SRINAGAR: The High Court of Jammu and Kashmir and Ladakh has dismissed a petition by former General Manager of District Industries Centre (DIC), Pulwama, Laiq Parvez, seeking quashing of a corruption FIR against him, holding that the investigation could not be stifled at this stage as it was examining allegations concerning 48 allotments of industrial estates that had already been transferred to SICOP. Justice Shahzad Azeem observed that the question of whether the former officer had abused his official position and conferred undue advantage on beneficiaries required further investigation, and that “to stifle investigation would amount to putting a premium on the alleged acts”.
The judgment was pronounced on August 12, after being reserved on August 4, in CRM(M) No. 140/2020. Parvez, aged about 61, had invoked the High Court’s jurisdiction under Section 482 of the Code of Criminal Procedure, seeking quashing of FIR No. 03/2020 registered on July 7, 2020, by the Anti-Corruption Bureau (ACB), South Kashmir. The FIR invokes Sections 5(1)(d) and 5(2) of the Jammu and Kashmir Prevention of Corruption Act, Svt. 2006, and Section 120-B of the Ranbir Penal Code.
Parvez was represented by senior advocate R A Jan, assisted by advocate Safa Aziz, while the Union Territory of Jammu and Kashmir, through the ACB South Kashmir, was represented by senior Additional Advocate General Mohsin Qadiri, assisted by Additional Counsel Maha Majeed and advocate Haris Khan.
The case relates to Parvez’s tenure as GM, DIC Pulwama, from June 2017 to February 2018. During that period, he issued land allotment orders and executed lease deeds in favour of various industrial unit holders. After his retirement as Programme Officer, ICDS, Kulgam, on April 30, 2019, the ACB served him a questionnaire dated October 17, 2019, alleging that he had acted beyond his competence, violated the Industrial Policy, 2016 and the Procedural Guidelines issued in 2017, and had allegedly entered into a conspiracy with unit holders for personal monetary gains and to confer undue benefits on them.
The verification had its genesis in a written complaint by Mukhtiyar Yousuf, president of the Federation of Chambers of Industries, Kashmir, alleging that DIC Pulwama had become a “hub of corruption” with fixed rates of bribes under the patronage of its General Manager.
Parvez replied to the questionnaire on October 25, 2019, maintaining that the Industrial Policy itself empowered the GM, DIC to allot land and execute lease deeds in specified cases. He relied on Clauses 2.12.1, 2.12.2 and 2.12.5 of the policy and maintained that his actions had remained within the authority vested in him.
The ACB, however, formed the view during verification that Parvez had made land allotments in “gross violation” of the Industrial Policy and the 2017 procedural guidelines, abused his official position and conferred undue advantage on unit holders. This led to registration of the FIR, which alleged that the allotment of land and execution of lease deeds were within the exclusive domain of the Jammu and Kashmir State Industrial Development Corporation Limited (SIDCO) and Jammu and Kashmir Small Scale Industries Development Corporation Limited (SICOP).
Parvez challenged the FIR on the ground that even if the allegations were accepted at face value, they did not disclose the offence of criminal misconduct under the Prevention of Corruption Act. His counsel argued that under the Industrial Policy, the GM, DIC was competent to allot land to MSME unit holders with investment in plant and machinery up to Rs 5 crore and to execute lease deeds. There had been, he maintained, neither abuse of official position nor personal monetary gain or conspiracy.
Senior advocate R A Jan also argued that the 2017 Procedural Guidelines primarily concerned new industrial estates to be notified by SIDCO/SICOP and did not take away the powers conferred on the GM, DIC under the 2016 Industrial Policy. He submitted that the FIR and investigation lacked the necessary “reason to suspect” a cognisable offence and amounted to abuse of the process of law.
The ACB opposed the petition, maintaining that the verification had disclosed serious irregularities. According to its case, Parvez had issued allotment orders and executed lease deeds himself even though the relevant industrial estates had been transferred to SICOP. Industrial Estate Pulwama and Chatpora, measuring less than 500 kanals, had been transferred to SICOP under a government order dated March 3, 2017 and handed over on April 20 that year. Despite the transfer, the ACB alleged, Parvez continued exercising powers that no longer vested in him.
The ACB further informed the court that departmental and expert committees had found irregularities involving approximately 62 units. Some allotments were allegedly made without clearance of the Single Window Clearance Committee (SWCC), some after clearance but without competence, while physical applications were also accepted despite an online-only requirement. Investigation was continuing, with documents relating to 42 units sent for forensic examination, while the role of other officers was also being examined.
Justice Azeem examined the competing interpretations of the Industrial Policy and the 2017 guidelines. While the policy empowered the GM, DIC to allot land to MSME units with investment of up to Rs 5 crore, the court noted that certain formalities had to precede any allotment. The relevant committee was required to assess the size of the plot according to the requirements of the unit. “It is, therefore, clear,” the court said, “that before making any such allotment, the Committee had to assess the size of the plot as per the requirement of the unit.”
The court further noted that the SWCC, headed by the GM, DIC, included representatives of the Power Development Department, State Pollution Control Board and SICOP/SIDCO. Thus, even in cases involving investment of up to Rs 5 crore, the decision was required to be taken by the committee and not by the GM alone.
The court found the petitioner’s principal distinction between land available with DIC and estates under SICOP/SIDCO unsustainable in the circumstances of the case. The case diary showed that Parvez had made 48 allotments in industrial estates that had already been handed over to and taken possession of by SICOP. “Therefore, the distinction sought to be drawn between industrial estates available with DIC and those at the disposal of SICOP/SIDCO becomes wholly irrelevant,” Justice Azeem held.
The investigation was also examining the role of beneficiaries whose applications had earlier been rejected but were later processed and recommended by Parvez, as well as the role of the General Manager, Srinagar and other Corporation officers who allegedly failed to designate a Special Officer or object to the allotments.
The court said the investigation had to establish, among other things, whether undue benefit was actually conferred, whether there was concerted action, whether Parvez acted alone or in league with others, and whether Corporation officers remained silent or facilitated the process.
Justice Azeem rejected the reliance placed by Parvez on Supreme Court judgments concerning quashing of FIRs, noting that the present case was not founded merely on a vague complaint. It followed a formal verification, departmental inquiry and expert committee findings pointing to irregularities in about 62 units. The court also noted that Parvez had accepted physical applications contrary to the online mandate and processed previously rejected cases, which, it said, prima facie indicated undue benefit and abuse of official position.
The court held that the offence under the Prevention of Corruption Act would arise if a public servant, by abusing his official position, obtained for himself or another person a valuable thing or pecuniary advantage. Whether Parvez’s powers had been exercised after the estates were transferred to SICOP, whether SWCC clearance had preceded the allotments, whether selective benefits were conferred and whether the acts resulted in undue advantage were questions requiring collection and evaluation of documentary evidence.
The court also held that the petitioner could not contend that he was bound only by the Industrial Policy and not by the procedural guidelines framed for its implementation. Both had been adopted by the government in exercise of its executive power and the policy had to be implemented in accordance with the prescribed procedure.
On the question of criminal intent, the court said it was “too early to form an opinion” on whether there was reason to suspect mens rea or dishonest intention. At the stage of considering a plea for quashing, the court does not conduct a mini-trial; it only examines whether the FIR and accompanying material disclose the necessary ingredients of the alleged offence.
The court attached particular significance to the fact that the estates in question had been handed over to SICOP on April 20, 2017, before Parvez assumed charge as GM, DIC Pulwama. His continued exercise of allotment powers thereafter, the court said, “would require clear justification”.
“As long as the investigation into the role of the beneficiaries and the officers of SICOP/SIDCO is continuing,” Justice Azeem held, “the court cannot be justified in holding that ‘no reasonable suspicion’ exists and in stifling the investigation against him at this stage.” He added that quashing could be considered after the investigation was complete, or if the material collected against the petitioner at any stage ex facie failed to support the allegations.
The High Court accordingly dismissed Parvez’s petition, holding it to be “bereft of merit”, and directed that the case file be returned to the senior Additional Advocate General for onward transmission to the concerned police station.
