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2025 DIGILAW 2128 (KER)

Girija Devi v. State Of Kerala

2025-08-01

A.BADHARUDEEN

body2025
ORDER : A. BADHARUDEEN, J. The 4th accused in C.C. No. 11 of 2022 on the files of the Enquiry Commissioner and Special Judge, Muvattupuzha, under the Prevention of Corruption Act, arising out of Crime No.8/2014/EKM/VACB, Ernakulam, has filed this Criminal Miscellaneous Case seeking quashment of the proceedings against him in the said case. 2. Heard the learned counsel for the petitioner/4th accused and the learned Public Prosecutor representing VACB, in detail. 3. As per the Final Report, the allegation of the prosecution is as follows: “Sri.J.Rajan, S/o Yohannah. Manjadi Thekkethil House, Aymanam P.O. Kottayam, while working as Building Inspector of Kochi Corporation, Vyttila Zonal office (A1), Sri. K.P. Ramachandran Nair, S/o Parameswaran Pilla, 19/814, Pullardesom Road, Palluruthy, Kochi-6, while working as Building Inspector of Kochi Corporation, Vyttila Zonal office (A2), Smt. Girijadevi P.G, W/o Balakrisnan 19/814, Krishnagiri House, Chambakulam, Kochi-21, while working as Assistant Executive Engineer, Kochi Corporation, Vyttila Zonal Office (A4). Sri. Nahas. N.M. S/o Moideedn, 04/4 B. Marine Plaza, Kochi-18 while working as Town Planning Officer, Kochi Corporation (A5). Sri.Ajayaghosh, K.D., S/o Damodharan, Kalathumkadavil House, RSAC Road. Vyttila, Kochi, while working as Town Planning Officer, Kochi Corporation (A6), Sri. Jayakumar, K.N. S/o Nanu.K. 19/814. Thripuram House, Kollamkudinugal, Kakkanad, while working as Building Inspector, Kochi Corporation, Vyttila Zonal office (A7), Sri.Jose Michle T.J, S/o T.M John, Thaikoottathil House, Kannamaly P.O., Kattiparambu. Kochi, while working as a Town Planner, Kochi Corporation (A8), Sri.Antony Fernandas, S/o. Vincent Fernandas, Wince Dale. Telephone Exchange Road, Alapuzha West Village, while working as a Building Inspector, Kochi Corporation, Vyttila Zonal Office, Kochi Corporation (A9). Sri R. Sreekumar, S/o Raghavan Pilla, Rohini House, Thrikkakara, Near Navanirman HSS. Kochi, while working as Assistant Executive Engineer, Kochi Corporation (A10), Sri. Raju Mathwes, S/o Mathew, Akkapadikkal House, Kadalikkadu, Muvattupuzha, while working as Town Planner. Kochi Corporation (A11), Sri Sathyadas, S/o Sankaran Nair, Sreemandiram House, Kumaramangalam. Thodupuzha, while working as a Building Inspector, Kochi Corporation. Vyttila Zonal Office (A12). Smt. Moly. P.R. W/o Pradeepkumar, Bodhi House, Vettuveni, Haripad, now residing at C/3. Jawahal Nagar, Thiruvananthapuram, while working as Assistant Executive Engineer, Kochi Corporation (A13), and Sri Subhash. K.S. S/o Sreedharan K, Kadvail House, Kunnumpuram, Kakkanad, while working as Town Planner-Kochi Corporation ( A14) and as such being public servants, abused their official position and in furtherance of it, the said Sri.J.Rajan (A-1) and Sri. Jawahal Nagar, Thiruvananthapuram, while working as Assistant Executive Engineer, Kochi Corporation (A13), and Sri Subhash. K.S. S/o Sreedharan K, Kadvail House, Kunnumpuram, Kakkanad, while working as Town Planner-Kochi Corporation ( A14) and as such being public servants, abused their official position and in furtherance of it, the said Sri.J.Rajan (A-1) and Sri. K.P. Ramachandran Nair (A-2), while officiating as a Building Inspectors in the Engineering wing of Kochi Corporation, abused their official power for making an unlawful gain to Heera Construction Company, conspired with its Managing Director, Sri. K.R. Babu. S/o Aliyar Kunju, Heera House, Cpp.Gold Club, TK.V Nagar, Kowdiyar, Thiruvananthapuram (A-3), and permitted to construct a flat by encroaching Government-owned Kayal Purambok in Sy. No.572/2 & 1038 of Elamkulam Village at Chilavannoor. The said Sri. K.R Babu (A-3) while working as Managing Director, Heera Constructions and Sri Gopakumar, S/o Sivasankaran Nair, Somajam, Manamel Temple Road, Vyttila, Erakulam while working as Architect, Kumar Group, Kochi ( A-15) conspired with the above said accused persons who were government officials for getting unlawful gain by constructing a flat in Sy No 572/3 with encroached government land from Sy. No.1038 and 572/2 by violating the CRZ notification 1991 and the said A3 Sri. K.R. Babu encroached a total area of 20.555 cents of government land with the help of the above-said accused in the above survey nos., in which building permits: Partial Occupancy and Final Occupancy "were issued by the said accused during the period 2005 to 2010, and for the said illegal act, the said A1- Sri. J Rajan recommended original permit on 19.01.2005, A-2 Sri.K.P.Ramachandran Nair recommended the revised permit on 02.02.2006. A-4.Smt.Girijadevi recommended and issued the original building permit on 20.01.2005, revised building permit on 10.06.2006, partial occupancy on 10.04.2008, A5-Sri Nahas N.M. approved the original building permit on 20.01.2005, A-6 Sri. Ajayaghosh, K.D. approved revised building permit on 20.02.2006, A-7 Sri. Jayakumar KN recommended for the first partial occupancy on 09.04.2008, A-8 Sri Jose Michel T.J approved Ist partial occupancy on 18.04.2008, A-9 Sri Antony Fernandas recommended 2nd partial occupancy on 26.02.2009, A-10 Sri. R. Sreekumar approved and issued 2nd partial occupancies on 03.07.2009, A-11 Sri Raju Mathew approved partial occupancy on 28.07.2009, A-12 Sri Sathydas recommended for final occupancy on 14.10.2010. R. Sreekumar approved and issued 2nd partial occupancies on 03.07.2009, A-11 Sri Raju Mathew approved partial occupancy on 28.07.2009, A-12 Sri Sathydas recommended for final occupancy on 14.10.2010. A-13 Smt. Moly P.R recommended and issued final occupancy on 15.11.2010, A-14 Sri Subhash K.S approved final occupancy on 04.11.2010 and thereby it is revealed that the above public servants have committed criminal misconduct for the undue advantage of the said A-3 Sr.K.R Babu without any public interest and thereby the accused committed offences under section 13(2) r/w 13(1) (d) PC Act, section 120(B) IPC. 4. Addressing the allegation against the petitioner/4th accused, as per the Final Report, the same is to the effect that Smt. Girijadevi P.G. (A4) recommended and issued the original building permit on 20.01.2005, a revised building permit on 10.06.2006, and also issued a partial occupancy certificate on 10.04.2008 in relation to the construction at the instance of the 3rd accused in Sy. No.572/2. It is submitted by the learned counsel for the petitioner/4th accused that as per Annexure-A1, the 3rd accused in this case had submitted an application for construction in the property situated in Survey No. 572/1, 3-part. Upon processing the application (Annexure-A1), the building permit (Annexure-A2) was issued on 25.01.2005 for a total plinth area of 21,147.53 m². Subsequently, a revised building permit, marked as Annexure-A3, was issued on 21.04.2006, enhancing the plinth area to 24,499.48 m². The learned counsel for the petitioner/4th accused emphasized that while issuing Annexure-A2 and Annexure-A3 building permits, the construction was permitted within the land owned by the 3rd accused, and that no construction was authorized over Government land. It is further submitted that as per Annexure-A4, the partial occupancy certificate was issued by the petitioner/4th accused on 06.06.2008. Thereafter, as per Annexure-A5, the then Assistant Executive Engineer, who succeeded the petitioner, issued the final occupancy certificate upon noting that the construction was completed on 02.09.2010. According to the learned counsel for the petitioner, the petitioner served as Assistant Executive Engineer in the Kochi Corporation during three distinct periods: viz, from 08.06.2004 to 27.07.2004, from 07.10.2005 to 12.06.2008, and from 14.07.2009 to 22.06.2010. According to the learned counsel for the petitioner/4th accused, subsequently, as per Annexure-A6, a Writ Petition (C) No. 14123 of 2011 had been filed by one Mr. According to the learned counsel for the petitioner/4th accused, subsequently, as per Annexure-A6, a Writ Petition (C) No. 14123 of 2011 had been filed by one Mr. P.M. Poulose, alleging that the 3rd accused herein, who was arrayed as the 4th respondent in the said writ petition, had encroached upon Government land and extended construction therein while constructing the flat covered by Annexures-A3 and A4 building permits, obtained illegally. The said allegation was raised through Ext.P3 complaint submitted before the 1st respondent, the District Collector. Pursuant to the order dated 16.06.2011 passed by this Court, proceedings were initiated in that regard. These proceedings were later challenged before the Tribunal for Local Self Government Institutions (for short, "LSG Tribunal"). Subsequently, as per Annexure-A16 letter dated 27.11.2017, the petitioner/4th accused lodged a complaint before the Sub Inspector of Police, Thevara, stating that in accordance with Reference No. 1 (i.e., the direction issued by the LSG Tribunal in Appeal No. 110/2014 dated 16.11.2016), the 3rd accused had failed to vacate the encroached Government land, and police assistance was sought for implementing the said direction to get back the encroached land on demolishing the illegal construction. Further, on 17.11.2017, as per Annexure-A15, after disposal of Appeal No. 110/2014 by the LSG Tribunal, the Secretary of the Corporation also issued a notice to the 3rd accused directing demolition of the construction made by encroaching upon Government land. 5. The crux of the arguments advanced by the learned counsel for the petitioner/4th accused is that the petitioner had not issued any licence or permit for making illegal constructions by encroaching upon Government land, and that such constructions were carried out without the knowledge or consent of the petitioner/4th accused. Further permits were issued on satisfying that the construction sought is legally allowable. It is further submitted that the procedure for recovery of the Government land by demolishing the unauthorised construction had already been initiated, though the same was stayed by this Court in a writ petition filed by the owners of the Heera Flat, which is still pending consideration. According to the learned counsel for the petitioner/4th accused, in this case, the prosecution materials in no way disclosed any offence as against the petitioner/4th accused, and therefore, the quashment prayer is liable to succeed. 6. According to the learned counsel for the petitioner/4th accused, in this case, the prosecution materials in no way disclosed any offence as against the petitioner/4th accused, and therefore, the quashment prayer is liable to succeed. 6. Repelling the above contention, the learned Public Prosecutor submitted that, as of now, and as per the order of the LSG Tribunal and the plan produced as Ext.K, it is evident that 17.74 cents of river area in Survey No. 1038 and 2.815 cents of land in Survey No. 572/2, thus a total extent of 20.555 cents of land were encroached upon by the 3rd accused, who constructed flat in his property and in Government land. According to the learned Public Prosecutor, the conspiracy hatched in between the accused to be inferred from the report submitted by the 1st accused, who stated that there were five houses nearby the flat construction, and upon verification of the revenue assessment details, it was found that there had been no violation of the Coastal Regulation Zone (CRZ) norms. It is further pointed out that the said houses were also constructed on Government land, and this fact is supported by the statement of one Mary Joseph, a resident of one of the said houses, who had obtained patta only on 01.11.2016, long after the disputed construction. The learned Public Prosecutor submitted that, at the time when the building permit was granted by the petitioner, the Coastal Regulation Zone Notification dated 19.02.1991 modified with effect from 9th July 1997 as per S.O. No. 494/E vide Gazette of India (Extraordinery) 353 was in force, and as per the classification – CRZ-II(1), buildings shall be permitted only on the landward side of the existing road or authorised structures, subject to local building regulations and FSI norms as applicable in the year 1991. Therefore, the building permits, having been applied for without disclosing the existence of the river line, and showing unauthorised structures as authorised structures, ought not to have been granted, and as such, issuance of building permits at the instance of the petitioner itself is illegal and the same is in violation of the CRZ notification. Therefore, the building permits, having been applied for without disclosing the existence of the river line, and showing unauthorised structures as authorised structures, ought not to have been granted, and as such, issuance of building permits at the instance of the petitioner itself is illegal and the same is in violation of the CRZ notification. It is argued further that the issuance of the said permits was the result of a conspiracy between Heera Constructions and the other accused, including the petitioner/4th accused, and the same resulted in construction in violation of the CRZ-II notification and construction by encroaching upon the Government land. 7. In this regard, it is submitted by the learned counsel for the petitioner/4th accused that the Coastal Regulation Zone Notification dated 19.02.1991 did not prohibit the issuance of construction permits in a manner similar to the later Coastal Regulation Zone Notification dated 06.02.2011 and the CRZ notification during 2011 has no application in the present case, where permit was issued in the year 2005. Therefore, the grant of the permits and issuance of the partial occupancy certificate by the petitioner was not in violation of CRZ notification; rather, the same is in accordance with law. 8. The learned Public Prosecutor, however, placed significant reliance on the statement of CW3 — Sri Kalarasan, Senior Environmental Engineer, Directorate of Environmental and Climate Change, Department of Environment, Thiruvananthapuram, who filed a report stating that regulatory activities in the CRZ-II area under the 1991 Notification were violated during the issuance of the building permit. According to the learned counsel for the petitioner/4th accused, mere violation of rules and departmental norms would not constitute an offence punishable under Section 13 (1)(d) of the Prevention of Corruption Act . It is submitted that dishonest intention (mens rea) is sine qua non to attract penal consequences under Section 13 (1)(d) of the PC Act. In support of this contention, the learned counsel for the petitioner/4th accused relied on the decision of this Court reported in 2024 (2) KHC 134 — Surendranath C. v. State of Kerala . 9. It is submitted that dishonest intention (mens rea) is sine qua non to attract penal consequences under Section 13 (1)(d) of the PC Act. In support of this contention, the learned counsel for the petitioner/4th accused relied on the decision of this Court reported in 2024 (2) KHC 134 — Surendranath C. v. State of Kerala . 9. It is further argued that in cases involving malfeasance, misfeasance, or alleged wrongful administration, or in matters arising from the discharge of official duties by public servants, prosecution under the Prevention of Corruption Act should not be initiated, nor should disciplinary action be permitted, unless there is clear evidence of criminal intent or dishonest conduct on the part of the concerned officer. In support of this contention, reliance was also placed on the decision of this Court reported in 2024 (2) KHC 37 — Manimekhala S. v. State of Kerala Apart from the above, the learned counsel referred to the decision reported in 2025 KHC Online 700 — Vineesh D. v. State of Kerala , wherein it was held that when there is no pecuniary gain or loss to any party, an offence under Section 13 (1)(d) read with Section 13 (2) of the Prevention of Corruption Act would not be attracted. Regarding the application of the Coastal Regulation Zone Notification, the learned counsel for the petitioner/4th accused relied on the decision of the Apex Court reported in 2018 KHC 6009 — Secretary, KSCMA v. DLF Universal Ltd. and Others though the same has no direct application in this case. 10. Having considered the rival contentions, the point for determination is whether the petitioner/4th accused herein as part of conspiracy hatched between her and the other accused issued the original and revised building permits, so also issued the partial occupancy certificate, and thereby aided the 3rd accused to gain illegal pecuniary advantage by completing constructions in violation of the 1991 CRZ Notification modified in the year 1997, and thereby facilitated construction over Government property, resulting in encroachment of approximately 20 cents of Government land. 11. It is pointed out by the learned Public Prosecutor, referring to CRZ–II substituted by S.O. No. 494/E dated 09.07.1997, vide Gazette of India (Extraordinary) No. 353 that the argument of the learned counsel for the petitioner that CRZ notification 1991 has no application to the present case is unsustainable since the permit was issued in 2005. 11. It is pointed out by the learned Public Prosecutor, referring to CRZ–II substituted by S.O. No. 494/E dated 09.07.1997, vide Gazette of India (Extraordinary) No. 353 that the argument of the learned counsel for the petitioner that CRZ notification 1991 has no application to the present case is unsustainable since the permit was issued in 2005. On perusal of the records in consonance with the submission made by the learned Public Prosecutor, it is discernible that knowing fully well that there were restrictions to effect constructions in the – 26 – area of CRZ zone on the riverside, initially, the 1st accused showed five buildings on the side of the river so as to make it appear that there were private holdings nearby the zone to escape from the CRZ–II restrictions as modified in the year 1997. As per the plan produced along with the building permit, the existence of river was not shown in the plan, and the petitioner is well aware of the fact that there was river, so that the modified CRZ restrictions as per 1997 norms if applied to the site of construction permit based on the revised plan and the partial occupancy certificate could not be issued. Thus, the first and foremost allegation of the prosecution herein is that the plan itself was approved after violating CRZ notification 1991 modified in the year 1997, and the entire construction also was made in violation of the said notification as specifically stated by CW3, Sri.Kalarasan, Senior Environmental Engineer based on his report. It is discernible from the prosecution records further that while making construction on the basis of permits that were obtained in violation of CRZ restrictions the 3rd accused made illegal constructions and thereafter encroached upon 20.555 cents (17.74 cents in the river area in Sy No. 1038 and 2.815 cents of land in Sy No. 572/2) and made construction for which the petitioner also issued partial occupancy certificate, and later her successor issued full occupancy certificate. 12. Going through the prosecution allegations supported by the material discussed, including the CRZ notification modified in the year 1997, it could be gathered that there are material in abundance to see the involvement of the petitioner in permitting illegal constructions, which led to encroachment in Government land prima facie. 12. Going through the prosecution allegations supported by the material discussed, including the CRZ notification modified in the year 1997, it could be gathered that there are material in abundance to see the involvement of the petitioner in permitting illegal constructions, which led to encroachment in Government land prima facie. In such a case, quashment of the entire proceedings against the petitioner could not succeed, and the prosecution records would go to show that, in this matter, framing of charge and trial thereof are absolutely necessary. Holding so, this petition is dismissed. 13. Interim stay in force shall stand vacated. 14. It is specifically made clear that the observations in this order have no binding effect while deciding the case on merits, and the same are intended to address the plea of quashment. The Registry is directed to forward a copy of this order to the trial court for information and compliance.