Manoj C.A. vs State of Kerala

P. Ubaid, J.—Hostility between two neighbours led to a complaint before the Enquiry Commissioner and Special Judge Thrissur. The subject matter is an unauthorized construction alleged have been made by the third respondent herein. On a complaint made by the revision petitioner, the Valakom Grama Panchayath initiated action, and conducted enquiry. On the finding that the construction made by the third respondent is in violation of the Kerala Building Rules, the Panchayath Council took decision on 26.11.2013 to have the unauthorized construction demolished. Accordingly, the Panchayath Secretary issued notice to the third respondent on 29.11.2013, requiring him to demolish the unauthorized construction. As a continuation of the earlier resolution, the Panchayath Council again decided on 26.11.2013 to cause demolition of the unauthorized construction made by the third respondent, and accordingly the Secretary was authorized to take necessary steps. In spite of repeated resolution made by the Panchayath Council the Secretary did not initiate prompt action, which invited another complaint by the revision petitioner. However ignoring the directions of the Panchayath Council, the Secretary made another enquiry, and found that the alleged construction will make some encroachment. However the Secretary kept the matter pending in view of another proceeding before the Revenue Divisional Officer, Muvattupuzha. At that juncture the revision petitioner suspected something wrong, and believed that the Secretary did so, or the Secretary did not initiate action because he was influenced or won over by the third respondent and he even received bribe from the third respondent. Alleging these facts the revision petitioner filed complaint before the Enquiry Commissioner and Special Judge, arraigning the Panchayath Secretary as the first accused, and the third respondent herein as the second accused. The said complaint was received as Crl.M.P. 554/14 by the trial court. On a perusal of the complaint and on hearing the learned counsel the trial court found that the complaint does not contain anything for a prosecution under the Prevention of Corruption Act. The trial court also found that the complainant will have to proceed in civil action for appropriate remedy. Accordingly, the learned trial judge dismissed the complaint by order dated 29.03.2014. The said order is under challenge in this revision.

On hearing the learned counsel for the revision petitioner, and the learned public prosecutor I find no reason or ground to admit this revision to files. It was submitted by the learned counsel for the revision petitioner that the finding of the trial court is wrong that the revision petitioner will have to pursue civil action. Of course, it is well settled that remedies available in civil action will not stand in the way of prosecution, if the alleged act of the accused will constitute any criminal offence punishable under the Indian penal code or under any special penal statute. The learned counsel cited a decision of the Honourable Supreme Court in Devendra and Others Vs. State of U.P. and Another, . Of course, it is true that remedies available in civil action will not stand in the way of criminal prosecution. But in this case the material question is whether the complaint of the revision petitioner contains anything for a prosecution under the Prevention of Corruption Act.

As stated above, the real subject matter of dispute is an unauthorized construction made by the third respondent herein. On the complaint of the revision petitioner the Panchayath Council took decision to cause demolition of the unauthorized construction, and the first respondent was accordingly authorized by the Panchayath Council. Though the panchayath Council made a repeated resolution, the Secretary did not oblige and instead he made his own enquiry, and kept the matter pending. This is the real grievance of the revision petitioner. He suspects that something wrong has happened or that the third respondent prevailed over the second respondent or that the second respondent has received some bribe. I find on a perusal of the case records that the complaint made by the revision petitioner does not contain any definite material or allegation to show that the second respondent kept the matter pending on the influence of the third respondent, or that the second respondent had received any money or gift from the third respondent. Just because the Panchayat Secretary kept the file pending, the aggrieved complainant cannot jump into criminal action under the Prevention of Corruption Act. As observed by the trial judge, the revision petitioner has many remedies possible. He can proceed against the Panchayath Secretary with appropriate complaint before the Higher authorities, and he can also initiate civil action for enforcement of the resolution made by the Panchayath Council. If any public Officer fails in his duty as a Public Officer, the citizen affected by the decision will have remedies under the law. He will have civil remedies as well as constitutional remedies. A criminal prosecution and that too under the Prevention of Corruption Act, can be resorted to only if there is sufficient material for such a prosecution. The learned trial judge dismissed the complaint on the ground that the complaint does not disclose any offence punishable under the Prevention of Corruption Act, and not on the ground that the revision petitioner has civil remedies. Of course an observation is there that he has civil remedies but I find that dismissal was really on the ground that the complaint does not disclose any offence punishable under the Prevention of Corruption Act. Just because the Secretary did not initiate action as directed by the Panchayath Council, he cannot be prosecuted under the Prevention of Corruption Act. I find that the complaint was rightly dismissed by the trial judge.

There is no explanation why the revision petitioner did not approach the Vigilance before proceeding to file a complaint directly before court. There is also no explanation why he did not so far pursue appropriate civil or other action for enforcement of the resolution made by the Panchayath Council for demolition of the unauthorized construction. It appears that his concern or interest is not in having the resolution enforced, and the unauthorized construction demolished. At the beginning itself I stated that hostility between two neighbours is the real cause behind the complaint. Court process cannot be misused or abused to wreak vengeance. I find no merit in this revision, and I find that the revision petitioner''s complaint was rightly dismissed by the learned trial judge.

In the result, this revision petition is dismissed in limine, without being admitted to files. Dismissal of the revision will not stand in the way of the revision petitioner directly approaching the proper authority with complaint against the Panchayath Secretary.