ADDITIONAL COUNTER AFFIDAVIT OF 4TH RESPONDENT velumani former minister advt v elangovan
IN THE HON’BLE HIGH COURT OF JUDICATRE AT MADRAS
(SPECIAL ORIGINAL JURISDICTION)
W.P.No.34845 of 2018
Represented by its Managing Trustee, Jayaram Venkatesan
140 A, Rukmini Lakshmi Pathy Salai, Egmore,
Chennai-600 008. .. PETITIONER
- The Director,
Directorate of Vigilance and Anti Corruption,
No.293, MKN Road, Alandur, Chennai 600 016.
- The State of Tamil Nadu,
Represented by its Chief Secretary,
Fort St George, Chennai-600 009.
- The Superintendent of Police,
Anti Corruption Bureau, Central Bureau of Investigation,
III Floor, Shastri Bhavan, No.26, Haddows Road,
Nungambakkam, Chennai-600 006.
Former Minister for Municipal Administration,
Rural Development and Implementation of Special Programme,
Residing at Old No.11, New No. 10, Ward No.92, Sugunapuram, Kuniyamuthur Post, Coimbatore – 641 008
- Municipal Administration & Water Supply Department,
Government of Tamil Nadu
Represented by its Secretary, Fort St George,
- Greater Chennai Corporation,
Represented by the Commissioner, Rippon Buildings,
Park Town, Chennai-600 003.
- Coimbatore City Municipal Corporation,
Represented by the Commissioner,
2nd Floor, Big Bazaar Street,
Town Hall, Coimbatore-641 001. . . RESPONDENTS
ADDITIONAL COUNTER AFFIDAVIT OF 4TH RESPONDENT
I, S.P.Velumani, son of Late Palanisamy, aged 51years, residing at Old No.11, New No. 10, Ward No.92, Sugunapuram, Kuniyamuthur Post, Coimbatore – 641 008, now come down to Chennai, do hereby solemnly affirm and sincerely state as follows:-
- I am the 4th Respondent in the above Writ Petition, I am conversant with the facts of the case and competent to swear to this affidavit.
- The present counter affidavit is filed in reply to the additional affidavit filed by the Petitioner dated 12.07.2021 before the hearing on 19.07.2021 bringing on record of certain CAG reports. I deny every allegation in the said Affidavit of the petitioner. I have filed a detailed counter affidavit on 01.11.2019 inter alia denying my involvement in any of the allegations made by the petitioner in the main Writ Petition. I pray this Hon’ble Court to treat the said counter affidavit as part and parcel of this additional counter affidavit. Since there have been several incidents that have transpired after the last hearing, I am also filing this affidavit to bring on record those incidents and pray that the present Petition in the nature of a Public Interest Litigation be dismissed.
- I submit that the writ petitioner cannot be allowed to use the PIL for conducting an investigation or to assume the character of fishing and rowing enquiry. It would not be permissible in law to permit a vested interest group or the petitioner to linger, limp and continue on the basis of a mere hope and expectation that in the investigation some material may be found to implicate my name. Such a course of action is not contemplated in the system of criminal jurisprudence that has been evolved by this Hon’ble Court over the years.
- I submit that the writ petitioner is doing champerte for a rival political party with a view to annihilate my political career and also to damage the political party which I belong to. I submit that the writ petitioner is conducting the above PIL as a proxy for a vested group which has targeted me for an oblique motive and for extraneous reasons, which is evident from the fact that the writ petitioner is still pursuing the matter even after the registration of FIR in Crime No. 16 of 2021 by the DV AC, Head Quarters, Chennai. I submit that the PIL by an organization which projects itself as a crusader of the public cause cannot be allowed to conduct a parallel investigation since the petitioner is in no way connected with the criminal investigation. I submit that the writ petitioner has made imputations and scathing remarks here and there by linking my name in the award of all contracts given by the respondents 6 and 7. I strongly deny all those allegations as baseless and motivated.
- I submit that the investigation conducted by a team headed by Mrs. Ponni, IPS came with a report that, absolutely, no allegations even prima facie, for establishing or proving my involvement in the award of contract to the registered contractors who took part in the eAuction conducted by the respondents 6 and 7. Under such circumstances, the writ petition in the present form and on the allegations leveled is clearly not maintainable against me.
- I submit that unfortunately, the writ petitioner has made cantankerous allegations against me in a chain of affidavits filed, without even understanding and appreciating as to the manner of award of various contracts by the respondents 6 and 7. In order to avoid repetition, I pray this Hon’ble Court to consider the counter affidavits filed by the respondents 6 and 7 independently, which would expose and exemplify the fact that all the contracts were and are awarded strictly in conformity with the provisions of the Tamilnadu Transparency in Tenders Act. Unfortunately but wontedly, the writ petitioner has causally linked my name with all the contractors as per his whims and fancies to magnify the issue before this Hon’ble Court.
- I submit that I strongly believe that my political rivals and the hands of the contractors who failed to succeed in the bid, have formed a syndicate to ventilate their commercial/oblique motive through the writ petitioner. If the unsuccessful bidders in the contracts have any grievance, it is open for them to challenge the same in the manner known to law. But they are conducting a shadow and proxy litigation through the writ petitioner. Hence, the petitioner has not approached this Hon’ble Court with clean hands, and he is backed by the contractors as evident from the documents produced by the writ petitioner himself.
- I submit that all the contracts are invited through eTender after due advertisement in the Tamil and English daily newspapers, besides that the online tenders are uploaded in the website being operated by the National Information Centre of the Union of India. The respondents 6 and 7 have categorically stated that in order to maintain the transparency in the award of contracts, they have adopted various modalities by way of eTender and also uploading the tenders in the website. I submit that the respondents 6 and 7 have minutely examined all the allegations made in the affidavits filed by the writ petitioner and answered each and every aspects in their counter affidavits.
- I submit that I was totally not concerned with the method for award of contracts since it is for the concerned authorities/respondents 6 and 7 to act as per the procedure prescribed under the TN Tender Transparency Act. I understood from the allegations made by the writ petitioner that he has linked the names of all the successful contractors as my close aids and treated all the unsuccessful contractors as his informants or supporters, to make all kinds of allegations against me to wreak vengeance. Unfortunately, the writ petitioner has not relied upon the stand taken by the respondents 6 and 7 during the course of his arguments, since because they are unfavourable to his case.
- I submit that I have been unnecessarily targeted by a vested interest group who dislikes my political developments. I have been maintaining absolute integrity in my public life, and I never involved this kind of cheap politics through proxy litigations. I submit that I never had any role in the award of contracts by the respondents 6 and 7, particularly, when the eTenders were conducted in a fair and transparent manner. To my knowledge, this Hon’ble Court did not interfere with any of the contracts awarded by the respondents 6 and 7, whenever they were put under challenge.
- I submit that the writ petitioner has filed the above writ petition under misconception about my hands in the award of contract and tarnished my name in the public life. Above all, award of contracts cannot be done as it has been projected by the writ petitioner. It is a cumbersome process prescribed under the TN Transparency in Tenders Act, 1998 and Rules framed thereunder. I submit that the writ petitioner has not made out any irregularity or illegality in the award of contract made by the respondents 6 and 7 from the minute details in the counter affidavits. These are technical issues and the petitioner cannot misquote for his likings.
- I submit that this Hon’ble Court, by order dated 18.10.2019 directed Ms. R. Ponni, IPS, Superintendent of Police, DV & AC to conduct an enquiry. Accordingly, the Superintendent of Police has nominated the following officers:
- Ms. S.P. Pavanya, AdSP, V&AC, CSU-I, Chennai-16
- Mr. S. Shankar, DSP, CC-I, V&AC, Chennai – 16
- Mr. V. Baskaran, DSP, SIC, V&AC, Chennai – 16
- Mr. Nivasan, Inspector of Police, V&AC, Kanchipuram
Ms. R. Ponni, IPS and her team conducted an enquiry and a report was submitted on 16.12.2019 to the Directorate. Further, during the course of the enquiry, the Special Team examined 129 witnesses and perused 1132 documents besides conducting an enquiry about the confidential documents such as bank details, electronic data relating to IP addresses in respect of the private individuals and their concerned establishments. A copy of the said report was also submitted in a sealed cover before this Hon’ble Court on 23.01.2020.
- I submit that the Enquiry Report submitted to the DV & AC was forwarded to the Government through the Vigilance Commission on 20.01.2020. The Government proceeded to accept the report and further action against me was dropped in Lr. No. AC/480-3/2018, Public (SC) Department, dated 22.01.2020. on the basis of the decision made by the Government, the Chief Secretary had filed a petition in W.M.P.No.4747 of 2020 in W.P.No.34845 of 2018 praying for a direction to dispose the above writ petition as having infructous . The above petition in W.M.P.No.4747 of 2020 is pending.
- I submit that the Special Team had also collected the details with regard to the private organizations and their business transactions with a view rule out the possible suspicious circumstances raised by the petitioner. I submit that absolutely no incriminating materials were pointed out or collected to justify the allegations leveled against me. In effect, allegations are made casually, not made out. Further, I came to know about all these details from the counter affidavit dated 03.12.2020 filed by the 3rd respondent in the above W.P.No.34845 of 2018 and Crl.O.P.No.23428 of 2018.
- I submit that an enquiry was conducted in detail, which falsifies the scandalous allegations made against me by the petitioner. Now the order dated 22.01.2020 made in AC/480-3/2018 issued by the Public (SC) Department, State of Tamilnadu would lend support to prove my innocence. I submit that the said decision dated 22.01.2020 has not been challenged or tested so far. Anyone affected by an order ought to seek redress against the same within the permissible limits of law. I submit that the investigation report dated 16.12.2019 which was accepted by the 1st respondent and later acted on by the Government to give a quietus to the issue. The Petitioner herein had also filed an affidavit dated 01.02.2021 for a copy of the said report, which was opposed by the DV & AC.
- I submit that the writ petition as such is liable to be dismissed in view of the above developments, and more so, the above decision taken by the respondents 1, 3 and the State Government cannot be branded as not binding on its forehead. I submit that the above investigation report dated 16.12.2019 and the decision taken on 22.01.2020 cannot be branded as binding on one person and not binding on other person for a different purpose. Thus, the issue which has been concluded cannot be reopened again and again until the petitioner gets the desired result. It is clearly impermissible and beyond the purview of the PIL.
- I submit that the writ petitioner has filed the above writ petition praying this Hon’ble Court to direct the 1st respondent to register an FIR on the basis of his complaint dated 12.09.2018 and to monitor the investigation to be conducted. Pending the above writ petition, the 3rd respondent has misconstrued the observation made in the order of adjournment dated 19.07.2021, as if, a positive direction, to register a false case in Crime No. 16 of 2021 dated 09.08.2021 for the alleged offence under Sections 120-B r/w 420, 409 IPC and Sections 13 (2) r/w 13 (1)(c) and 13 (1) (d) of the Prevention of Corruption Act r/w Sec. 109 IPC. Therefore, the first part of the prayer becomes infructuous in view of the registration of the FIR.
- I submit that while this Hon’ble Court was to take up the matter to enquire into the Report which was submitted to this Court on 23.12.2019, the DV & AC and the State Government, with the active aid of the petitioner, using the excuse of a CAG report which in my submission had nothing to do with the pending report, made a submission at the hearing on 19.07.2021 that the State would investigate further based on the CAG report. Misconstruing the observations of this Hon’ble Court, the DV & AC had proceeded to register the above mentioned FIR against me. It is submitted that the respondents are now trying to cover-up the report submitted on 23.01.2020 before this Hon’ble Court and proceed against me based on their own assumptions.
- It is submitted that now that DV & AC registered a FIR, the report which is filed before this Hon’ble Court will not even be made part of the Case files. It is submitted that since the report has not been made public and was not yet examined by this Hon’ble Court but that the action in contrary to the report which has already been taken. Hene it is just and necessary that a copy of the said report has to be given to me and made part of the case files in FIR No. 16/2021.
- I submit that the second part of the prayer does not survive, in view of the change in the factual situation. The above writ petition was filed to tarnish my public image on the eve of general election, which had been achieved by the writ petitioner. Further, I was a Minister in the State Government, when the above writ petition was filed. Now, I am no longer a Minister or I never had any hold in and over the respondents 1 to 3, as allegedly apprehended by the writ petitioner. More so, nowhere in the affidavit, the petitioner has made out a case to persuade this Hon’ble Court to monitor the investigation till the FIR reached its logical end.
- I submit that I never and ever have had any dealings with the alleged eAuction conducted by the respondents 6 and 7. Be that as it may, now, the respondents 1 and 3 are conducting a fresh investigation in Crime No. 16 of 2021, unmindful of the investigation concluded on 16.12.2019 and further action dropped by the Government in Lr. No. AC/480-3/2018 dated 22.01.2020. I submit that legally the respondents 1 and 3 are estopped from conducting a de nova enquiry or investigation in respect of a concluded enquiry, by taking advantage of the change in the political scenario. I submit that it is neither desirable nor permissible for the respondents 1 to 3 to pick out a word or a sentence from the order dated 19.07.2021 passed by this Hon’ble Court, as a positive direction to act upon it. However, the writ petitioner has achieved the object.
- I submit that in so far as the second portion of the prayer is concerned, by the subsequent event, the relief prayed for in the above writ petition has become infructuous, hence, ex debito justitiae, in the interest of justice, the above writ petition has to be disposed of as no further order is necessary. In fact, the 2ndrespondent has filed WMP No. 4747 of 2019 under Sec. 151 CPC to dispose of the above WP No. 34845 of 2018 as infructuous in view of the subsequent events which have taken place in favour of the petitioner. Hence, the petitioner cannot expect this Hon’ble Court to keep the writ petition pending and continued solely for the purpose of achieving the motive of someone behind. Thus, I pray this Hon’ble Court to dispose of the writ petition as infructuous.
- I submit that the prayer for supervision of the investigation in Crime No. 16 of 2021, registered pending the above writ petition, would amount to interfering with the power of the policeunder Sections 3 and 4 of the Police Act, 1861. In the present case, the Special Team headed by an IPS officer appointed by this Hon’ble Court carried out their public duty to investigate the complaint and filed a detailed report. Unmindful of the same, now the 3rd respondent has registered a case in Crime No. 16 of 2021 by misquoting the order dated 19.07.2021 passed by this Hon’ble Court. Under such circumstances, retaining the above writ petition pending or directing the mode of investigation would prejudice my right of fair hearing.
- I submit that in view of the subsequent events and change in the political situation, the alleged apprehension expressed by the writ petitioner has got no significance. I submit that the manner of investigation is prerogative of the police as per the procedure prescribed in the Code of Criminal Procedure, and the petitioner cannot expect the investigating agency to keep them under a pressure, with an oblique motive to expect the desired result. I submit that any such expectation would expose the personal interest of the writ petitioner in the above matter, particularly, in the absence of any specific allegation is made against the officers who are investigating the FIR in Crime No. 16 of 2021.
- I submit that the prayer in the above writ petition to monitor the investigation of the case against me does not arise for consideration in view of the subsequent change in the political scenario. Indisputably, I am no longer a Minister, and even otherwise, I never had any nexus or access with the law enforcing authorities to scuttle the process of fair and independent investigation. The situation prevailed at the time of filing the writ petition is no longer exists now. Thus, the prayer for monitoring the investigation of Crime No. 16 of 2021 does not arise. Further, it would cause serious prejudice to my right of defence in the FIR under investigation. The continuation of this Writ Petition would create further prejudice to my legal remedies in as much as any legal forum which I approach would be awaiting the outcome of the present Writ Petition.
In light of the all the above submissions, it is prayed that this Hon’ble Court be pleased to provide me with a copy of the preliminary enquiry report filed by the 3rd respondent into this Hon’ble Court on 23.12.2019, with a direction to make the said report as part of the case files and dispose the above Writ Petition as having become infructuous and thus render justice.
Solemnly affirmed at Chennai, X
this the 6th day of October X BEFORE ME,
2021 and signed his name in X
my presence. X
ADVOCATE : CHENNAI.
10th & Last Page:
DISTRICT : CHENNAI
HIGH COURT: MADRAS
W.P.No. 34845 of 2018
ADDITIONAL COUNTER AFFIDAVIT
OF 4TH RESPONDENT
M/s. V. ELANGOVAN & 1107/1991
- MANOKARAN. 821/1995
– COUNSEL FOR 4th RESPONDENT –