council face prosecution. But the doctrine of "apparent bias", however, may not be applicable in a case where a collective decision is required to be taken under a statute in relation to former Ministers. In a meeting of the Council of Ministers, each member has his own say. There may be different views or opinions. But in a democracy the opinion of the majority would ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er 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. The learned counsel appearing for the petitioner has strenuously contended that a 9 Judge Bench in the case of NABAM REBIA supra has distinguished the said judgment, alas, it has not. The Apex Court in the case of NABAM REBIA has held as follows: "155. We may, therefore, summarise our conclusions as under: 155.1. Firstly, the measure of discretionary power of the Governor, is limited to the scope postulated therefor, under Article 163(1). 155.2. Secondly, under Article 163(1) the discretionary power of the Governor extends to situations, wherein a constitutional provision expressly requires the Governor to act in his own discretion. 155.3. Thirdly, the Governor can additionally discharge functions in his own discretion, where such intent emerges from a legitimate interpretation of the provision concerned, and the same cannot be construed otherwise. 155.4. Fourthly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 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 his majority in the Legislative Assembly." (Emphasis supplied) Nowhere the Apex Court in NABAM REBIA has distinguished the judgment in the case of M.P.SPECIAL POLICE ESTABLISHMENT. In fact is it more than once discussed and reiterated in the aforequoted paragraph-paragraph 362 of NABAM REBIA. The learned senior counsel for the petitioner has taken this Court through the judgment in SAMSHER SINGH v. STATE OF PUNJAB - (1974) 2 SCC 831 and the judgment in the case of STATE OF MAHARASHTRA v. RAMDAS SHRINIVAS NAIK - (1982) 2 SCC 463. There can be no qualm about the principles laid down therein. They were dealing with the role of the Governor in certain circumstances and not the circumstance which has emanated in the case at hand. Noticing the judgment of the Apex Court in M.P. SPECIAL POLICE ESTABLISHMENT's case supra what would unmistakably emerge is that in certain situation th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om 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 from the circumstances by court objectively, or, upon the basis of the impressions that might reasonably be left on the minds of the party aggrieved or the public at large. 16. The tests of "real likelihood" and "reasonable suspicion" are really inconsistent with each other. We think that the reviewing authority must make a determination on the basis of the whole evidence before it, whether a reasonable man would in the circumstances infer that there is real likelihood of bias. The Court must look at the impression which other people have. This follows from the principle that justice must not only be done but seen to be done. If right minded persons would think that there is real likelihood of bias on the part of an inquiring officer, he must not conduct the enquiry; nevertheless, there must be a real likelihood of bias. Surmise or conjecture would not be enough. There must exi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 need not be bound by it - one such exception is the sanction/approval against the Chief Minister. 38. Whether the order of the Governor suffers from nonapplication of mind. The order that is communicated to the petitioner is quoted supra. Complete proceedings in the file maintained in the Secretariat of the Governor are also quoted supra. The Secretary of the Governor has communicated the decision of the Governor which thus contains all the material though excerpts of the decision. The decision runs into several pages. I have perused the entire file; the documents that are in the file run into 1200 pages. The comparative chart of the complaint, replies and the analysis are in great elaboration. This Court is not testing the order passed by the Disciplinary Authority or an Officer of the State. It is testing the order passed by the high functionary. The high functionary in the case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 of any statutory or administrative requirement to record reasons, the order of the administrative authority is not rendered illegal for absence of reasons. If any challenge is made to the validity of an order on the ground of it being arbitrary or mala fide, it is always open to the authority concerned to place reasons before the court which may have persuaded it to pass the orders. Such reasons must already exist on records as it is not permissible to the authority to support the order by reasons not contained in the records. Reasons are not necessary to be communicated to the government servant. If the statutory rules require communication of reasons, the same must be communicated but in the absence of any such provision absence of communication of reasons do not affect the validity of the order. ... ... ... 10. There is no dispute that there is no rule or administrative ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns 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 even in the order. There are elaborate reasons in the order, and there is abundant reasoning in the file. Therefore, it does fall within the test of E.G. NAMBUDRI's case supra. Painstaking submissions are made that the order of the Governor does not have semblance of reasoning. If what is quoted hereinabove is noticed 'it is not semblance, but abundance of reasoning'. The Governor is not acting on any material of investigation, to direct prosecution against the petitioner, it is at the threshold as to whether approval should be granted under Section 17A of the Act. Approval is only for the purpose of beginning of investigation, enquiry or inquiry. In the considered view of this Court, it is not a stage where any **gallivant would become necessary by the Competent Authority by going deep into the facts of the case. 39. Placing reliance upon the judgment of the Apex Court in the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion 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 decision taken in undue haste would not vitiated the decision unless the decision suffers from non-application of mind. The complainant is heard, petition and the documents produced are perused and a show cause notice is issued. What else is required in law is ununderstandable. The allegations in the complaint were, according to the Governor, grave. Therefore, immediate action was taken in issuing the show cause notice. This cannot be imagined to result in vitiating the entire order itself. It is apposite to refer to the judgment of the Apex Court in this regard in the case of B.P.L.LIMITED v. S.P. GURURAJA [(2003) 8 SCC 567] wherein it is held as follows: "34. Undue haste also is a matter which by itself would not have been a ground for exercise of the power of judicial review unless it is held to be mala fide. What is necessary in such matters is not the time taken for allotment but ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hom 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 only to seek a reply from the hands of the petitioner or the Cabinet, it does not mean that it must comply with the principles of natural justice. The Governor has issued a notice to elicit reply only on the allegations that were found in enormity in the file. Therefore, the bleak plea of failure of principles of natural justice is also sans countenance. **Reference being made to the judgment of the Apex Court in the case of THE CHAIRMAN, BOARD OF MINING EXAMINATION AND CHIEF INSPECTOR OF MINES V. RAMJEE [(1977)2 SCC 256] wherein the Apex Court has held as follows: "13. The last violation regarded as a lethal objection is that the Board did not enquire of the respondent, independently of the one done by the Regional Inspector. Assuming it to be necessary, here the respondent has, in the form of an appeal against the report of the Regional Inspector, sent his explanation to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 only as an approval under Section 17A of the Act and not an order for grant of sanction under Section 218 of BNSS. The issue is answered accordingly. Issue No.8: Whether prima facie role of the petitioner is established? THE NUCLEUS OF THE CONUNDRUM - Alleged role of the petitioner Answer to this issue would be a sequel to what is answered qua issue No.1. - Timeline of power: 43. The petitioner has been in political life spanning over 40 years. He comes to the helm of affairs, for the first time, when he becomes the Deputy Chief Minister, in the State of Karnataka and holds the said post for three years between 1996 and 1999, being an MLA from Chamundeswari Constituency, in whose precincts MUDA functions. After 1999, the petitioner was not a law maker, as he had lost the elections. He swings back, as a law maker and again becomes a Deputy Chief Minister during 2004-200 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 family of the petitioner comes into the story. 46. The brother-in-law of the petitioner applies for conversion of the land from agriculture to residential. The Revenue Inspector, the Tahsildar and the Deputy Commissioner visit the spot and prepare reports that there is not development in the land and it is entitled for conversion from agriculture to residential purposes. The land is converted. The allegation is, that the land in which sites had already been formed and distributed to the allottees could not have been converted from agriculture to residential purpose. It cannot but be prima facie construed that the reports were prepared by the Revenue Inspector, Tahsildar or the Deputy Commissioner sitting in the respective chambers. After conversion comes the gift in the year 2010 in favour of the wife of the petitioner. The petitioner was in power, has been in power, from 2004 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 formed by MUDA and not in a layout that had already been formed in the year 1991, as Vijaynagar, III stage was a layout that was formed wayback in the year 1991, or at best prior to Devanuru Badavane. It exists in the upscale area of the City of Mysore. 50. The sale deed is executed by MUDA of 14 sites. It now becomes necessary to notice one of the sale deeds. The sale deed 12-01-2022 reads as follows: What is perceptible from the sale deed is, that it is executed in terms of the incentive scheme rules, namely Mysore Urban Development Authorities (Incentive Scheme for Voluntary Surrender of Land) Rules, 1991. A perusal at the said Rules would indicate that a citizen who relinquishes the property in MUDA would be entitled to 2 sites measuring 40x60' which would amount to 4,800 sq.ft. for relinquishing more than 3 acres. It shocks the conscience of the Court as to how much is give ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 MUDA gives him Rs. 62 crores, he would give back the property. Therefore, merely because the wife of the petitioner has indulged in all these acts, legal or illegal, the petitioner cannot be said to be completely ignorant of what is happening in the life of his wife, qua these factors. It, prima facie, depicts stretching of the arms of undue influence and portrays abuse of power of the seat of the Chief Minister or any other post held by the petitioner. 54. It now becomes germane to notice the provisions under which approval is sought. They are under Sections 7, 9, 11, 12 and 15 of the Act. They read as follows:- "7. Offence relating to public servant being bribed.-Any public servant who,- (a) obtains or accepts or attempts to obtain from any person, an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 purposes of this section, a person is said to give or promise to give any undue advantage to a public servant, if he is alleged to have committed the offence under Section 8, whether or not such person has been prosecuted for such offence. (3) For the purposes of Section 8 and this section,- (a) "commercial organisation" means- (i) a body which is incorporated in India and which carries on a business, whether in India or outside India; (ii) any other body which is incorporated outside India and which carries on a business, or part of a business, in any part of India; (iii) a partnership firm or any association of persons formed in India and which carries on a business whether in India or outside India; or (iv) any other partnership or association of persons which is formed outside India and which carries on a business, or part of a business, in any part of India; ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted 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 offence is committed in consequence of that abetment, shall be punishable with imprisonment for a term which shall be not less than three years, but which may extend to seven years and shall also be liable to fine. 15. Punishment for attempt.-Whoever attempts to commit an offence referred to in 20[clause (a)] of sub-section (1) of Section 13 shall be punishable with imprisonment for a term 21[which shall not be less than two years but which may extend to five years] and with fine." Section 7 deals with offence relating to public servant being bribed. Section 9 deals with offence relating to bribing of public servant by a commercial organization. Section 11 deals with a public servant obtaining undue advantage without consideration from a person concerned in a proceeding or a business transaction by the public servant. Section 12 deals in abetment of offence. Section 15 deals ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fit 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 department issues directions to the Commissioner, MUDA to stop allocation of compensatory sites till guidelines are formulated. As an icing on the cake, on 27-10-2023 when the petitioner is again the Chief Minister, the Government withdraw the resolution of MUDA, which was for grant of compensatory land at 50:50 ratio, in which the son of thepetitoner had participated. The Government Order dated 27-10-2023 reads as follows: It is sought to be withdrawn on the ground that while so resolving, the opinion of the Deputy Commissioner or his report is not forthcoming. Therefore, if the grant of sites, as compensatory to usage was under the resolution, is itself withdrawn to be contrary to law, what happens to the 14 sites that is granted on the basis of an illegal resolution, is a matter that requires investigation. 56. If this were to be a case of common man, he would not have fough ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 this Court to consider as to why approval under Sectiion 17A is denied in that case and it is granted in this case. This case has been decided or a decision in the case at hand is arrived at, on the material available before the Court. SUMMARY OF FINDINGS: i. The complainants were justified in registering the complaint or seeking approval at the hands of the Governor. ii. The approval under Section 17A of the PC Act is mandatory in the fact situation. iii. Section 17A nowhere requires Police Officer to seek approval in a private complaint registered under Section 200 of the Cr.P.C./223 of BNSS against a public servant for offences punishable under the provisions of the Act. It is the duty of the complainant to seek such approval. iv. The Governor in the normal circumstance has to act on the aid and advice of the Council of Ministers as obtaining under Article 163 of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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